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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State of Alaska, Office of Lieutenant Governor, Division of Elections and Director Gail Fenumiai, in an official capacity v. Recall Dunleavy (7/16/2021) sp-7542

State of Alaska, Office of Lieutenant Governor, Division of Elections and Director Gail Fenumiai, in an official capacity v. Recall Dunleavy (7/16/2021) sp-7542

            Notice:   This opinion is subject to correction before publication in the P                                ACIFIC  REPORTER.  

            Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

                                                                                                                                       

            303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                                          

            corrections@akcourts.gov.  



                         THE SUPREME COURT OF THE STATE OF ALASKA                                                                     



STATE  OF  ALASKA,  OFFICE  OF                                           )  

LIEUTENANT  GOVERNOR,                                                    )     Supreme Court No. S-17706  

                                                                                                                     

DIVISION  OF  ELECTIONS  and                                             )  

DIRECTOR  GAIL  FENUMIAI,  in  an                                        )     Superior  Court  No.  3AN-19-10903  CI  

official  capacity,                                                      )  

                                                                         )                            

                                                                               O P I N I O N  

                                    Appellants,                          )  

                                                                         )                                           

                                                                               No. 7542 - July 16, 2021  

            v.                                                           )  

                                                                         )  

                    

RECALL DUNLEAVY,                                                         )  

                                                                         )  

                                    Appellee.                            )  

                                                                         )  



                        A                                                                                                   

                           ppeal from the Superior Court of the State of Alaska, Third  

                                                                                                        

                        Judicial District, Anchorage, Eric Aarseth, Judge.  



                                                                                                                     

                        Appearances:                 Margaret  Paton  Walsh,  Assistant  Attorney  

                                                                                                                    

                        General,  Anchorage,  and  Kevin  G.  Clarkson,  Attorney  

                                                                                                                             

                        General, Juneau, for Appellants.  Jahna M. Lindemuth, Scott  

                                                                                                                                  

                        M.  Kendall, and Samuel G. Gottstein, Holmes Weddle &  

                                                                                                                       

                        Barcott, PC, Anchorage, Susan Orlansky, Reeves Amodio  

                                                                                                                             

                        LLC,  Anchorage,  and  Jeffrey  M.  Feldman,  Summit  Law  

                                                                    

                        Group, Anchorage, for Appellee.  



            *  

                        Sitting by assignment made under article IV, section 11 of the Alaska                                                     



Constitution and Alaska Administrative Rule 23(a).                                  


----------------------- Page 2-----------------------

                     Before:   Winfree, Stowers, Maassen, and Carney, Justices,                         

                                                                      *   [Bolger, Chief Justice, not  

                     and Eastaugh, Senior Justice.                                                               

                     participating.]  



                     MAASSEN, Justice.
  

                                            

                      STOWERS, Justice, dissenting in part.
  

                                                                             



I.         INTRODUCTION  



                     A recall committee submitted an application to the director of the Alaska  

                                                                       



Division of Elections seeking to recall the governor.   The application cited lack of  

                                                                                                                                        



fitness, incompetence, and neglect of duties as grounds for recall and made four different  

                                                                                                                              



allegations  of  how  those  grounds  were  met.                                The  director  refused  to  certify  the  

                                                                                                                                      



application, asserting that it was not legally or factually sufficient.  

                                                                                                             



                     The committee challenged the director's decision in the superior court.  

                                                                                                                                             



That court granted summary judgment for the committee, deciding that except for one  

                                                                                                             



allegation, which it struck, the allegations in the committee's application were legally  

                                                                                                                                 



and factually sufficient.  The committee was allowed to move on to the second phase of  

                                                                                                                                        



signature-gathering on its recall petition; if it was successful, the director would call a  

                                                                   



special election to allow the voters to decide whether the governor should be recalled.  

                                                                                                                             



                     The State appealed, and we affirmed the superior court's decision in a  

                                                                                                                                         



summary  order  with  an  opinion  to  follow.                               We  explain  in  this  opinion  why  the  

                                                                                                                                      



committee's recall application satisfied the legal requirements for presentation to the  

                                                                                                                                      



voters.  

              



II.        FACTS AND PROCEEDINGS  

                                    



                     TheAlaskaConstitution authorizes thepeopletorecall elected officials and  

                                                                                                                                      

directs the legislature to establish the grounds and procedures for recall.1   In September  

                                                                                                                          



           1  

                                                                                                                                       

                     Art. XI, § 8; see AS 15.45.470-.720 (providing statutory framework for  

                                                                                                                     (continued...)  



                                                                   -2-                                                                 7542  


----------------------- Page 3-----------------------

                                                                                               2  

2019, after gathering the requisite number of signatures,                                        the Recall Dunleavy recall           



committee filed an application with the Division of Elections to recall Governor Mike   



                 3                                                                                         4  

                                                                                             

Dunleavy.            The application contained this statement of grounds: 



                                                                                                                     

                      Neglect of Duties, Incompetence, and/or Lack of Fitness, for  

                                              

                      the following actions:  



                                                                                                                     

                      Governor  Dunleavy  violated  Alaska  law  by  refusing  to  

                                                                                                                  

                      appoint a judge to the Palmer Superior Court within 45 days  

                                            

                      of receiving nominations.  



                                                                                                     

                      GovernorDunleavyviolated Alaskalawand theConstitution,  

                                                                                                              

                      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.  



                                                                                                                   

                      Governor           Dunleavy            violated         separation-of-powers                  by  

                                                                                                                   

                      improperly  using  the  line-item  veto  to:                               (a)  attack  the  

                                                                                                         

                      judiciary and the rule of law; and (b) preclude the legislature  

                                                                                                                  

                      from  upholding  its  constitutional  Health,  Education  and  

                                     

                      Welfare responsibilities.  



                                                                                                        

                      Governor Dunleavy acted incompetently when hemistakenly  

                                                                                                                    

                      vetoed  approximately  $18  million  more  than  he  told  the  

                                                                                                                           

                      legislature in official communications he intended to strike.  

                                                                                                                   

                      Uncorrected, the error would cause the state to lose over $40  

                                                                                       

                      million in additional federal Medicaid funds.  



           1          (...continued)  



recall).  



           2          See   AS   15.45.500(3)   (requiring  number   of   signatures   on  recall  petition  



"equal  in  number  to   10  percent  of  those  who  voted  in  the  preceding  general  election").  



           3          See AS  15.45.480 (providing that recall process  is initiated by filing of  

                                                                                                                                            

application).  



           4          See AS  15.45.510 (listing grounds for recall).  

                                                                                       



                                                                     -3-                                                              7542
  


----------------------- Page 4-----------------------

                             References:    AS    22.10.100;   Art.    IX,  sec.    6    of    Alaska  

                             Constitution; AS 39.52; AS 15.13, including .050, .090, .135,                                                            

                             and          .145;           Legislative                  Council                (31-LS1006);                       ch.1-2,  

                             FSSLA19; OMB Change Record Detail (Appellate Courts,                                                               

                                                                                                                    [  ]  

                             University, AHFC, Medicaid Services).                                                   5   



                             Byletter datedNovember 4, 2019, theDivision's director notifiedtherecall  

                                                                                                                                                                                  



committee that she was denying certification of their application.  The director cited the  

                                                                                                                                                                                       



attorney general's advice that although the application met "the technical requirements  

                                                                                                                                                                 



of the recall statutes," it was "not substantially in the required form" as required by  

                                                                                                                                                                                       



AS 15.45.550(1) because "the statement of grounds for recall [was] not factually and  

                                                                                                                                                                                     

legally sufficient for purposes of certification."6  

                                                                                                           



                             The recall committee challenged the director's decision by bringing this  

                                                                                                                                                                 

lawsuit.7             The parties filed cross-motions for summary judgment,8  

                                                                                                                                                 and in January 2020  

                                                                                                                                                                                  



the superior court concluded that, with one exception, the recall application should have  

                                                                                                                                                                                   



been certified. The court found that each of the recall application's allegations described  

                                                                                                                                                                         



with particularity for-cause grounds for recall with the exception of the third paragraph's  

                                                                                                                                                                    



               5             See  AS 15.45.500(2) (requiring that "grounds for recall [be] described in                                                                                  



particular in not more than 200 words").                                                      Here, the attorney general's advice to the                                              

director gave an approximate word count of 189 including the "references section" but                                                                                                 

"not including subsection letters such as (a) or (b), and with statutory citations treated                                                                                    

as one word (i.e., 'AS #')."                                 That the count is under 200 words appears undisputed.                                                                       



               6             See AS 15.45.550 (listing bases for denial of certification).  

                                                                                                                                 



               7             See  AS  15.45.720  (providing  right  to  judicial  review  of  Division's  

                                                                                                                                                                     

determination).  



               8             See Alaska R. Civ. P. 56(c) (allowing summary entry of judgment without  

                                                                                                                                                                             

trial when undisputed facts demonstrate party is entitled to judgment as matter of law).  

                                                                                                                                                                                  



                                                                                           -4-                                                                                    7542
  


----------------------- Page 5-----------------------

                                                                                     9  

subpart (b), which the court struck.                                                     The court ordered the Division to prepare petition                                                    



                                                                                                                                         10                                                                   11  

booklets containing the four legally sufficient allegations.                                                                                                                                                       

                                                                                                                                               The State filed this appeal. 



                                We held oral argument on March 25, 2020, then asked the parties for  

                                                                                                                                                                                                          



supplemental briefing on issues raised by the recall application's third paragraph about  

                                                                                                                                                                                                    



an alleged violation of the separation of powers: the historical basis of the line-itemveto,  

                                                                                                                                                                                                      



constitutional limits on the line-item veto, and the legal framework we should use in  

                                                                                                                                                                                                             



analyzing the third paragraph's legal sufficiency.  

                                                                                                                         



                                On May 8, after considering the supplemental briefs, we issued an order  

                                                                                                                                                                                                     



affirming  the superior  court's decision  of the issues now on  appeal.                                                                                                          This opinion  

                                                                                                                                                                                              



explains our reasoning.  

                                                           



III.            THE CONSTITUTIONAL AND STATUTORY BASIS FOR RECALL  

                                                                                                                                                                               



                                "The Alaska Constitution provides that all political power is inherent in  

                                                                                                                                                                                       



                9               Paragraph3(b)alleged,"Governor Dunleavyviolatedseparation-of-powers                                                             



by improperly using the line-item veto to . . . preclude the legislature from upholding its                                                                                                                 

constitutional Health, Education and Welfare responsibilities."                                                                                         The superior court held                        

that   this   allegation   did   not   implicate   a   prescribed   ground   for  recall:    because   the  

Legislature has the ability to override a Governor's veto, "a Governor can never prevent                                                                                                        

the Legislature from fulfilling its Constitutional duties with his/her veto power."                                                                                                                    The  

superior court amended the third allegation to read:                                                                                  "Governor Dunleavy violated                            

separation-of-powers by improperly using the line-item veto to attack the judiciary and                                                                                                                  

the rule of law."                        



                10              See  AS  15.45.560.                                    The  superior  court  later  entered  a  stay  on  the  

                                                                                                                                                                                                         

preparation of booklets pending this appeal. We lifted the stay, and the recall committee  

                                                                                                                                                                                         

began the second phase of signature gathering on February 21.   See  AS 15.45.610  

                                                                                                                                                                                         

(providing that a petition may be filed "only if signed by qualified voters equal in  

                                                                                                                                                                                                            

number to 25 percent of those who voted in the preceding general election").  

                                                                                                                                                                  



                11              An independent expenditure group, Stand Tall With Mike, participated in  

                                                                                                                                                                                                             

the proceedings in the superior court but chose not to participate in this appeal.  

                                                                                                                                                                                                 



                                                                                                      -5-                                                                                             7542
  


----------------------- Page 6-----------------------

                                                                                                                12  

Alaska's people and 'founded upon their will only.' "                                                                  The people exercise their                  

political power in a number of ways, including by voting in state and local elections,                                                                                  13  



                                                                                                                                                           14     As a  

rejecting legislative acts by referendum, and legislating directly by initiative.                                                                                

                                                                                                                                         



corollary to the constitutional right to elect their leaders, the people have the right to  

                                                                                                                                                                        

petition to recall those they earlier put in office.15                                                Article XI, section 8 of the Alaska  

                                                                                                                                                             



Constitution provides:  

                          



                          All  elected  public  officials  in  the  State,  except  judicial  

                                                                                                                                 

                           officers, are subject to recall by the voters of the State or  

                                                                                                                                             

                          political subdivision from which elected.   Procedures and  

                                                                                                                                          

                          grounds for recall shall be prescribed by the legislature.  

                                                                                                                                            



The right of recall, along with the referendum and the initiative, gives "voters a check  

                                                                                                      



on the activities of their elected officials above and beyond their power to elect another  

                                                                                                                                                             



             12           Meyer v. Alaskans for Better Elections                                       , 465 P.3d 477, 478 & n.1 (Alaska           



2020) (quoting Alaska Const. art. I, § 2 ("All political power is inherent in the people.                                                                                    

All government originates with the people, is founded upon their will only, and is                                                                                      

instituted solely for the good of the people as a whole.")).                                  



             13           Alaska Const. art. V, § 1 ("Every citizen of the United States who is at least  

                                                                                                                                                                   

eighteen years of age, who meets registration residency requirements which may be  

                                                                                                                                                                       

prescribed by law, and who is qualified to vote under this article, may vote in any state  

                                                                                                                                                                   

or local election.").  

                 



             14           Alaska Const. art. XI, § 1 ("The people may propose and enact laws by the  

                                                                                                                                                                      

initiative, and approve or reject acts of the legislature by the referendum."); see also  

                                                                                                                                                                   

AS 15.45.010-.245 (providing procedures for law-making by initiative); AS 15.45.250- 

                                                                                                                                                      

.465 (providing procedures for approving or rejecting legislative acts by referendum).  

                                                                                                                                                 



             15           See Unger v. Horn, 732 P.2d 1275, 1277 (Kan. 1987) (explaining nearly  

                                                                                                                                       

identical provision in Kansas Constitution:  "The electors are as qualified to determine  

                                                                                                                                                        

the capability and efficiency of their elected officials, after giving those officials an  

                                                                                                                                                                       

opportunity to perform the duties of their offices, as they were when they first selected  

                                                                                                                                                            

the officials to fill the positions.").  

                                             



                                                                                   -6-                                                                           7542
  


----------------------- Page 7-----------------------

                                                                           16  

candidate when the incumbent's term expires."                                   



                                                                                                                          

           A.        The Constitutional Source Of The Right To Recall Elected Officials  



                                                                                                                             

                     The right to recall elected officials appeared in the American political  



                                                                                                                                       17  

                                                                                                                                            

                                                                                                                   

systemin the early 1900s, "frequently as acompanionto the initiative and referendum." 



                                                                                                                                  

The  right was codified  in  Alaska territorial law; the listed  grounds for  recall were  



                                                                       18  

                                                                                                                               

malfeasance, misfeasance, and nonfeasance.                                  The right was preserved at the Alaska  



                                                                                                                            

ConstitutionalConventionpreceding statehood. Adrafting committeeinitially proposed  



                                                                                                                                            

a provision  that reflected  territorial law and  listed  four  specific grounds for  recall:  



                                                                                                                                 

malfeasance, misfeasance,  nonfeasance,  and conviction  of a crime involving  moral  



                19  

turpitude.           



                                                                                                                             

                     Convention  debates  illustrate  the  tension  between  prescribing  specific  



                                                                                                                                    

boundaries for the right of recall and leaving its scope completely to the voters.  The  



                                                                                                                                

convention first discussed changing "acrimeinvolving moral turpitude"to just "a crime"  

                                                               20   Delegate John Hellenthal, who proposed the  

                                                                                                                                      

in order to give the voters more latitude. 



amendment, argued that "[a]ny 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  

                                                                                                                               



           16        Meiners  v.  Bering  Strait  Sch.  Dist.,  687  P.2d  287,  294  (Alaska   1984).   



           17        Id.   



           18        Id.  (citing  ch.  90,  SLA   1949).  



           19        Constitutional Convention   Committee's   Proposal   No.   3   (Dec.   9,   1955)  



("Section  6.   Every  elected  public  official  in  the  State,  except  judicial  officers,  is  subject  

to  recall  by  the  voters  of  the  State  or  subdivision  from  which  elected.   Grounds  for  recall  

are  malfeasance,  misfeasance,  nonfeasance,  or  conviction  of  a  crime  involving  moral  

turpitude.   The  legislature  shall  prescribe  the  recall  procedures.").  



           20        See 2 Proceedings of the Alaska Constitutional Convention (PACC) 1207- 

                                                                                                                                  

16 (Jan. 4, 1956).  

                   



                                                                   -7-                                                            7542
  


----------------------- Page 8-----------------------

                                                                    21  

for   them   to   warrant   signing  the   petition."                      Delegate   Ralph   Rivers   opposed   the  



amendment,  arguing  that  an  official  should  not  be  subject  to  recall  for  misdemeanors  



                                                                           22  

such   as   minor   traffic   offenses   or   jaywalking.                        The   delegates   voted   down   the  

amendment.23  



                    Delegate Vic Fischer  then  proposed deleting  the specified grounds for recall  



in  favor  of  allowing  the  voters  to  decide  in  each  instance  whether  the  grounds  alleged  by  

recall   proponents   were   sufficient.24  

                                                          Delegate   Hellenthal   supported this amendment,  



                                                                                                            25  

noting  that  no  other  state's  constitution  prescribed  the  grounds  for  recall;                         he  argued  that  



the   convention   could  always   amend   the   provision   later   to   give   that   task   to   the  



                 26                                                                                   27  

legislature.         The  delegates  agreed  to  delete  the  specified  grounds.                         



          21        Id.  at   1207-08  ("[A]  public  official  unlike  an  ordinary  citizen   should be  



beyond  reproach,   and   irrespective   of  the  nature   of  the   crime  he   should  be   subject  to  

recall.   That  does  not  mean  he  has  to  be  recalled  if  he  commits  a  crime,  but  he  should  be  

subject  to  recall.").  



          22        Id. at 1209-10.  

                              



          23        Id. at 1212.  

                              



          24        Id.  at  1214-15  ("[E]very  public  official  should  be  liable  to  recall  for  

                                                                                                                     

whatever grounds the people feel are justified.  . . .  Let['s] leave it to the people.  If they  

                                                                                                                              

feel a man should be kicked out of his job,  let the people do it.").  

                                                                                             



          25        Id. at 1216.  

                              



          26        Id.  ("If there  is  any  doubt  about whether  the  grounds  can be  properly  

                                                                                                                       

prescribed by the legislature, a very simple amendment to line 7 adding the words, 'The  

                                                                                                                              

legislature shall prescribe the recall procedure and grounds' therefore would solve it.").  

                                                                                                                                      



          27        2 PACC 1222 (Jan. 5, 1956).  

                                                                   



                                                                -8-                                                         7542
  


----------------------- Page 9-----------------------

                        The delegates next discussed whether they should direct the legislature to                                                       

provide the grounds for recall by statute or let the voters decide on a case-by-case basis.                                                              28  



                                                                                                      29  though he proposed that the  

 Delegate Fischer again urged that it be left to the voters,                                                                                           

                                                                                          

                                                                                                         30     Other  delegates  voiced  

constitutional  provision  include  more  procedural  detail.                                                                                  

                                                                                              



concern about covering too much ground in the Constitution and spending too much of  

                                                                                                                                                        

the convention's time on minutiae.31                                Delegate Fischer's amendment was rejected.32  

                                                                                                                                     



                        Delegate  Barrie  M.  White  proposed  another  amendment  allowing  the  

                                                                                                                                                      

people to determine the grounds for recall.33   He argued that "[t]he vital part of the recall  

                                                                                                                                                  



movement . . . is that the people retain not only the right to recall a public official but to  

                                                                                                                                                         



name the reasons for instituting such action and let the action itself stand or fall on the  

                                                                                                                                                       



            28          Id.  at   1222,   1233-34.  



            29          Id.  at   1233-34.   



            30          Delegate  Fischer  proposed  specifying  the  number  of  signers  needed  for  a  



valid   recall   petition,   requiring   a   200-word   statement   of   the   grounds  for   recall,   and  

specifying  the  time  within  which  a  recall  election  should  be  held.   Id.  at   1233.   He  also  

recommended  amending  the  section  to  specifically  authorize  the  legislature  to  prescribe  

additional  procedures.   Id.  at   1234.   



            31          See, e.g., id. at 1234 (statement of Del. Frank Barr) ("Some of us forget that  

                                                                                                                                                      

we  were  sent here  to  write  a  constitution, not  to  make  detailed  laws.");  id.  at 1235  

                                                                                                                                              

(statement of Del. Robert J. McNealy)  ("[I]f we  continue we may not have the best  

                                                                                                                                                     

constitution in the United States but we will sure have the longest."); id. (statement of  

                                                                                                                               

Del. Irwin L. Metcalf) (stating he would vote against this amendment and comparing it  

                                                                                                                                                          

to  modern  technology  that  may  be  "modern  today  and  outmoded  tomorrow.");  id.  

                                                                                                                                                       

(statement of Del. Douglas Gray) ("I believe the authority for the recall is all that is  

                                                                                                                                                         

necessary, and the legislature can take care of this affair.  I just feel that putting through  

                                                                                                                                              

another recall [amendment] will take another three or four days in this delegation.").  

                                                                                                                                



            32          Id. at 1237.  

                                              



            33          Id.  

                               



                                                                           -9-                                                                     7542
  


----------------------- Page 10-----------------------

                                          34  

merits of the case."                            Delegate James Hurley disagreed:                                             "I think it is fair to leave it to                           



the legislature to prescribe the grounds under which a recall petition should be circulated                                                                              



so as to prevent circulation of recall petitions for petty grounds in local jurisdictions by                                                                                             



some recalcitrant officer who was not elected, which I have seen happen in my own                                                                                                   



                             35  

community."                        



                             The convention ultimately adopted the language now in Article XI, section  

                                                                                                                                                                               

8, leaving it to the legislature to prescribe the grounds and procedures for recall.36                                                                                              And  

                                                                                                                                                                                     

despite the delegates' "spirited debate" on the subject,37  no consensus emerged about  

                                                                                                                                                                                  



what the grounds for recall should be.  Without substantive guidance on this issue from  

                                                                                                                                                                                    



theConstitution's framers, theAlaskalegislaturein 1960 firstprescribed thegrounds and  

                                                                                                                                                                                       



procedures for recall of state officials now codified in AS 15.46, and in 1972 it first  

                                                                                                                                                                                     



prescribed  the  grounds and  procedures for  recall of local officials now codified  in  

                                                                                                                                                                                         

AS 29.26.38  

         



               B.            The Statutory Procedures For Recall Of Elected Officials  

                                                                                                                                                



                             In the various states with a right of recall, the people's power spans a  

                                                                                                                                                                             



spectrum.  "At one end of the spectrum is the view that recall is 'special, extraordinary,  

                                                                                                                                                               



and  unusual,'  and  produces  the  'harsh'  result  of  removing  an  official  prior  to  the  

                                                                                                                                                                                      



               34            Id. ;  Meiners  v.  Bering  Strait  Sch.  Dist.,  687  P.2d  287,  295  (Alaska   1984).  



               35            2  PACC   1238-39  (Jan.  5,   1956);  Meiners,  687  P.2d  at  295.  



               36            2  PACC   1239-40  (Jan.  5,   1956);  Meiners,  687  P.2d  at  295.  



               37            Meiners,  687  P.2d  at  295;  see  generally  2  PACC  1207-16,  1221-40  (Jan.  4  



&  5,   1956).  



               38            See ch. 83, §§ 9.71-.96, SLA   1960 (establishing grounds and procedures  



for  recall);  ch.  118,  §  2,  SLA  1972.   The  local  official  recall  statutes,  originally  codified  

at  AS  29.28,  were  later  renumbered  to  AS  29.26.   See  ch.  74,  §  9,  SLA   1985.  



                                                                                           -10-                                                                                    7542
  


----------------------- Page 11-----------------------

                                                                                                 39  

expiration of the fixed term to which he was elected."                                                 Under this view, statutory       



grounds are construed narrowly in favor of the officeholder, and any violation of the                                                            

                                                                                                  40     "At  the  other  end  of  the  

prescribed   procedures   may   invalidate   the   recall   effort.                                                                             



spectrum" is the view that recall is essentially a political process and "all doubts are  

                                                                                                                                                 

resolved in favor of placing the recall question before the voters."41                                                  Under this view,  

                                                                                                                                             



disagreement with the officeholder's position on policy questions is a sufficient ground  

                                                                                                                                          

for recall.42  

                      

                       Alaska "appears to follow a middle ground between these two positions."43  

                                                                                                                                                        



The statutes effectuating the constitutional right at the state level, AS 15.45.470-.720, set  

                                                                                                                                                  



out the grounds and procedures for recalling the governor, the lieutenant governor, and  

                                                                                                                                                



members  of  the  state  legislature.                           They  adopt  a  for-cause  recall  and  list  the  four  

                                                                                                                                              



acceptable grounds as (1) lack of fitness, (2) incompetence, (3) neglect of duties, and (4)  

                                                                                                                                                 

corruption.44  

                        



            39         Meiners , 687 P.2d at 294 (quoting  State ex rel. Palmer v. Hart,  655 P.2d  



965,  967  (Mont.   1982)).   



            40         Id. (citing Kotar v. Zupan, 658 P.2d 1095 (Mont. 1983)).  

                                                                                                                            



            41         Id.  



            42         Id.   



            43         Id.  



            44         AS   15.45.510.   Nineteen  states  and  the  District  of  Columbia  permit  recall  



of  state  officials;  seven  of  these  states,  including  Alaska,  require  cause  to  initiate  a  recall.   

Recall         of    State        Officials,         NAT 'L        CONF.          ST.     LEGISLATURES                 (July       8,     2019),  

http://www.ncsl.org/legislatures-elections/elections/recall-of-state-officials.aspx.     See  

Minn.  Const.  art.  VIII,  §  6  (limiting  recall  to  "serious  malfeasance  or  nonfeasance  during  

the  term  of  office  in  the  performance  of  the  duties  of  the  office  or  conviction  during  the  

term  of  office  of  a serious  crime");  R.I.  Const. art.  IV,   §   1  (limiting  recall  to instances  

                                                                                                                              (continued...)  



                                                                       -11-                                                                  7542
  


----------------------- Page 12-----------------------

                   The  recall  process  begins  when  recall  proponents  file  an  application  with  



                                                       45  

the  director  of  the  Division  of  Elections.           The  application  must  include  "the  grounds  for  



recall  described  in  particular  in  not  more  than  200  words,"  along  with  the  signatures  of  



enough   voters   to   equal   "10   percent  of   those   who   voted   in   the   preceding   general  

election."46  

                  "The  director  shall  review  the  application  and  shall  either  certify  it  or  notify  



                                                                 47  

the  recall  committee  of  the  grounds  of  refusal."              Grounds  of  refusal  identified  by  statute  



         44        (...continued)  



when   official   has   been   "indicted   or   informed   against   for   a   felony,   convicted   of   a  

misdemeanor, or  against  whom  a finding of probable cause of violation of  the code of  

ethics  has  been  made  by  the   ethics   commission");  Wash.   Const.   art.  I,   §   33   (limiting  

recall  to  comission  of  "some  act or acts of malfeasance  or  misfeasance  while  in  office,  

or  .  .   .  violat[ion  of]  oath  of  office"); G    a.  Code  Ann.   §§  21-4-3(7),  21.4-4(c)  (limiting  

recall   to   "acts   of   malfeasance   or   misconduct   while   in   office";   violations   of   "oath   of  

office";    "failure    to   perform    duties   prescribed   by    law";    or    "willful[]    misuse[],  

conver[sion],  or  misappropriat[ion],  without  authority,  public  property  or  public  funds  

entrusted  to  or  associated  with  the  elective  office  to  which  the  official  has  been  elected  

or   appointed");   Kan.   Stat.   §   25-4302   (limiting  recall   to   "conviction   of   a   felony,  

misconduct  in  office  or  failure  to  perform  duties  prescribed  by  law");  Mont.  Code  Ann.  

2-16-603  (2019)  (limiting  recall  to  "[p]hysical  or  mental  lack  of  fitness,  incompetence,  

violation   of   the   oath of   office,   official   misconduct,   or   conviction   of"   certain   felony  

offenses);   Va.   Code   Ann.   §   24.2-233   (limiting   recall   to   "neglect of   duty,   misuse   of  

office,  or  incompetence  in  the  performance  of  duties  when  that  neglect  of  duty,  misuse  

of   office,   or  incompetence  in  the  performance   of   duties  has   a  material   adverse   effect  

upon  the  conduct  of  the  office,"  or  "[u]pon  conviction  of"  certain crimes).   Virginia's  

process  is  initiated  by  citizen  petitions  but  involves  a  recall  trial  rather  than  an  election.   

Va. Code Ann. § 24.2-235;  Recall of State Officials, NAT 'L  CONF.   ST.  LEGISLATURES.   

At  least  30  states  allow recall elections  in local jurisdictions.  Recall of State  Officials,  

NAT 'L  CONF.  ST.  LEGISLATURES.  



         45        AS   15.45.480.  



         46        AS   15.45.500(2)  and  (3).  



         47        AS   15.45.540.  



                                                          -12-                                                     7542
  


----------------------- Page 13-----------------------

                                                                                                                        48  

include that "the application is not substantially in the required form";                                                   the official was     



                                                                                 49                                                                 50  

very recently elected or is soon to leave office;                                                                                       

                                                                                     the official "is not subject to recall"; 

                                                                       51   If the application is accepted, the director  

 and there are too few qualified signers.                                                                                                

                                                          



prepares enough petitions "to allow full circulation throughout the state" (in the case of  

                                                                                                                                                    

 a statewide election),52  and the recall proponents must gather signatures on the petitions  

                                                                                                                                        

 equal in number to "25 percent of those who voted in the preceding general election."53  

                                                                                                                                    



                        If the proponents gather enough signatures in this second round and the  

                                                                                                                                                  

completed petitions are properly filed, the director must call a special election.54                                                            The  

                                                                                                                                                



ballot asks the yes or no question, "Shall (name of official) be recalled from the office  

                                                                                                                                       

of . . . ?"55      The targeted official may file a "statement of not more than 200 words . . . in  

                                                                                                                                                    

justification of the official's conduct in office,"56  and copies of the statements for and  

                                                                                                                                                 



                                                                                                                                57  

 against recall must appear "in a conspicuous place" at each polling place.                                                         

                                                                                                                      



            48         AS   15.45.550(1).  



            49         AS    15.45.550(2)   (providing   that   certification   must   be   denied   if   the  



 application  is  filed  within  first   120  days  or  last   180  days  of  official's  term  of  office).  



            50         AS   15.45.550(3).  



            51         AS   15.45.550(4).   



            52         AS   15.45.560.  



            53         AS   15.45.610.  



            54         AS   15.45.650.  



            55         AS   15.45.660.  



            56         AS   15.45.680.  



            57         Id.  



                                                                        -13-                                                                  7542
  


----------------------- Page 14-----------------------

IV.        STANDARD OF REVIEW           



                                                                                                        58  

                     "We   review   grants   of   summary   judgment  de   novo."                                             

                                                                                                             We  apply  our  



                                                                                                              

independent  judgment  to  questions  of  law,  including  questions  of  constitutional  



                      59  

                                                                                                                  

interpretation.          When interpreting Alaska's recall statutes, we exercise our independent  



                                                                                                                    

judgment and adopt "the rule of law which is most persuasive in light of precedent,  



                              60  

                                  

policy and reason." 



V.        DISCUSSION  



                                                                                     

          A.         Our Case Law Interpreting The Recall Statutes  



                                                                                                                               

                    We have interpreted Alaska's recall statutes twice before, though not the  



                                                                                                                      

specific statutes at issue here.  Because this case involves a state official, it is governed  



                                                                                                                    

by AS 15.45.470-.720, but our two reported opinions were decided under AS 29.26.240- 



                                                           61  

                                                                                                                               

                                                               The separate statutory schemes arise from the  

360, governing recall of local officials. 



                                                                                                                       

same constitutional background, however, and there are significant statutory parallels  



                                                                                                                               

that help shape our analysis here.   The three prescribed grounds for recall under the  



                                                                                                                                

local-official  recall  statutes  are  "misconduct  in  office,  incompetence,  or  failure  to  



                                          62 

                                                                                          

perform prescribed duties."                   And the local-official recall statutes have a particularity  



          58         Christensen  v.  Alaska  Sales  & Serv.,  Inc.,  335  P.3d  514,  516  (Alaska  2014).  



          59         Wielechowski  v.  State,  403  P.3d   1141,   1146  (Alaska  2017).  



          60        von  Stauffenberg  v.  Comm.  for  Honest  &  Ethical  Sch.  Bd.,  903  P.2d  1055,  



 1059  n.9  (Alaska   1995)  (quoting  Zsupnik  v.  State,  789  P.2d  357,  359  (Alaska   1990)).  



          61        See  Meiners  v.  Bering  Strait  Sch.  Dist.,  687  P.2d  287,  291  (Alaska  1984);  



von  Stauffenberg,  903  P.2d  at   1057-58.   We  note  that  Meiners  was  originally  decided  

under  AS  29.28,  which  was  later  renumbered  in   1985.   See  supra  note  38.  



          62        AS 29.26.250.  

                           



                                                               -14-                                                        7542
  


----------------------- Page 15-----------------------

                                                                                                                                               63  

requirement   similar   to   that   of   AS   15.45.500(2),   though   it   has   evolved   slightly.                                               



                                                                                                                                     

Originally the statute required that  a recall petition  contain "a statement of the grounds  



                                                                                                                                             

of the recall stated with particularity as to specific instances"; the current version in the  



                                                                                                                                              

local-official recall statutes requires "a statement in 200 words or less of the grounds for  



                                                     64  

                               

recall stated with particularity." 



                       In 1984, in Meiners v. Bering Strait School District, we reversed a superior  

                                                                                                                                    



court's order enjoining a recall election directed at several members of a regional school  

                                                                                                                                        

board.65       The injunction was based on a finding that there were not enough signers, but  

                                                                                                                                             



the superior court also "intimated" that certain allegations in the recall petition, "while  

                                                                                                                                       

sufficiently specific, did not come within the statutory grounds for recall."66  

                                                                                                                  



                      We described the constitutional background of the recall process, then  

                                                                                                                                           



observed that holding recall petitions to high standards of technical compliance could  

                                                                                                                                         



hinder  the  exercise  of  this  constitutional  right  by  citizens  of  limited  means  and  

                                                                                                                                           

                 67   We emphasized "the need to avoid wrapping the recall process in such a  

resources.                                                                                                                                      



tight legal straitjacket that a legally sufficient recall petition could be prepared only by  

                                                                                                                                              



           63          Compare  former AS 29.28.150(a)(3) (1984) ("stated with particularity"),                           



with  AS 15.45.500(2) ("described in particular").             



           64         AS 29.26.260(a)(3).  

                              



           65          687 P.2d at 290.  Recall of regional school board members is provided for  

                                                                                                                                              

in AS 14.08.081, which incorporates the statutes governing recall of city and borough  

                                                                                       

officials, former AS 29.28.130-.250 (1984).  Id. at 290-91.  



           66         Id. at 293.  

                                 



           67         Id. at 295-96 (stating that if we interpret "statutes in so strict a manner" that  

                                                                                                                                            

a recall proponent must seek the advice of a lawyer in order to have a compliant petition,  

                                                                                                                                     

the effect "would be virtually to negate the recall process" for voters in rural Alaska).  

                                                                                                                                   



                                                                     -15-                                                                7542
  


----------------------- Page 16-----------------------

                                                                                                           68  

an attorney who is a specialist in election law matters."                                                       We held that the recall statutes             



should therefore be "liberally construed so that 'the people [are] permitted to vote and                                         



express their will,' " and that "[t]he purposes of recall are . . . not well served if artificial                                                          



technical hurdles are unnecessarily created by the judiciary                                                                as  parts of the process        

prescribed by statute."                      69  



                           The first paragraph of the recall application at issue in Meiners alleged that  

                                                                                                                                                                     



the school board members failed "to performthe[ir]prescribed duties" by failing "to hold  

                                                                                                                                                                   

the superintendent responsible" for misappropriation of money.70                                                                      The school district  

                                                                                                                                                              



argued   that   a  regional   school   board   is   legally   required   only   to   "employ"   a  

                                                                                                                                                                        

superintendent;71                   "[t]o  'control'  the  superintendent"  was  "merely  a  discretionary  

                                                                                                                                                



function" and the board's failure to do it therefore could not be a failure to perform  

                                                                                                                                                           

                                   72    We rejected that argument, holding that "[i]mplicit in the board's  

prescribed duties.                                                                                                                                           

                       



duty  to  'employ'  a  superintendent"  are  the  duties  to  evaluate  the  superintendent's  

                                                                                                                                          



                                                                                            73  

performance and replace him when necessary.                                                       

                                                                        



                           The recall application's second paragraph alleged that the school board  

                                                                                                                                                                



members  failed  to  perform  prescribed  duties  by  failing  "to  provide  full  and  open  

                                                                                                                                                                 



             68           Id.  at  301.
  



             69           Id.  at  296  (first  alteration  in  original)  (citation  omitted)  (quoting  Boucher
  



v.  Engstrom,  528  P.2d  456,  462  (Alaska   1974)).   



             70           Id.  at  291.  



             71           Id.  at  299-300.  



             72           Id.  at  300.  



             73           Id.  



                                                                                  -16-                                                                           7542
  


----------------------- Page 17-----------------------

                                                                                                                           74  

communication between themselves and the voters of the district."                                                               The application   



listed particular instances of conduct which it alleged violated the state public records                                                       

                                               75   We concluded that because public records laws were laws  

and public meetings laws.                                                                                                                             



of general application, the allegation that the board failed to follow them sufficiently  

                                                                                                                                         

alleged the failure to perform prescribed duties.76                                           We rejected the argument that the  

                                                                                                                                                        



petition misstated the law, concluding that the "proper forum" for that argument was the  

                                                                                                                                                         

targeted officials' rebuttal statement.77  

                                                                         



                        We emphasized in Meiners "that it is [the role] of the voters . . . to assess  

                                                                                                                                           



the truth or falsity of the allegations in the petition," and that in holding that the petition  

                                                                                                                                                



sufficiently alleged failure to perform prescribed duties, we were not deciding that the  

                                                                                                                                                         

allegations were true.78                    We explained:  

                                                                         



                        We are in a position similar to a court ruling on a motion to  

                                               

                        dismiss a complaint for failure to state a claim.   For these  

                                                                                                                            

                        purposes,  we  must  take  the  allegations  as  true,  without  

                                                                                                                       

                        thereby  prejudging  the  trier  of  fact's  role  to  determine  

                                                                                                                  

                        whether or not they are true.[79]  

                                                                     



Applying  this  standard,  we  held  that  paragraph  two  also  satisfied  the  particularity  

                                                                                                                                       



            74          Id.  at  301.  



            75          Id.  



            76          Id.  



            77          Id.  ("If  the  petition  alleges violation  of  totally  non-existent  laws,  then  it  



would  not   allege   failure   to  perform  prescribed   duties.    But that   is  not  the   case  here.   

Where the petition merely characterizes the law in  a way different than the official (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.").  



            78          Id. at 300 n.18.  

                                            



            79          Id.  



                                                                           -17-                                                                     7542
  


----------------------- Page 18-----------------------

                        80  

requirement.                We explained that "[t]he purpose of the requirement of particularity is to                                                       



give the officeholder a fair opportunity to defend his conduct in a rebuttal limited to 200                                                              



               81  

                                                                                                                                              

words."            The recall petition was not impermissibly vague, because it alleged violations  



                                                                                                                    82  

                                                                                                                        

                                                                                                      

of certain laws and the meaning of those laws was not unclear. 



                                                                                                                                                   

                         Eleven years later we decided von Stauffenberg v. Committee for Honest  



                                               83  

                                                                                                                                                            

& Ethical School Board.                              A borough school board went into executive session to  



                                                                                                                                                      

discuss the retention of an embattled school principal; back in public session, the board  



                                                           84  

                                                                                                                                                      

announced that he was retained.                                 A group of parents and other voters initiated a recall  



                                                                  85  

                                                                                                                                                            

effort against members of the board.                                   Their application stated the grounds for recall as  



                                                                                                                                            

misconduct in office and failure to perform prescribed duties based on the "improper,  



                                                                                                          86  

                                                                                                                                                  

closed door executive session, in violation of Alaska law."                                                   The borough clerk rejected  



                                                                                                                                         

the petition, determining that it "was 'insufficient for failure to allege, with particularity,  



                                                                                                       87  

                                                                                                                                                

facts that constitute any of the three grounds for recall.' "                                               The superior court reversed,  



                                                                                                                                                             88  

                                                                                                                                                                  

                                                                                                                                        

but we agreed with the borough clerk's determination that the petition was insufficient. 



            80          Id.  at  302.
   



            81          Id.
  



            82          Id.
   



            83           903  P.2d   1055  (Alaska   1995).
  



            84          Id.  at   1056-57.
  



            85          Id.  at   1057.  



            86          Id.  



            87          Id.  (quoting  borough  clerk's  determination).   



            88          Id.  at   1057,   1060-61.  



                                                                            -18-                                                                      7542
  


----------------------- Page 19-----------------------

                           We repeated our standard of review from                                           Meiners :   In reviewing the legal                    



sufficiency of allegations in recall petitions, we are "in a position similar to a court ruling                                                                  



on a motion to dismiss a complaint for failure to state a claim" and must therefore take                                                                            

                                            89   We must then "determine whether such facts constitute a prima  

the allegations as true.                                                                                                                                        

facie showing of" a prescribed ground for recall.90  

                                                                                     



                           We concluded in von Stauffenberg that they did not, because the school  

                                                                                                                                                               

board  members  did  not  violate  Alaska  law.91                                                  Although  government  meetings  are  

                                                                                                                                                                      



required  to  be  open,  an  exception  applies  when  the  subject  of  discussion  tends  to  

                                                                                                                                                                        



prejudice the reputation and character of any person, as was the case with the principal's  

                                                                                                                                                        

retention.92            We explained, "[W]here recall is required to be for cause, elected officials  

                                                                                                                                                            

cannot be recalled for legally exercising the discretion granted to them by law."93                                                                                 The  

                                                                                                                                                                     



school board members were properly exercising the discretion granted to them by law  

                            

when they went into an executive session to consider whether to retain the principal.94  

                                                                                                                                                                              



We held that the recall application lacked sufficient particularity because"the allegations  

                                                                                                                                                        

fail[ed] to state why entering into the executive session [violated] Alaska law."95  

                                                                                                                                                   



             89           Id.  at  1059  (citing  Meiners  v.  Bering  Strait  Sch.  Dist.,  687  P.2d  287,  300-01  



n.18  (Alaska   1984)).  



             90           Id.  at   1059-60.  



             91           Id.  at   1060.  



             92           Id.   



             93           Id.  



             94           Id.  



             95           Id.  



                                                                                  -19-                                                                            7542
  


----------------------- Page 20-----------------------

                B.             The Legal Sufficiency Requirement                       



                               It is a relatively straightforward ministerial task to determine whether a                                                                                             



recall petition satisfies certain statutory requirements, such as whether it has "the name                                                                                                  



and office of the person to be recalled," the requisite number of signatures, and the                                                                                                            



                                                                          96  

identity of the recall committee.                                                                                                                                                                    

                                                                                More difficult is determining whether the petition is  



                                                                                                                                                                                                 

legally  sufficient  -  that  is,  whether  it  states  one  of  the  four  listed  grounds  for  



             97                                                                                                                                                        98 

                                                                                                                                                                                       

recall            - and, if so, whether the grounds are "described in particular."                                                                                           We address  



                                                                                                               

legal sufficiency first and then the particularity requirement.  



                                                                                                                                                                                                

                               "In reviewing the legal sufficiency of allegations in recall petitions, this  



                                                                                                                                                                                                  

court is 'in a position similar to a court ruling on a motion to dismiss a complaint for  



                                                                                                                                                                                                     99  

                                                                                                                                                                                                           

                                                                                                                                                                                        

failure to state a claim . . . [and] we must [therefore] take the allegations as true." 



Taken as true, the allegations must make a prima facie showing of at least one of the  

                                                                                                                                                                                                  



statutorily prescribed grounds for recall: lack of fitness, incompetence, neglect of duties,  

                                                                                                                                                                                          

or corruption.100  If the ground rests on an alleged violation of law, it must allege conduct  

                                                                                                                                                                                       



that is in fact unlawful.  The ground is not legally sufficient if it "alleges violation of  

                                                                                                                                                                                                    

totally  non-existent  laws"101                                        or  if  it  is  based  on  the  official's  lawful  exercise  of  

                                                                                                                                                                                                   



                96             AS   15.45.500(1),  (3),  (4).   



                97             AS   15.45.510.  



                98             AS   15.45.500(2).  



                99             von   Stauffenberg,  903   P.2d   at   1059   (alterations   in   original)   (quoting  



Meiners  v.  Bering  Strait  Sch.  Dist.,  687  P.2d  287,  300-01  n.18  (Alaska   1984)).   



                100            AS   15.45.510.  



                101            See  Meiners,  687  P.2d  at  301.  



                                                                                                -20-                                                                                         7542
  


----------------------- Page 21-----------------------

                        102  

discretion.                   However, "a petition which merely characterizes the law in a way different                                                                      



than the targeted official would prefer is legally sufficient"; "the 'rebuttal statement is                                                                                                  



                                                                                                                                                                   103  

the proper forum in which the official may defend against the charges.' "                                                                                                 



               C.             The Particularity Requirement  

                                                                         



                              The particularity requirement is found in AS 15.45.500(2), which requires  

                                                                                                                                                                                



that a recall application include "the grounds for recall described in particular in not  

                                                                                                                                                                                          



more than 200 words." (Emphasis added.) We concluded in Meiners that "[t]he purpose  

                                                                                                                                                                                



of the requirement of particularity is to give the officeholder a fair opportunity to defend  

                                                                                                                                                                                  

his conduct in a rebuttal limited to 200 words."104                                                                 The particularity requirement thus  

                                                                                                                                                                                        



serves a function similar to the complaint in a civil case.  The standard we apply in that  

                                                                                                                                                                                         

                                                                                                                        105 requiring only "(1) a short and  

context is "notice pleading," a "fairly lenient" standard                                                                                                                                 

                                                                                                      



plain statement of the claim showing that the pleader is entitled to relief, and (2) a  

                                                                                                                                                                                              

demand for judgment for the relief the pleader seeks."106  "We have not construed this  



rule to require details of evidence that a claimant will offer to establish a claim; to the  

                                                                                                                                                                                          



contrary, we have emphasized that the rule is satisfied by a brief statement that 'give[s]  

                                                                                                                                                                                

the defendant fair notice of the claim and the grounds upon which it rests.' "107  

                                                                                                                                                                                  



               102            von Stauffenberg                      , 903 P.2d at 1060.
          



               103  

                                                                                                                                       

                              Id. at 1060 n.13 (quoting Meiners, 687 P.2d at 301).
  



               104  

                                                                                                                                         

                              Id. at 1060 (quoting Meiners, 687 P.2d at 302).
  



               105            Bigley v. Alaska Psychiatric Inst.                                        , 208 P.3d 168, 181 (Alaska 2009).
                             



               106            Id.  (quoting Alaska R. Civ. P. 8(a)).
                             



               107  

                                                                                                                                                                                         

                              ValdezFisheriesDev. Ass'n v.Alyeska Pipeline Serv. Co., 45 P.3d 657, 673
  

(Alaska 2002) (alteration in original) (quoting                                                         Sykes v. Melba Creek Mining, Inc.                                             , 952   

                                                                  

P.2d 1164, 1168 n.4 (Alaska 1998)).  



                                                                                            -21-                                                                                      7542
  


----------------------- Page 22-----------------------

                      When   applying   the   notice   pleading   standard   to   civil   complaints,   we  



construe them liberally to ensure access to the courts for everyone regardless of whether                                          

                                          108  We have expressed similar concerns about ensuring citizen  

they have a lawyer's help.                                                                                                            



access to the constitutional recall process, emphasizing in Meiners the importance of  

                                                                                                                                             



avoiding unnecessary "artificial technical hurdles" that can be overcome only with "the  

                                                                                                                                          



detailed advice of a lawyer"; we therefore "liberally constru[e] [the recall statutes] so that  

                                                                                                                                           

'the people [are] permitted to vote and express their will.' "109                                         This is in line with the  

                                                                                                                                           



legislature's own direction, in AS 15.45.550(1), that the application be "substantially in  

                                                                                                                                             



the  required  form"  (emphasis  added),  and  with  the  legislature's  200-word  limit  in  

                                                                                                                                             



AS 15.45.500(2), prioritizing concision over a thorough description of the petition's  

                                                                                                                                

factual and legal basis.110  

                                             



           108        See  Sykes,  952  P.2d  at   1168  n.4.  



           109        Meiners,  687  P.2d  at  296  (third  alteration  in  original)  (quoting  Boucher  v.  



Engstrom,  528  P.2d  456,  462  (Alaska  1974)).   When  Meiners  was  decided  there  was  no  

word   limit   for  the   statement   of   grounds,   only   for  the  rebuttal   statement.   See   former  

AS  29.29.150(a)(3)   (1984)   (requiring  "a   statement  of  the  grounds  of  the  recall   stated  

with  particularity  as  to  specific  instances"  but  containing  no  word  limit).   We  note  that  

the  statement  of  grounds  at  issue  in  Meiners  contained  three  substantive  paragraphs,  was  

over  450  words  long,  and  was  still  challenged  on  particularity  grounds.   Meiners,  687  

P.2d  at  291-92,  302.  



           110        The word limit itself must be read in light of the substantial compliance test  

                                                                                                                                           

of AS  15.45.550(1).  Cf. Silver Bow  Constr. v. State, Dep't  of Admin.,  Div.  of  Gen.  

                                                                                                                                        

Servs.,  330  P.3d  922,  923  (Alaska  2014)  (discussing  agency  discretion  to  accept  

                                                                                                                                     

overlength bid  in  competitive bidding  process).   A  word limit  may be  a  significant  

                                                                                                                              

burden on the exercise of the constitutional recall right, especially if the petition makes  

                                                                                                                                      

multiple allegations or arises from a complicated legal or factual background. The 200- 

                                                                                                                                         

word  limit  is  not  challenged  on  this  appeal,  but  we  note  that  statutory  provisions  

                                                                                                                              

governing the mechanics of elections, if challenged on constitutional grounds, "should  

                                                                                                                                    

be  analyzed  to  determine  whether  they  impermissibly  burden  the  right  to  vote."  

                                                                                                                                                  

                                                                                                                         (continued...)  



                                                                     -22-                                                              7542
  


----------------------- Page 23-----------------------

                    The  State  argues  that  the  notice  pleading  standard  is  inappropriate  because  



it  does  not ensure  that  the  Division  and  the  courts  are  able  to  review  the  statement  for  



statutory  compliance  and  because  it  does  not  ensure  that  voters  will  be  able to  understand  



the  grounds  for recall.   The   State  argues  that  the  statement  of  grounds  must  be  "free- 



standing  and  comprehensive."   According  to  the  State,  this  does  not  mean  the  statement  



must  include  "every  relevant  fact,"  but  it  "must  be  clear  enough  to  identify  specifically  



what  the   official  has  done  or  not  done   so  that  the  Division   and   courts can determine  



whether   it   meets   the   statutory   criteria,   the   official   can   meaningfully respond   in   200  



words,  and  voters  can  understand  the  basis  of  the  recall."    



                    We certainly agree that the statement  of grounds  must be "clear enough"  



to  serve  its  statutory  purpose.   The  recall  application  should  frame  the  issue  such  that  the  



Division  and  the  courts  can  determine  its  legal  sufficiency,  the  targeted  official  has  a  fair  



opportunity  to  respond,  and  the  voters  can  understand  the  basis  for  the  recall  effort.   But  

in  deciding  whether  these  goals  have  been  met,  we  must  consider  the  200-word  limit,111  



                                 112  and the need to  construe  statutory requirements  in favor of  

the  substantiality test,                                                                                                   

                           

preserving the exercise of constitutional rights.113  

                                                             



          110       (...continued)  



                                                                                                                  

Sonneman v. State, 969 P.2d 632, 637 (Alaska 1998) (citing McIntyre v. Ohio Elections  

                                                                                                                           

Comm'n, 514 U.S. 334, 345 (1995)).   "Severe" restrictions on the right to vote are  

                                                                                                                 

subject to strict scrutiny and "must be 'narrowly drawn to advance a state interest of  

                                                                                                                       

compelling importance.' "  Id.  at 638 (quoting O'Callaghan v. State, 914 P.2d 1250,  

                                             

1254 (Alaska 1996)).  On the other hand, "reasonable, nondiscriminatory restrictions"  

                                                                                                     

may be justified by the state's important regulatory interests.  Id. at 638-39.  



          111       AS 15.45.500(1).  

                          



          112       AS 15.45.550(1).  

                          



          113       See Meiners, 687 P.2d at 296.  

                                                          



                                                             -23-                                                       7542
  


----------------------- Page 24-----------------------

                              The   State   also   argues   that   to  satisfy   the   particularity   requirement   the  



"statement of grounds must explain how the alleged conduct meets one or more grounds                                                                                             



 for recall."              Recall Dunleavy's application alleged "Neglect of Duties, Incompetence,                                                                



and/or Lack of Fitness, for the following actions," listing the four distinct allegations of                                                                                                   



objectionable conduct. Although the "and/or" construction "has been criticized in many                                                                                                 

                                    114  it is commonly understood to mean "the one or the other or both."115  

legal opinions,"                                                                                                                                                                                     



The application thus leaves it to the individual voter to decide whether neglect of duties,  

                                                                                                                                                                                     



incompetence, lack of fitness, or some combination of the three is demonstrated by each  

                                                                                                                                                                                         



of the four allegations.   And voters may reach different conclusions based on their  

                                                                                                                                                                                        



individual assessments of the charges:  for example, one voter may decide that a failure  

                                                                                                                                                                                    



to  appoint  a  judge  as  required  by  law  demonstrates  incompetence,  another  that  it  

                                                                                                                                                                                               



demonstrates two or three of the alleged grounds, and another that it demonstrates none  

                                                                                                                                                                                        



of them.  Alaska Statutes 15.45.500-.510 do not require that the petitioners map out all  

                                                                                                                                                                                              



possible routes for voters' decision-making, and we will not read such a requirement into  

                                                                                                                                                                                           



the statutes, especially given the substantiality test and the constraints of the 200-word  

                                                                                                                                                                             



limit. An allegation that lacks any logical connection to one of the statutory grounds for  

                                                                                                                                                                                             



recall will be found legally insufficient.  If a logical connection can be made, we leave  

                                                                                                                                                                                       



it to the voters to decide whether to make it.  

                                                                                                      



               114            Batchelor v. Madison Park Corp.                                           , 172 P.2d 268, 277-78 (Wash. 1946);                                               see  



And/or,  BRIAN  A. G                         ARNER, D              ICTIONARY OF                    LEGAL  USAGE  (3d ed. 2011) ("A legal and                                               

business expression dating fromthe mid-19th century,                                                                     *and/or  has been vilified for most                             

of its life - and rightly so.").                                     



               115            Local Div. 589, Amalgamated Transit Union v. Massachusetts, 666 F.2d  

                                                                                                                                                                               

 618, 627 (1st Cir. 1981); see Batchelor, 172 P.2d at 278 (opining that despite potential  

                                                                                                                                                                               

ambiguity of deed's use of "and/or," "[i]t seems perfectly clear that the lots were deeded  

                                                                                                                                                                                   

 for municipal park and playground purposes, or for either of those purposes"); GARNER,  

                                                                                                                                                                               

supra note 114 ("*And/or , though undeniably clumsy, does have a specific meaning  

                                                                                                                                                                               

 (x *and / or y = x or y or both.").  

                                                                                



                                                                                             -24-                                                                                       7542
  


----------------------- Page 25-----------------------

          D.         Defining The Grounds For Recall               



                     The   legislature   established   by   statute   the   four   potential   grounds   for  



recall   -   "(1)   lack   of   fitness,   (2)   incompetence,   (3)   neglect   of   duties,  or  (4)  



                  116  

                                                                                                                          

corruption"            - but did not define them further.   We observed in Meiners  that the  



                                                                                                                             

parties' dispute was due largely to ambiguities in the law and that "more carefully drawn  



                                                                                                                          

statutes"could decrease theneedfor judicialinvolvement, explaining that "[t]hepolitical  



                                                                                                                        

nature  of  the  recall  makes  the  legislative  process,  rather  than  judicial  statutory  



                                                                                                                                    

interpretation, the preferable means of striking the balances necessary to give effect to  



                                                                                                                         117  

                                                                                                                                

the Constitutional command that elected officers shall be subject to recall."                                                   The  



                                                                                                            118  

                                                                                                                              

legislature  did  not  respond  with  any  changes  to  the  recall  statutes,                                   but  we  must  



                                                                                                                                  

nonetheless attempt to discern its intent from the words it used, "with due regard for the  



                                                                                             119  

                                                                                                                                    

                                                                                                    "In  the  absence  of  a  

meaning  that  the  statutory  language  conveys  to  others." 



                                                                                                                      

[statutory] definition, we construe statutory terms according to their common meaning[;]  



                                                                                                     120  

                                                                                                                                  

[d]ictionaries 'provide a useful starting point' for this exercise."                                      And although the  



           116       AS 15.45.510.   The fourth ground, corruption, is not implicated in this case.   



           117       Meiners,  687  P.2d  at  296.   



           118       We   do   not   disagree   with   the   dissent's   exhortation  that  the   legislature  



reconsider  the  statutory  recall  framework  and  allowable  statutory  grounds  for  recall.  



           119       Cora  G.  v.  State,  Dep't  of  Health  & Soc.  Servs.,  Office  of  Children's  Servs.,  



461  P.3d  1265,  1277  (Alaska  2020)  (quoting  Heller  v.  State,  Dep't  of  Revenue,  314  P.3d  

69,  74  (Alaska  2013)).  



           120      Alaska Pub. Def. Agency  v. Superior Court, 450 P.3d 246, 253 (Alaska  

                                                                                                                          

2019) (alterations in original) (quoting Alaska Ass'n of Naturopathic Physicians v. State,  

                                                                                                                              

Dep't  of  Commerce,  414  P.3d  630,  635  (Alaska  2018));  see  also  AS  01.10.040(a)  

                                                                                                                  

("Words and phrases shall be construed according to the rules of grammar and according  

                                                                                                                        

to their common and approved usage."); Wells v. State, 102 P.3d 972, 975 (Alaska App.  

                                                                                                                               

                                                                                                                 (continued...)  



                                                                -25-                                                          7542
  


----------------------- Page 26-----------------------

definitions of the relevant statutory terms have not changed significantly over the past   



70 years, we take into account the sources available to the constitution's framers and to                                                                                      



                                                                                                                                                                            121  

the legislators who later enacted the statutes intended to further the framers' intent.                                                                                             



                            1.           Lack of fitness  

                                                            



                            "Fitness" is commonly defined as the condition of being "suitable" or  

                                                                                                                                                                              

"appropriate."122   The superior court defined lack of fitness as "unsuitability for office  

                                                                                                                                  



demonstrated by specific facts related to the recall target's conduct in office." The court  

                                                                                                                                                                        



drew this definition from a 2004 recall case, Valley Residents for a Citizen Legislature  

                                                                                                                                                           



              120           (...continued)  



                                                                                                                                                                     

2004) ("When the legislature uses a word or phrase but does not define it, a court should  

                                                                                                                                                               

normally assume that the legislature intended the word or phrase to have its common,  

                    

ordinary meaning.").  



              121          See, e.g., State v. Winkler, 473 P.3d 796, 800 (Idaho 2020) ("[T]o discern  

                                                                                                                                                                    

the drafters' intent, we look to other sources close in time to the adoption of Idaho's  

                                                                                                                                                                   

constitution."); In re Burnett Estate, 834 N.W.2d 93, 98 (Mich. App. 2013) ("Words  

                                                                                                                                                                

should  be  given  their  common  and  most  obvious  meaning,  and  consideration  of  

                                                                                                                                                                             

dictionary  definitions  used  at  the  time  of  passage  for  undefined  terms  can  be  

                                                                                                                                                                            

appropriate."); McKenna v. Williams, 874 A.2d 217, 243 n.19 (R.I. 2005) (looking to  

                                                                                                                                                           

"dictionary relevant to the time of the adoption of" state constitutional provision to  

                                                                                                                                                                              

determine contemporary understanding of word 'election' ").  

                                                                                                                                



              122          Fit, BLACK 'S  LAW  DICTIONARY  (4th ed. 1951) ("Suitable or appropriate.                                                                                

                                     

Conformable   to   a   duty.     Adapted  to,   designed,   prepared."   (citation   omitted));   Fit,  

BALLENTINE 'S  LAW  DICTIONARY  (3d ed. 1969) ("Adjective: Proper; suitable; befitting;                                                                         

adapted   to.");   Fitness,   id.   ("The   condition   of   being   fit.");   Fit,   THE   NEW   CENTURY  

DICTIONARY  (1946) ("Well adapted or suited by nature or character, as for a purpose,                                                                           

use, or occasion[;] . . . also, suitable by reason of qualifications, abilities, etc., as for a                                                                                 

position, office, or function; qualified or competence.");                                                         Fit, T      HE  AMERICAN  HERITAGE  

DICTIONARY (2d ed. 1985) ("To be appropriate or suitable to.");                                                                       Fit, WEBSTER 'S  NEW  

WORLD  DICTIONARY   (2d ed. 1980) ("1. [T]o be suitable or adapted to; be in accord                                                                                 

                  

with.").  



                                                                                     -26-                                                                               7542
  


----------------------- Page 27-----------------------

                                                                                                                                                  123 

 v. State, Division of Elections,                                                                                                                             in which the parties agreed on the appropriateness of   



the definition used by the superior court.                                                                                                                                                            



                                                                We agree that "unsuitability for office" is the proper definition, though we                                                                                                                                                                                                                                                                     



 do not believe that the "specific facts" demonstrating unsuitability must be "related to                                                                                                                                                                                                                                                                                                                            



the   recall  target's   conduct   in   office."     For   example,   personal   misconduct   such   as  



 domestic violence or tax fraud may be unrelated to the official's "conduct in office" and                                                                                                                                                                                                                                                                                                                    



yet persuade a majority of voters that the official should be recalled. It is up to the voters                                                                                                                                                                                                                                                                                                    



to decide whether the official's conduct demonstrates an unfitness of the sort that is                                                                                                                                                                                                                                                                                                                               



 incompatible with the office he or she holds.                                                                                                                                          



                                                                 The   State   argues   that   "unsuitability   for   office"   "is   just   as   vague   and  



 amorphous as the phrase it purportedly defines," thus allowing "the kind of purely                                                                                                                                                                                                                                                                                                           



political, no-cause-required recall that the constitutional delegates expressly rejected."                                                                                                                                                                                                                                                                                                                                        



 The State argues, therefore, that "fitness" should be limited to officials' physical and                                                                                                                                                                                                                                                                                                                   



mental capacity to perform their official duties.  But such a limited definition does not                                                                                                                                                                                                                                                                                             



 comport    with    the    common    meanings    of    "fit"    and    "fitness,"    which    encompass  

                                                                                                                                                                                                     124  And defining fitness in a way that excludes  

 appropriateness and suitability generally.                                                                                                                                                                                                                                                                                                                                          



moral fitness is inconsistent with the purposes of recall; the people's interest in removing  

                                                                                                                                                                                                                                                                                                                                                                                 



 a public official from office may be greatest when the official shows deficiencies of  

                                                                                                                                                                                                                                                                                                                                                                                                                    



 character.  



                                 123                            No. 3AN-04-06827 CI, Order Regarding Pending Motions (Alaska Super.,                                                                                                                                                                                                                                                          



Aug. 24, 2004) (finding that petition for recall of state senator, as amended by Division,                                                                                                                                                                                                                                                                                         

was legally and factually sufficient);                                                                                                                                         see also Citizens for Ethical Gov't v. State, Div. of                                                                                                                                                                                 

Elections, No. 3AN-05-12133 CI, Transcript of Proceedings (Alaska Super., Jan. 4,                                                                                                                                                                                                                                                                                                                                   

 2006) (adopting definition of "lack of fitness" used in                                                                                                                                                                                                         Valley Residents                                                                  and finding that                                          

recall statement of grounds was factually and legally insufficient),                                                                                                                                                                                                                                                         appeal dismissed as                                                                    

moot, Supreme Court No. S-12208 (Alaska June 20, 2006).                                                                                                                                                                                                                                           



                                 124                            See supra note 122.  

                                                                                                                                         



                                                                                                                                                                                                       -27-                                                                                                                                                                                             7542
  


----------------------- Page 28-----------------------

                          We   conclude,  in  accordance   with  the   words'  common and ordinary  



meaning, that "lack of fitness" is appropriately defined as "unsuitability for office."                                                              



                          2.           Incompetence  



                          Variousdictionaries define"incompetence"(or "incompetency") in                                                                   similar  



                                                                                                                                                                    125  

terms:   "Lack of ability, legal qualification, or fitness to discharge the required duty."                                                                               



                                                                                                                                                                

One law dictionary defines incompetency of a public officer more precisely as "the  



                                                                                                                                                                   

absence of a physical, moral, or intellectual quality, incapacitating one to perform the  



                                                                                                                                                                   

duties of his office, characterized by gross neglect of duty or gross carelessness in the  



                                                                                                                                         126  

                                                                                                                                                 

performance of duty, lack of judgment, and want of sound discretion." 



                                                                                                                                                        

                          Apparent from these definitions is the difficulty of defining the statutory  



                                                                                                                                                               

terms without some overlap among them, such as when "incompetency" can mean "lack  



                                                                                                                                                                   

of fitness" or "neglect of duty."  The State points to this difficulty as a reason why the  



                                                                                                                                                             

grounds for recall should be narrowly defined.  But although "[w]e assume that words  

                                                                                        127  we are also required to construe them  

                                                                                                                                                               

added to a statute are not mere surplusage," 



             125          Incompetence, B                  LACK 'S  LAW  DICTIONARY  (4th ed. 1951);                                        Incompetency,  



BALLENTINE 'S  LAW  DICTIONARY  (3d ed. 1969) ("Inefficiency; a lack of some requisite                                                                  

ability.     Inadequacy   or   insufficiency,   either   physical   or   mental   .   .   .   .     Want   of  

qualifications or eligibility."                          (citations omitted));                   Competence,  competency, T                             HE  NEW  

CENTURY  DICTIONARY   (1946)   ("The   quality   of   being   competent;   adequacy;   due  

                     

qualification   or   capacity.");   Competent,   id.   ("Fitting,   suitable,   or   sufficient   for   the  

purpose;   adequate;   properly   qualified;   having   legal   capacity   or   qualification.");  

Incompetent,  id.  ("Not competent; lacking qualification or ability; incapable; not legally                                                                

qualified.");  Incompetent, W                          EBSTER 'S  NEW  WORLD  DICTIONARY  (2d ed. 1980) (adj.: "1.                                                 

without   adequate   ability,   knowledge,   fitness,   etc.;   failing   to   meet   requirements;  

incapable; unskillful").   



             126          Incompetency, BALLENTINE 'S  LAW  DICTIONARY  (3d ed. 1969).                                                   

                                                        



             127          Kodiak Island Borough v. Roe, 63 P.3d 1009, 1014 n.16 (Alaska 2003).  

                                                                                                                                                          



                                                                                -28-                                                                           7542
  


----------------------- Page 29-----------------------

                                                                                  128  

"according to their common and approved usage,"                                       recognizing that common usage              



sometimes involves redundancy and imprecision. Andthe                                       legislature mayhaveintended      

                                                                             129  "As a result, 'there are instances in  

some overlap in order to ensure broad coverage.                                                                                        



which a court may validly "prefer ordinary meaning to an unusual meaning that will  

                                                                                                                                    



avoid surplusage." '   Certainly, a court should not give a word an entirely fanciful  

                                                                                                                              

meaning to avoid a minor redundancy."130  

                                           



                     The superior court defined "incompetence" as "lack of [the] ability to  

                                                                                                                                       



perform the official's required duties," relying on the 1993 superior court decision in  

                                                                                                                                       

Coghill v. Rollins.131  The State does not take issue with the definition directly, but it does  

                                                                                                                                    



take issue with the superior court's conclusion that the definition may cover an official's  

                                                                                                                             



single mistake.  The State argues that "people make mistakes all the time" but "[t]hat  

                                                                                                                                



does not make themincompetent under any meaningful understanding of the word." The  

                                                                                                                                     



State proposes that for recall purposes incompetence must be alleged in one of two ways:  

                                                                                                                                            



           128       AS  01.10.040.  



           129       See  Nat'l  Ass'n   of   Clean   Water  Agencies   v.  EPA,   734  F.3d 1115,   1126  



(D.C.   Cir.   2013)   ("In   some   cases,   redundancy   may   reflect   the   broad   purpose   of   a  

congressional   statute.");  Pawlowski  v.  Am.  Family  Mut.  Ins.   Co.,  777  N.W.2d   67,  72  

(Wis.   2009)   ("The   use   of   different  words  joined   by   the   disjunctive   connector   'or'  

normally  broadens the   coverage   of   the   statute   to   reach   distinct,   although  potentially  

overlapping  sets.").  



           130        Taylor v. Grubbs, 930 F.3d 611, 624 (4th Cir. 2019) (quoting Oak Grove  

                                                                                                                                 

Res., LLC v. Director, OWCP, 920 F.3d 1283, 1291 (11th Cir. 2019) (quoting ANTONIN  

                                                                                                                            

SCALIA  &  BRYAN  A.  GARNER,  READING  LAW   §  26,  at   176  (2012))).  



           131       No.  4FA-92-1728   CI,  Memorandum  Decision   (Alaska   Super.,   Sept.   14,  



 1993)  (finding  allegation  of  incompetence  legally  sufficient  where  statement  of  grounds  

asserted  that  lieutenant  governor  admitted  his  unfamiliarity with  election  laws  he  was  

charged  with   administering),   appeal   dismissed   as   moot,   Coghill   v.  Rollins,   Supreme  

Court  No.  S-6108  (Alaska  Apr.   12,   1995).   



                                                                  -29-                                                            7542
  


----------------------- Page 30-----------------------

 "First, by an allegation that an official does not have basic knowledge or qualifications                                                                                                                                                     



 for the duties of the position," or second, by results - not just alleged mistakes but also                                                                                                                                                                                   



 an explanation "why . . . the official cannot perform the required duties."                                                                                                                                                                      



                                            Again, given the constitutional source of the recall right, we are wary of                                                                                                                                                               



 defining these statutory terms in ways that are not required by their common meaning.                                                                                                                                                                                                         



The more interpretive gloss we judicially place on the terms, the closer we come to the                                                                                                                                                                                           



 situation we warned of in                                                            Meiners :    "wrapping the recall process in such a tight legal                                                                                                                       



 straitjacket that a legally sufficient recall petition could be prepared only by an attorney                                                                                                                                                                     

                                                                                                                                               132        In the absence of legislative specificity,  

who is a specialist in election law matters."                                                                                                                                                                                                           



we agree with the superior court's definition - "lack of ability to perform the official's  

                                                                                                                                                                                                                                                               



required duties" - as reflecting the statutory terms' common meaning.  

                                                                                                                                                                                                            



                                            3.                    Neglect of duties  

                                                                                                       



                                            "Neglect of duty" is defined as "[t]he omission of one to perform a duty  

                                                                                                                                                                                                                                                                          



resting upon him" and "[t]he neglect or failure on the part of a public officer to do and  

                                                                                                                                                                                                                                                                                



perform a duty or duties laid on him as such by virtue of his office or required of him by  

                                                                                                                                                                                                                                                                                    

law."133  

                                                                                                                                                                                                                                                                           

                             The superior court defined "neglect of duty" as "the nonperformance of a duty  



                      132                   Meiners v. Bering Strait Sch. Dist.                                                                               , 687 P.2d 287, 301 (Alaska 1984).                                                           



                      133                   Neglect of duty, BALLENTINE 'S  LAW  DICTIONARY  (3d ed. 1969);  see also  

                                                                                                  

Neglect, B                        LACK 'S  LAW  DICTIONARY  (4th ed. 1951) ("May mean to omit, fail, or forbear                                                                                                                                                     

to do a thing that can be done, or that is required to be done, but it may also import an  

                                                                                                                                                                                                                                                          

 absence of care or attention in the doing or omission of a given act.  And it may mean  

                                                                                                                                                                                                                                                                 

 a designed refusal or unwillingness to perform one's duty." (citation omitted)); Neglect,  

BALLENTINE 'S  LAW  DICTIONARY  (3d ed. 1969) ("Verb: To omit to do or perform some                                                                                                                                                                                        

work, act, or duty, required in one's business or occupation, or required as a legal                                                                                                                                                                                       

 obligation, such as that of making a payment.                                                                                                         Noun: Omission to act or perform.                                                                                     The  

word does not generally imply carelessness or imprudence, but simply an omission to do                                                                                                                                                                                              

 or perform some work, duty or act.");                                                                                     Neglect, T                        HE  NEW  CENTURY  DICTIONARY  (1946)  

 ("[F]ail to carry out or perform.");                                                                           Neglect, T                         HE  AMERICAN  HERITAGE  DICTIONARY  (2d  

                                                                                                                                                                                                                                                (continued...)  



                                                                                                                                        -30-                                                                                                                                7542
  


----------------------- Page 31-----------------------

of office established by applicable law."                                               The court adopted this definition from                                               Valley  



                                                                                                                                                            134  

Residents, a case in which the parties agreed on the definition of the term.                                                                                             

                                                                                                                                                                   In Meiners  



                                                                                                                                                                                 

we discussed the analogous language fromTitle 29, holding that the relevant phrase from  

                                                                                                                                                           135 - included  

                                                                                                                                                                        

                                                                                                                                            

the local-official recall statutes - "failure to perform prescribed duties" 



not just the specific duties imposed by statute on school board members but also "the  

                                                                                                                                                                                 

duty  to  comply  with  statutes  of  general  application  relating  to  education."136                                                                                          We  

                                                                                                                                                                                  



explained that if the board undertook to exercise a power it was not required to exercise,  

                                                                                                                                                                        



"it must do so in accordance with the law, even though it had no obligation to exercise  

                                                                                                                                                                         

that particular power at all."137                                   And we held that the board's "exercise of the power in  

                                                                                                                                                                                      



an  unlawful  manner  could  constitute  a  failure  to  perform  a  prescribed  duty,  one  

                                                                                                                                                                                 

prescribed  by  the statute of general application."138                                                                The definition  adopted  by  the  

                                                                                                                                                                                   



               133           (...continued)  



                                                                                                                                                                                      

ed. 1985) (tr.v.: "1. To ignore or pay not attention to; disregard.  2. To fail to care for or  

                                                                                                                                                                                     

give  proper  attention  to.  3.  To  fail  to  do  or  carry  out,  as  through  carelessness  or  

                                                                                                                                                                              

oversight.  n. 1. The act or an instance of neglecting something. 2. The state of being  

                                                                                                      EBSTER 'S NEW WORLD DICTIONARY  (2d  

neglected. 3. Habitual lack of care."); Neglect, W 

ed. 1980) (verb: "1. to ignore or disregard . . . 2. to fail to care for or attend to sufficiently                                                                

or properly; slight . . . 3. to fail to carry out (an expected or required action) through                                                                               

carelessness or by intention; leave undone;" noun: "1. the action of neglecting 2. lack of                                                                                            

sufficient or proper care; negligence; disregard 3. the state of being neglected.").                                                              



               134           Valley  Residents  for  a  Citizen  Legislature  v.  State,  Div.  of  Elections,  

                                                                                                                                                                    

No. 3AN-04-06827 CI, Order Regarding Pending Motions (Alaska Super., Aug. 24,  

                                                                                                                                                                                   

2004).  

                



               135           Former AS 29.28.140 (1984).  

                                                                              



               136           Meiners, 687 P.2d at 300.  

                                                                           



               137           Id.  



               138           Id.  



                                                                                         -31-                                                                                  7542
  


----------------------- Page 32-----------------------

 superior court in this case is consistent with this explanation and with the common                                                                                                                                                                                                                                                                                                                                                                                        



meaning of the words the legislature used.                                                                                                                                                                                  



                                                                                The State again proposes that we define "neglect of duties" more narrowly                                                                                                                                                                                                                                                                                                                    



than the superior court did, citing the need "to avoid de facto political recall and remain                                                                                                                                                                                                                                                                                                                                                                                              



 consistent with this Court's previous statements about recall in Alaska."                                                                                                                                                                                                                                                                                                                                                                                       The State   



proposes that we require "either an allegation of the significance of the duty or an                                                                                                                                                                                                                                                                                                                                                                                                                              



 allegation that the omission had a tangible consequence to justify subjecting the official                                                                                                                                                                                                                                                                                                                                                                                             



to a recall election."                                                                                                   Again, however, we default to the common meaning of the phrase                                                                                                                                                                                                                                                                                                    



 in the absence of legislative direction. If the recall application alleges both the existence                                                                                                                                                                                                                                                                                                                                                                              



 of a duty and the official's failure to perform it, we will leave it to the voters to decide                                                                                                                                                                                 



whether the duty is significant and whether the failure to perform it matters.                                                                                                                                                                                                                                                                                                                                                                                         



                                        E.	                                     TheAllegationsInTheRecall                                                                                                                                                             Committee's Statement Of Grounds Are  

                                                                                Legally Sufficient And Satisfy The Particularity Requirement.                                                                                                                                                                                                                                                      



                                                                                We analyze in turn each of the four allegations in Recall Dunleavy's recall                                                                                                                                                                                                                                                                                                                                       



 application.   



                                                                                 1.	                                    Paragraph   1:     "Governor   Dunleavy   violated   Alaska   law   by  

                                                                                                                        refusing to appoint a judge to the Palmer Superior Court within                                                                                                                                                                                                                                                                                                    

                                                                                                                        45 days of receiving nominations."                                                                                                                                                                                            



                                                                                The recall application's first paragraph alleges that the governor violated                                                                                                                                                                                                                                                             



Alaska law by refusing to appoint a judge to a specific court location within the time                                                                                                                                                                                                                                                                                                                                                                                                                 



prescribed by statute.                                                                                                          The applicable law is AS 22.10.100, which provides, in pertinent                                                                                                                                                                                                                                                                              



part, that "[t]he governor shall fill a vacancy or appoint a successor to fill an impending                                                                                                                                                                                                                                                                                                                                                                        



vacancy in the office of superior court judge within 45 days after receiving nominations                                                                                                                                                                                                                                                                                                                                                                 



                                                                                                                                                                                                                                                                                                                                                                                                                                   139  

 from the judicial council." The governor's statutory duty is mandatory;                                                                                                                                                                                                                                                                                                                                                                                                                                

                                                                                                                                                                                                                                                                                                                                                                                                                                                   the State does  



                                         139                                    See Petitioners for Incorporation of City & Borough of Yakutat v. Local                                                                                                                                                                                                                                                                                                                                        



Boundary Comm'n                                                                                                     , 900 P.2d 721, 724 (Alaska 1995) ("Unless the context otherwise                                                                                                                                                                                                                                                                                   

                                                                                                                                                                                                                                                                                                                                                                                                                                                     (continued...)  



                                                                                                                                                                                                                                                       -32-	                                                                                                                                                                                                                                           7542
  


----------------------- Page 33-----------------------

not argue otherwise.                     Accepting as true the factual allegation - that the governor did                                                     



indeed "refus[e] to appoint a judge" within the time allowed - we conclude that this                                                                         



paragraph makes a legally sufficient showing of lack of fitness, incompetence, or neglect                                                              



of duty.          



                         Use   of   the   word   "refusal"   suggests   more   than   neglect;   it   suggests   a  

                                                                                             140    An allegation that an official has  

knowledge of the law and intent to disregard it.                                                                                                             



refused to follow the law therefore makes a prima facie showing of lack of fitness; this  

                                                                                                                                                             



is especially true for the governor, who is constitutionally charged with "the faithful  

                                                                                                                                                      

execution of the laws."141  

                                



                         As the superior court further analyzed this allegation, voters could believe  

                                                                                                                                                       



that it showed the governor was "incompetent" because, while not intending to disregard  

                                                                                                                                                   



the law, "he did not understand his duty to conduct his due diligence on the candidates  

                                                                                                                                                



or process before the expiration of the statutory deadlines."  Alternatively, voters who  

                                                                                            



could not or did not care to assess the governor's intent or level of understanding could  

                                                                                                                                                         



             139         (...continued)  



indicates,  the  use  of  the  word 'shall'  denotes  a  mandatory  intent."  (quoting  Fowler  v.  

City  of  Anchorage ,  583  P.2d  817,  820  (Alaska   1978))).  



             140         See, e.g., In re Francis, 604 B.R. 101, 106 (B.A.P. 1st Cir. 2019) (" 'Fail'  

                                                                                                                                                         

is distinguishable from 'refuse' in that 'refuse' involves an act of the will, while 'fail'  

                                                                                                                                                          

may be an act of inevitable necessity." (quoting In re Tougas, 354 B.R. 572, 578 (Bankr.  

                                                                                                                                                      

D. Mass.  2006)); In  re Jordan, 521 F.3d 430, 433  (4th Cir. 2008)  (concluding that  

                                                                                                                                    

because "[t]he term used in [the bankruptcy code] is 'refused' not 'failed[,]' . . . the Court  

                                                                                                                                                         

must find that the Debtors' lack of compliance with the relevant court order was willful  

                                                                                                                                                       

and intentional" (quoting Pierce  v. Fuller  (In re Fuller), 356 B.R. 493, 495  (Bankr.  

                                                                                                                                                     

D.S.D. 2006))); United States v. Wagner, 292 F. Supp. 1, 3 (W.D. Wash. 1967) ("The  

                                

word 'refuse' [in indictment for failure to register with draft board] contains within it an  

                                                                                                                                                               

implication of guilty knowledge on the part of the actor."); Osborne v. Int'l Ry. Co., 123  

                                                                                                                                                             

N.E. 849, 850 (N.Y. 1919) ("Refusal is active, while neglect is passive.").  

                                                                                                                                              



             141         See Alaska Const. art. III, § 16.  

                                                                               



                                                                              -33-                                                                        7542
  


----------------------- Page 34-----------------------

conclude that he simply " 'neglected his duty' because he failed to appoint a new judge                                                                                                                                                                                                             



within the time given by statute."  We agree with the superior court that the paragraph                                                                                                                                                                                             



makes   a prima facie case of at least one of the                                                                                                                                     statutory grounds for                                                             recall and                               is  



therefore legally sufficient.                                 



                                                The State does not argue that this ground fails the particularity requirement                                                                                                                                                



by failing to give the governor fair notice of the conduct at issue.                                                                                                                                                                        The State does make                                      



three arguments against the paragraph's legal sufficiency, all of which we reject.                                                                                                                                                                                                                  First,  



the State argues that the paragraph does not make a prima facie case of incompetence                                                                                                                                                                                  



because it fails to "allege that the governor did not understand his duty to appoint by the                                                                                                                                                                                                                   



deadline; the court itself added this fact."                                                                                                                 But legal sufficiency does not require the                                                                                                     



explicit statement of every reasonable inference from the facts that                                                                                                                                                                              are  stated; if it did,  



the 200-word limit could never be satisfied and the citizens' right to initiate a recall                                                                                                                                                                                                        

                                                                                          142   As explained above, voters can determine that one or more  

would be an empty right.                                                                                                                                                                                                                                                                              



of  the  statutory  grounds  for  recall  are  satisfied  even  while  making  different,  but  

                                                                                                                                                                                                                                                                                                           



reasonable, inferences about the governor's intent or level of understanding.  

                                                                                                                                                                                                                                                                                       



                                                 Second, the State faults the superior court's analysis for its overlapping  

                                                                                                                                                                                                                                                                            



definitions, by which "presumably all neglect of duty demonstrates a lack of fitness,"  

                                                                                                                                                                                                                                                                                          



"mak[ing] 'neglect of duty' completely redundant."  But as explained above, applying  

                                                                                                                                                                                                                                                                                         



the common meaning of these statutory terms does not require us to define them so  

                                                                                                                                                                                                                                                                                                               



precisely as to eliminate the possibility of overlap.  

                                                                                                                                                                                         



                        142                     The   "notice   pleading"   standard   of   civil   litigation   again   provides   the  



appropriate analytical framework.                                                                                             When assessing the sufficiency of a complaint, we                                                                                                                              

"presume all factual allegations of the complaint to be true                                                                                                                                                                 and   make all reasonable                           

inferences in favor of the non-moving party."                                                                                                                        DeRemer v. Turnbull                                                           , 453 P.3d 193, 196                                     

(Alaska   2019)   (emphasis   added)   (quoting   Adkins   v.   Stansel ,   204   P.3d   1031,   1033  

(Alaska 2009)).                                             



                                                                                                                                                     -34-                                                                                                                                              7542
  


----------------------- Page 35-----------------------

                              Third, the State argues that "a harmless act with no lasting impact" - like                                                                                    



the failure to appoint a judge within the time allowed by statute - should not be grounds                                                                                          



for recall because if it is, the process is effectively "a no-cause political recall."  More   



generally,   the   State   argues   that   the   Division   and   reviewing   courts   should   act   as  



gatekeepers to determine which allegations are serious enough to be presented to the                                                                                                          



voters.     The   State   argues   that   "a   governor's   failure   to   issue   a   proclamation   to  



commemorate   Women   Veterans  Day,"   for   example,   in   violation   of   a   statutory  

                     143 would be inconsequential and should never satisfy a for-cause recall process  

mandate,                                                                                                                                                                            



like Alaska's.  

                                 



                              But it is for the voters - not the Division or the courts - to judge the  

                                                                                                                                                                                              

seriousness of an alleged ground.144                                                   The people asked to sign petitions must decide  

                                                                                                                                                   



whether the allegations are serious enough to warrant a recall election; each voter in the  

                                                                                                                                                                                              



voting booth must decide whether the allegations are serious enough to warrant removal  

                                                                                                                                                                                   



from office.  We are not naive to the reality that some voters will vote for or against  

                                                                                                                                                                     



recall motivated by policy differences or political loyalties totally divorced from the  

                                                                                                                                                                                              



grounds alleged  in the recall petition.   This will be the case regardless of how the  

                                                                                                                                                                                             



legislature states the grounds for recall and how those grounds are defined.  But we  

                                                                                                                                                                                              



cannot police the motivations of recall committees, petition signers, or voters; our task  

                                                                                                                                                                                            



is to determine whether the recall application's allegations are legally sufficient and are  

                                                                                                                                                                                              



particular enough to give the targeted official fair notice of the claim. The first paragraph  

                                                                                                                                                                               



of Recall Dunleavy's petition satisfies these requirements.  

                                                                                                      



               143            AS 44.12.078.   



               144            See Meiners v. Bering Strait Sch. Dist.                                                 , 687 P.2d 287, 301 (Alaska 1984)                                 



("Again, it is the responsibility of the voters to make their decision in light of the charges                                                                                      

and rebuttals.  It is not the role of the [elections officials] to take the matter out of the  

                                                                                                                                                                                              

voters' hands.").   



                                                                                              -35-                                                                                       7542
  


----------------------- Page 36-----------------------

                                                                 2.	                             Paragraph 2:                                                            "Governor Dunleavy violated Alaska Law and                                                                                                                                                                                             

                                                                                                 the Constitution[] and misused state funds by unlawfully and                                                                                                                                                                                                                                                  

                                                                                                 without proper disclosure[] authorizing and allowing the use of                                                                                                                                                                                                                                                          

                                                                                                  state    funds    for    partisan    purposes    to    purchase    electronic  

                                                                                                  advertisements and direct mailers making partisan statements                                                                                                                                                                                                              

                                                                                                  about political opponents and supporters."                                                                                                                                                                                      



                                                                 The secondparagraph allegesthatthegovernor violated Alaska law                                                                                                                                                                                                                                                                  and the   



Alaska Constitution by misusing state funds for partisan purposes. We accept as true the                                                                                                                                                                                                                                                                                                                             



allegation that the governor used state funds without proper disclosure and "authoriz[ed]                                                                                                                                                                                                                                                                           



and   allow[ed]   the   use   of   state   funds   for   partisan   purposes   to   purchase   electronic  



advertisements and direct mailers making partisan statements about political opponents                                                                                                                                                                                                                                                                                            



and supporters." State law does require that state funds be used for public purposes, and                                                                                                                                                                                                                                                                                                                          



it does require certain disclosures regarding expenditures that are partisan or campaign-                                                                                                                                                                                                                                                                                        

                                     145   The paragraph thus alleges unlawful conduct that would in fact be unlawful.  

related.                                                                                                                                                                                                                                                                                                                                                                                                                                 

Accepting the factual allegations as true, as we must,146  we conclude that the paragraph  

                                                                                                                                                                                                                                                                                                                                                                                  



makes a prima facie showing of at least one statutorily prescribed ground for recall.  

                                                                                                                                                                                                                                                                                                                                                                                        



                                 145                             Recall Dunleavy cited some of these laws in its statement of grounds,                                                                                                                                                                                                                                                  



though without identifying which law pertained to which ground: Alaska Const. art. IX,                                                                                                                                                                                                                                                                                                                                                   

 § 6 ("No tax shall be levied, or appropriation of public money made, or public property                                                                                                                                                                                                                                                                                                  

transferred, nor shall the public credit be used, except for a public purpose."); AS 39.52                                                                                                                                                                                                                                                                                                              

(Executive   Branch   Ethics   Act);   "AS   15.13,  including   .050,   .090,   .135,   and   .145"  

(addressing registration of persons or groups intending to make political expenditures,                                                                                                                                                                                                                                                                           

requiring certain disclosures, and prohibiting expenditure of public funds to influence                                                                                                                                                                                                                                                                                               

election outcomes); Legislative Council (31-L51006) (memo from Daniel C. Wayne,                                                                                                                                                                                                                                                                                                              

Legislative Counsel, to Representative Zack Fields (May 20, 2019) with subject line                                                                                                                                                                                                                                                                                                                             

"Executive Branch Ethics Act restrictions on use of funds for partisan political purposes                                                                                                                                                                                                                                                                                               

(Work Order No. 31-LS1006)").                                                                                                                                    



                                 146                            Meiners, 687 P.2d at 300 n.18 ("We emphasize that it is not our role, but  

                                                                                                                                                                                                                                                                                                                                                                                                                    

rather that of the voters, to assess the truth or falsity of the allegations in the petition.").  

                                                                                                                                                                                                                                                                                                                                                                               



                                                                                                                                                                                                         -36-	                                                                                                                                                                                               7542
  


----------------------- Page 37-----------------------

                               Again,   if   voters  accept   the   factual   premise,   they   may   draw their                                                                               own  



inferences from the conduct alleged.                                                    They may conclude that the governor knew his                                                               



conduct was illegal and intentionally violated the laws about use of public funds and                                                                                                            



proper disclosures - a prima facie showing of lack of fitness - or that the governor did                                                                                                           



not know he was violating these laws - a prima facie showing of incompetence.                                                                                                                   The  



paragraph also alleges misuse of funds; because the governor has the duty to use funds                                                                                                       

                                                            147  the allegation may be read as alleging a neglect of duties.  

only for lawful purposes,                                                                                                                                                                                   



We conclude that the allegation is legally sufficient.  

                                                                                                                           



                               TheStateargues that theallegation"lacks thenecessaryfactualparticularity  

                                                                                                                                                                               



to support a recall." It argues that "[w]ithout any information about either the statements  

                                                                                                                                                                                  



or the individuals, neither the voters nor the Division nor this Court" can determine  

                                                                                                                                                                                  



whether any laws were broken. But this argument fails for two reasons. First, the factual  

                                                                                                                                                                                           



allegations  in  this  paragraph,  which  we  assume  to  be  true,  establish  a  prima  facie  

                                                                                                                                                                                              



violation of law.  Use of state funds "for partisan purposes," if true, violates the Ethics  

                                                                                                                                                                                           

          148  And the use of state funds to influence the outcome of the election of a candidate  

Act.                                                                                                                                                                              

to  a  state  or  municipal  office,  if  true,  violates  Alaska's  campaign  finance  law.149  

                                                                                                                                                                                                            



                                                                                                                                                                                                       

Assuming the facts are true, there is no need for additional information to establish a  



                                            

ground for recall.  



                147            See  Alaska Const. art. IX, § 6 ("No tax shall be levied, or appropriation of                                                                                         



public money made . . . except for a public purpose.").                                               



                148            AS 39.52.120(b)(6) ("A public officer may not use or authorize the use of  

                                                                                                                                                                                                     

state funds, facilities, equipment, services, or another government asset or resource for  

                                                                                                                                                                                                   

partisan political purposes.").  

                                         



                149            AS 15.13.145.  

                                         



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----------------------- Page 38-----------------------

                               Second, under the notice pleading standard, an allegation need not contain                                                                                



all the facts necessary to determine whether a law has been broken, nor would this                                                                                                               



always be feasible within the 200-word limit.                                                              We conclude that this allegation puts the                                               



governor on notice of the claim and gives him a fair opportunity to respond, which is all                                                                                                           



                                       150  

the law requires.                              



                                                                                                                                                                       

                               3.	             Paragraph  3:                           "Governor  Dunleavy  violated separation-of- 

                                                                                                                                                                                                  

                                               powers by improperly using the line-item veto to attack the  

                                                                                                                            

                                              judiciary and the rule of law."  



                                                                                                                                                         

                               The third paragraph, as edited by the superior court to eliminate the final  



                151  

clause,                                                                                                                                                                                         

                        alleges  that  the  governor  violated  the  separation  of  powers  doctrine  "by  



                                                                                                                                                                                                    

improperly using the line-item veto to attack the judiciary and the rule of law."  In its  



                                                                                                                                                                                                 

opening brief the State contested only the paragraph's factual sufficiency.  After oral  



                                                                                                                                                                                                     

argument we asked for supplemental briefing on the paragraph's legal sufficiency as  



            152  

well.              



                                                                                                                                                                                     

                               Accepting as true the paragraph's allegation of motive - that the governor  



                                                                                                                                                                                                   

used the veto "improperly" and "to attack the judiciary and the rule of law" - we  



                                                                                                                                                                           

conclude  that  the  paragraph  is  legally  sufficient  and  satisfies  the  particularity  



                                

requirement.  To explain our conclusion we first set out the constitutional background  



                                                            

of the principles at issue.  



                150	           See Meiners                  , 687 P.2d at 300.             



                151            As noted above, the superior court found legally insufficient the allegation                                                                         



                                                                                                                                                                                                   

that the governor violated separation of powers by using his veto power "to preclude the  

legislature                  from            upholding                   its       constitutional                       Health,              Education                    and          Welfare  

                                         

responsibilities."  



                152            State, Div. of Elections v. Recall Dunleavy, No. S-17706 (Alaska Supreme  

                                                                                                                                                                                      

Court Order, Apr. 2, 2020).  

                                                  



                                                                                                -38-	                                                                                         7542
  


----------------------- Page 39-----------------------

                                          a.             The line-item veto generally              



                            The governor has the constitutional authority to veto bills passed by the                                                                            



                                                                                                                                                                        153  

legislature and may also, "by veto, strike or reduce items in appropriation bills."                                                                                           The  



                                                                                                                                                                                     

line-item veto (or "item veto") has several purposes:   (1) to prevent "logrolling," a  



                                                                                                                                                                                   

practice by which the legislature "deliberately insert[s] in one bill several dissimilar or  



                                                                                                                                                                                

incongruous  subjects  in  order  to  secure  the  necessary  support  for  passage  of  the  



                      154                                                                                                                                                         155  

                                                                                                                                                                                         

measure";                   and (2) to give "governors some ability to limit state expenditures." 



                                                                                                                                                                   

"Alaska's constitutional convention delegates intended to 'create a strong executive  



                                                                                                                                            156 

branch with "a strong control on the purse strings" of the state.' "                                                                                                             

                                                                                                                                                   Accordingly, the  



              153           Alaska Const. art. II, § 15 ("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.").                                                                                          



              154           Meyer v. Alaskans for Better Elections, 465 P.3d 477, 482 (Alaska 2020)  

                                                                                                                                                                           

(quoting Gellert v. State, 522 P.2d 1120, 1122 (Alaska 1974)).  

                                                                                                                      



              155           Alaska Legislative Council v.  Knowles  (Knowles I),  21  P.3d  367,  373  

                                                                                                                                                                               

(Alaska 2001); see Richard Briffault, The Item Veto in State Courts, 66 TEMP. L. R                                                                                              EV.  

                                                                                                                

                                                                                                                                                               

 1171, 1177 (1993) ("The item veto represents the coming together of three widespread  

                                                                                                                                                                                   

state constitutional policies:  the rejection of legislative logrolling; the imposition of  

                                                                                                                                                                                   

fiscal restrictions on the legislature; and the strengthening of the governor's role in  

                                                                                                                                                                                

budgetary matters."); see also generally Nicholas Passarello,  The Item Veto and the  

                                                                                                             LASKA  L. R             EV. 125, 129-36 (2013)              

Threat of Appropriations Bundling in Alaska, 30 A 

(examining the line-item veto generally and its use in Alaska).                                                    



              156           Knowles I, 21 P.3d at 372 (quoting Thomas v. Rosen, 569 P.2d 793, 795  

                                                                                                                                                                               

(Alaska 1977) (quoting 3 PACC 1740 (Jan. 11, 1956))); see also Alaska Legislative  

                                                                                                                                                                

Council ex rel. Alaska State Legislature v. Knowles (Knowles II), 86 P.3d 891, 895  

                                                                                                                                                                               

(Alaska 2004) (holding governor's veto power applies only to monetary appropriations).  

                                                                                                                                                                                         

However, as we observed in Knowles I, "this control gives the governor no appropriation  

                                                                                                                                                           

power.  The item veto permits the governor only to tighten or close the state's purse  

                                                                                                                                                                           

strings, not to loosen them or to divert funds for a use the legislature did not approve."  

                                                                                                                                                                                         

21 P.3d at 372.  

                       



                                                                                       -39-                                                                                  7542
  


----------------------- Page 40-----------------------

line-item veto found in the Alaska Constitution is an especially strong one.                                                      Alaska's  



governor,   unlike   most,   may   use   the   veto   not   just  to  eliminate   individual   items   in  

appropriations bills but also to reduce the amount appropriated.                                           157  And the legislature  



                                                                                                  158  

can override a veto only by a three-quarters majority vote.                                             

                                                                                           



                                  b.	        The governor's line-item veto power is limited by other  

                                                                                                                                         

                                             constitutional provisions.  

                                                                       



                       The governor has broad discretion to exercise the veto power; vetoes are  

                                                                                                                                             

political and legislative acts,159                                                                               

                                                     and it is the role of the judiciary to judge their legality,  



                                                                                                                                            

not their wisdom. "When an act is committed to executive discretion, the exercise of that  



                                                                                                                                             

discretion within constitutional bounds is not subject to the control or review of the  



                                                                                                                                              

courts.        To  interfere  with  that  discretion  would  be  a  violation  of  the  doctrine  of  



                                         160                                                                                    161  

                                                                                                                                              

separation  of  powers."                         If  a  veto  is  "within  constitutional  bounds"                                    and  is  



                                                                                                                                              162  

                                                                                                                             

accompanied by a veto message that satisfies the "minimum of coherence standard," 



           157         Eleven other states provide for the reduction power.                                       See Gubernatorial   



 Veto Authority with Respect to Major Budget Bill(s)                                    , NAT 'L  CONF. S           T. L  EGISLATURES,  

                                          

atTable6-3(Dec.2008),https://www.ncsl.org/research/fiscal-policy/gubernatorial-veto- 

authority-with-respect-to-major.aspx.  



           158	       Alaska Const. art. II, § 16.  

                                                               



           159        See Knowles I, 21 P.3d at 375-76; see also Arnett v. Meredith, 121 S.W.2d  

                                                                                                                                      

36, 38 (Ky. 1938) ("[T]he exercise of the right of veto, wherever it is conferred by the  

                                                                                                                                             

local Constitution, involves the performance of legislative functions instead of executive  

                                                                                                                                   

functions.").  



           160        Pub. Def.Agencyv.SuperiorCourt, Third Judicial Dist., 534 P.2d 947,950  

                                                                                                                                            

(Alaska 1975) (emphasis added).  

                                                          



           161	       Id.  



           162        See Knowles I, 21 P.3d at 376.  An express constitutional condition on the  

                                                                                                                                             

veto power is that the governor provide "a statement of his objections" to the item or  

                                                                                                                                               

                                                                                                                           (continued...)  



                                                                     -40-	                                                               7542
  


----------------------- Page 41-----------------------

courts will not interfere. Checking the wisdom of the governor's lawful veto is up to the                                                    

legislature through the exercise of its power to override.                                    163  



                       But as with all discretionary governmental actions, the exercise of the  

                                                                                                                                            

                                                                                                              164    We held in  von  

governor's veto power must be "within constitutional bounds."                                                                              

                                                                                                



Stauffenberg that "elected officials cannot berecalled for legally exercisingthediscretion  

                                                                                                                                 

granted to them by law."165  Although we cited a Washington case, Chandler v. Otto, for  

                                                                                                                                             



this proposition, the court in Chandler said it slightly differently:  "Legally sufficient  

                                                                                                                 



means  that  an  elected  official  cannot  be  recalled  for  appropriately  exercising  the  

                                                                                                                                           

discretion granted him or her by law."166  The Washington Supreme Court elaborated on  

                                                                                                                                             



this rule in In re Shipman, holding that "[i]f a discretionary act is involved [in a recall  

                                                                                                                                        



petition], the petitioner must show that the official exercised discretion in a manifestly  

                                                                                                                                

                                       167   And the New Mexico Supreme Court held in CAPS v. Board  

unreasonable manner."                                                                                                                  

                        



           162         (...continued)  



                                                                                                                                                   

amount vetoed. Alaska Const. art. II, § 15. The purpose of the veto message is two-fold:  

                                                                                                                                                   

"It allows the legislature to determine what it must do to avoid incurring another veto.  

                                                                                                                               

And it forces the governor to reveal his or her reasoning, 'so that both the Legislature  

                                                                                                                          

and  the  people  might  know  whether  or  not  he  was  motivated  by  conscientious  

                                                                                                                                   

convictions in recording his disapproval.' "  Knowles I, 21 P.3d at 375-76 (quoting  

                                               

Arnett , 121 S.W.2d at 40).  



           163        Alaska Const., art. II, § 16.  

                                                               



           164        See Pub. Def. Agency, 534 P.2d at 950.  

                                                                                  



           165         von Stauffenberg v. Comm. for Honest & Ethical Sch. Bd., 903 P.2d 1055,  

                                                                                                                                        

 1060 (Alaska 1995) (emphasis added) (citing Chandler v. Otto, 693 P.2d 71, 74 (Wash.  

                                                                                                                                     

 1984)).  

              



           166         Chandler, 693 P.2d at 74 (emphasis added).  

                                                                                    



           167         886 P.2d 1127, 1131 (Wash. 1995); see also Teaford v. Howard, 707 P.2d  

                                                                                                                                          

 1327, 1332 (Wash. 1985) ("[O]fficials cannot be recalled for making a discretionary  

                                                                                                                           

                                                                                                                          (continued...)  



                                                                     -41-                                                               7542
  


----------------------- Page 42-----------------------

                                                                                                     168  

Members  that a recall petition alleging misfeasance                                                       requires a showing that the public                     



                                                                                                                                   169  

official exercised discretion "with an improper or corrupt motive."                                                                                                       

                                                                                                                                          The conclusion in  



                                                                                                                                                                         170  

                                                                                                                                                   

these  cases  is  the  same  whether  the  standard  is  "legal"  exercise  of  discretion, 

                                                                      171 or discretionary acts that arenot"unreasonable"172  

                                                                                                                                           

                                                   

"appropriate"exerciseofdiscretion, 

or done with "improper or corrupt motive"173 :  simply because an act is committed to an  

                                                                                                                                                                         



official's discretion does not mean that citizens may not properly cite it as a reason for  

                                                                                                                                                                        



recall.  



                                        c.	           The governor's veto power is bounded by the separation  

                                                                                                                                                       

                                                      of powers doctrine.  

                                                                            



                           The  Alaska  Constitution  "vest[s]  'legislative  power  in  the  legislature;  

                                                                                                                                                       

executive power in the governor; and judicial power' in the courts."174  

                                                                                                                                                                       

                                                                                                                                          Derived from this  



                                                                                                                                                                         

"distribution of power among the three branches of government" is the separation of  



                                                                                                                                                                       

powers doctrine, which "limits the authority of each branch to interfere in the powers that  



              167          (...continued)  



                                                                            

decision unless they act arbitrarily or unreasonably.").  



              168          Misfeasance    is    "a    lawful    act    performed    in   a    wrongful    manner."   



Misfeasance, BLACK 'S  LAW  DICTIONARY  (11th ed. 2019).                                                

                             



              169	         832 P.2d 790, 792 (N.M. 1992).                      



              170	  

                                                                                                

                           See von Stauffenberg, 903 P.2d at 1060.  



              171	         See Chandler               , 693 P.2d at 74.          



              172	         See Teaford             , 707 P.2d at 1332.         



              173	         See CAPS, 832 P.2d at 792.  

                                                                          



              174  

                                                                                                                                                             

                           Jones v. State, Dep't of Revenue, 441 P.3d 966, 981 (Alaska 2019) (quoting  

Alaska Pub. Interest Research Grp. v. State                                             , 167 P.3d 27, 35 (Alaska 2007)).                   



                                                                                   -42-	                                                                           7542
  


----------------------- Page 43-----------------------

                                                                            175  

have been delegated to the other branches."                                      Although not specifically named in the                         



Constitution, "the separation of powers and its complementary doctrine of checks and   



                                                                                                            176  

balances are part of the constitutional framework of this state."                                                  



                                                                                                                                            

                       Other states' courts have held that another branch's blocking of court  



                                                                                                                              

 system funding violates the separation of powers doctrine if it results in underfunding  



                                                                                                                                             

the  judicial  branch  to  such  an  extent  that  the  courts  cannot  continue  to  meet  their  

                                          177    The State agrees that a funding failure of this magnitude  

                                                                                                                                   

constitutional mandates. 



would be unconstitutional.  

                                                



                       But the separation of powers doctrine does more than protect each branch's  

                                                                                                                                       



 functional existence.  We have described the doctrine's purposes as "to preclude the  

                                                                                                                                                



 exercise  of  arbitrary  power  and  to  safeguard  the  independence  of  each  branch  of  

                                                                                                                                                 



            175        Alaska Pub. Interest Research Grp.                           , 167 P.3d at 35           .   



            176        Id. at 34-35; see also Pub. Def. Agency v. Superior Court, Third Judicial  

                                                             

Dist.,  534  P.2d  947,  950  (Alaska  1975)  ("[I]t  can  fairly  be  implied  [from  the  

                                                                                                                                               

Constitution's separate articles] that this state does recognize the separation of powers  

                                                                                                                 

doctrine.").  



            177        See County of Barnstable v. Commonwealth, 572 N.E.2d 548, 550 (Mass.  

                                                                                                                                          

 1991) ("The constitutional establishment of a tripartite form of government carries with  

                                                                                                                                              

it an implied assumption that sufficient funds will be  provided to operate all three  

                                                                                                                                            

branches."); In re Fiscal Year 2010 Judicial Branch Appropriations, 27 So. 3d 394, 395  

                                                                                                                                               

 (Miss. 2010) ("As part of the separation of powers among, and checks and balances on,  

                                                                                                                                                

these three co-equal branches of government, our Legislature has the duty to fund the  

                                                                                                                                                

judicial branch of government.");  State ex rel. Durkin v. City Council of Youngstown,  

                                                                                                                               

459 N.E.2d 213, 216 (Ohio 1984) ("The doctrine of separation of powers requires that  

                                                                                                                                               

the funds necessary for the administration of justice be provided to the courts."); State  

                                                                                                                                             

ex rel. Metro. Pub. Def. Servs., Inc. v. Courtney, 64 P.3d 1138, 1141 (Or. 2003) ("[W]ith  

                                                                                                                                       

respect to the judiciary, the separation of powers principle is not offended by choices that  

                                                                                                                                               

the other branches make, unlessthosechoices unduly burden thecapacityofthe judiciary  

                                                                                                                                      

to perform its core function.").  

                                  



                                                                       -43-                                                                 7542
  


----------------------- Page 44-----------------------

                                      178  

government."                                  One branch's threat to the independence of another - well short of its                                                                                                                  



elimination   by   underfunding  -   may   therefore   violate   separation   of   powers.     For  



example, in   Public Defender Agency v. Superior Court, Third Judicial District                                                                                                                                                 , we   



reviewed a superior court's order that the attorney general's office prosecute someone                                                                                                                              



for contempt of a child support order; we decided that the order violated the separation                                                                                                                        



of powers doctrine because it overstepped "the line which divides [the judicial] branch                                                                                                                                   



ofgovernment fromthat                                             oftheexecutive"by"infring[ing]upon thediscretionary powers                                                                                             

                                                                                                 179         In  Bradner  v.  Hammond  we  reviewed  a  law  

residing   in   the   executive   branch."                                                                                                                                                                                       



requiring                      legislative                       confirmation                             of          "subcabinet                           officials,                    including                      deputy  

                                                                                                                                                                                                                     



commissioners and division heads of the executive branch"; we affirmed a superior court  

                                                                                                                                                                                                                               



order striking down the law as violating separation of powers because it infringed on the  

                                                                                                                                                                                                                                    



governor's  authority  to  appoint  executive  officials  without  legislative  confirmation  

                                                                                                                                                                                                        

except as constitutionally required.180   And in Alaska Public Interest Research Group v.  

                                                                                                                                                                                                                                        



State  we  considered  whether  the  legislature's  creation  of  the  Alaska  Workers'  

                                                                                                                                                                                                                



Compensation  Appeals  Commission  as  an  executive  agency  violated  separation  of  

                                                                                                                                                                                                                                     



powers by "tak[ing] judicial power from the judicial branch and delegat[ing] that power  

                                                                                                                                                                                                                           

to the executive."181  We concluded that it did not because the Constitution authorized  

                                                                                                                                                                            



                   178              Alaska Pub. Interest Research Grp.                                                                 , 167 P.3d at 35;                              see also Bradner v.                              



Hammond, 553 P.2d 1, 5 (Alaska 1976) (describing separation of powers doctrine's                                                                                                          

underlying rationaleas"theavoidanceoftyrannical                                                                                           aggrandizement ofpowerby                                                     asingle   

branch of government").     



                   179               534 P.2d at 950-51.  

                                                                     



                   180               553 P.2d at 1-2, 7-8 ("In our view, the separation of powers doctrine  

                                                                                                                                                                                                                     

requires that the blending of governmental powers will not be inferred in the absence of  

                                                                                                                                                                                                                                       

an express constitutional provision.").  

                                                                      



                   181               167 P.3d at 34-35.  

                                                                     



                                                                                                                 -44-                                                                                                          7542
  


----------------------- Page 45-----------------------

 the creation of such quasi-judicial agencies, the Commission's jurisdiction was limited                                                                                                                        

 to workers' compensation cases, and its decisions remained subject to judicial review.                                                                                                                                     182  



                                   We have  not previously  had  to  consider  a disputed veto targeting  the  

                                                                                                                                                                                                                          



judicial branch, but other courts have. Some courts deemunconstitutional any executive  

                                                                                                                                                                                                          

 or legislative interference in the judiciary's own assessment of its budgetary needs.183  

                                                                                                                                                                                                                                    



 In Jorgensen v. Blagojevich the Illinois Supreme Court held that the governor's use of  

                                                                                                                                                                                                                             



 the  line-item  veto  to  reduce  a  cost  of  living  adjustment  for  state  judges  violated  

                                                                                                                                                                                                            

 separation of powers.184  The Illinois Supreme Court described the threat this posed to  

                                                                                                                                                                                                            



judicial independence:  

                                                             



                                   As arbiters of the law and guardians of individual liberties,  

                                                                                                                                                                         

                                   members of the judiciary often find themselves at odds with  

                                                                                                                                                                                    

                                   these other branches of government. In fulfilling their duties,  

                                                                                                                                                                               

                                   judges  must  frequently  challenge  the  actions  of  the  very  

                                                                                                                                                                                   

                                   governmental bodies who provide the financial and other  

                                                                                                                                                                                 

                                   resources  they  need  to  operate.                                                                Such  challenges  are  

                                                                                                                                                                                     

                                   unavoidable.  They are an inherent part of the adjudicatory  

                                                                                                                                                               



                  182              Id.  at 35-37.   



                  183              See In re Fiscal Year 2010 Judicial Branch Appropriation                                                                                               , 27 So. 3d 394,             



 395  (Miss.  2010)  (holding  that  statute  authorizing  State  Fiscal  Officer  to  cut  

                                                                                                                                                                                                                        

 appropriations could not constitutionally be applied to judicial branch);                                                                                                                       State ex rel.           

Brotherton v. Blankenship                                             , 207 S.E.2d 421, 431 (W.Va. 1973) (citing "maxim that the                                                                                          

judiciary department possesses the inherent power to determine its needs and to obtain  

                                                                                                                                                                                                                  

 the funds necessary to fulfill such needs" and holding that governor lacked constitutional  

                                                                                                                                                                                               

 authority to disapprove or reduce specific items in judiciary's budget); see also State ex  

                                                                                                                                                                                                                             

 rel. Durkin v. City Council of Youngstown, 459 N.E.2d 213, 216 (Ohio 1984) (citing  

                                                                                                                                                                                                                 

 "well-established principle that the administration of justice by the judicial branch of the  

                                                                                                                                                                                                                           

 government cannot be impeded by the other branches of the government in the exercise                                                                                                                        

 of their respective powers" and holding that city council was required to fully fund court                                                                                                                          

 clerk's salary as required by statute (quoting                                                                     State ex rel. Foster v. Bd. of Cty. Comm'rs                                                                  ,  

 242 N.E.2d 884, 886 (Ohio 1968))).                                       



                  184               811 N.E.2d 652, 656 (Ill. 2004).  

                                                                                                       



                                                                                                            -45-                                                                                                     7542
  


----------------------- Page 46-----------------------

                           process. That their constitutional duty requires this of judges                                              

                           does not mean their decisions will be well received by the                                                         

                           other branches of government. Retribution against the courts                                                  

                           for unpopular decisions is an ongoing threat.                                              [185]  



The governor's primary argument in Jorgensen  was that his veto was unreviewable  

                                                                                                                                                    

because its use was committed to his discretion by the constitution.186                                                                                The Illinois  

                                                                                                                                                                 



Supreme Court held, however, that this position was "incompatible with the principles  

                                                                                                                                                            



of separation of powers and checks and balances that are the foundation for our tripartite  

                                                                                                                                                               

system of government."187  

                                                       



                           A federal district court had similar concerns in a case involving the federal  

                                                                                                                                                                  



Line Item Veto Act, holding the Act unconstitutional in part because it violated the  

                                                                                                                                                       

separation of powers doctrine.188                                      Although the court based its separation of powers  

                                                                                                                                                                 



decision  on  the  "transfer  [of]  non-delegable  legislative  authority  to  the  Executive  

                                                                                                                                                          

Branch,"189  it cautioned in a footnote that "the Line Item Veto could also affect judicial  

                                                                                                                                                                



              185          Id.  at 660-61.   



              186          Id.  at 666.   



              187          Id.   



              188          City of New York v. Clinton, 985 F. Supp. 168, 181-82 (D.D.C. 1998). The  

                                                                                                                                                                        

Line  Item Veto  Act  was  later  struck  down  by  the  Supreme  Court  as  violating  the  

                                                                                                                                                                         

Presentment  Clause,  which  requires  that  legislation  be  passed  by  both  houses  of  

                                                                                                                                                                          

Congress before the President may sign it into law.  See U.S. Const. art. I, § 7, cl. 2;  

                                                                                                                                                                           

Clinton v. City of New York, 524 U.S. 417, 436-49 (1998).   The Supreme Court in  

                                                                                                                                                                           

Clinton held that the Line Item Veto Act effectively "authorize[d] the President to create  

                                                                                                                                                                    

a different law" than that passed by Congress, circumventing the procedures required by  

                                                                                                                                                                           

the  Presentment  Clause.                               524  U.S.  at  448.                      The  Alaska  Constitution  has  similar  

                                                                                                                                                                 

procedural requirements, but it expressly authorizes the line-item veto.   See  Alaska  

                                                                                                                                                                 

Const. art. II, § 15.  

                                        



              189          Clinton, 985 F. Supp. at 181.  

                                                                              



                                                                                    -46-                                                                             7542
  


----------------------- Page 47-----------------------

 independence," explaining:                               "It is possible that the President might use the Line Item                                                  



                                                                                                                                                                           190  

Veto to manipulate the judiciary's budget, thus exerting pressure on its members."                                                                                               



 Similar concerns are evident in the United States Supreme Court's explanation of the  

                                                                                                                                                                         

                                                                                                                               191    which  prevents  the  

purposes  of  the  U.S.  Constitution's  Compensation  Clause,                                                                                                          

                                                                                                               



 diminishment of judges' salaries during their terms of office:  "A Judiciary free from  

                                                                                                                                                                      



 control by the Executive and the Legislature is essential if there is a right to have claims  

                                                                                                                                                                   



 decided  by  judges  who  are  free  from  potential  domination  by  other  branches  of  

                                                                                                                                                                          

 government."192  



                           Courts can usually stay out of veto disputes between the legislative and the  

                                                                                                                                                                          

 executivebranches without risk to theconstitution's distributionofpowers;193 thepowers  

                                                                                                                                                                 



 of the legislative and executive branches are close to equipoise, and those two branches  

                                                                                                                                                              



              190          Id.  at 179 n.14.                 The court cited a law review article that focused on the                                                    



 question "Could an executive use the line item veto to punish, reward, or otherwise                                                                       

 influence   the   judiciary?,"   concluding   that   the   risk   to   judicial   independence   was  

 significant.    Id.  (citing Robert Destro,                                 Whom Do You Trust? Judicial Independence, the                                                

Power of the Purse & the Line Item Veto                                            , F  ED. L      AW., 26, 29 (1997).       



              191  

                                                                                                                                                                 

                           See U.S. Const. art. III, § 1 ("The Judges, both of the supreme and inferior  

                                                                                                                                                                 

 Courts, shall  hold their Offices during good Behaviour, and shall, at stated Times,  

                                                                                                                                                        

receive for their Services, a Compensation, which shall not be diminished during their  

                                                                                                                                                                  

 Continuance in Office."). The Alaska Constitution has a parallel provision.  See Alaska  

                                                                                                                                                                   

 Const. art. IV, § 13 ("Compensation of justices and judges shall not be diminished during  

                                                                                                                                                                

their terms of office, unless by general law applying to all salaried officers of the State.").  



              192           United States v. Will, 449 U.S. 200, 217-18 (1980).  

                                                                                                                                     



              193          See Knowles I, 21 P.3d 367, 376 (Alaska 2001) (observing that disputes  

                                                                                                                                                               

 involving validity of governor's reasons for veto "are inherently political" and "[t]he  

                                                                                                                                                                    

judiciary has no special competence" to settle them).  

                                                                                                              



                                                                                    -47-                                                                             7542
  


----------------------- Page 48-----------------------

                                                                                                                                                                                                               194  

 can   negotiate   political   issues   from   positions   of   roughly   equal   strength.                                                                                                                              But   the  



judiciary does not negotiate its decisions with the other branches, even though it is, by                                                                                                                                                

                                                                                                                                            195 and is often called upon to declare  

 some measures, the weakest branch of government                                                                                                                                                                            

 the legality of the other branches' actions.196  The State, through the executive branch,  



 appears before the courts as a litigant more than does any other single entity.   An  

                                                                                                                                                                                                                                      



 implication that the State can pressure a court to rule in its favor because of budgetary  

                                                                                                                                                            



 concerns sends a discouraging message to other litigants - especially those litigating  

                                                                                                                                                                                                                       



                   194               See Simpson v. Murkowski                                                 , 129 P.3d 435, 447 (Alaska 2006) ("[U]nder the                                                                           



 Alaska Constitution 'it is the joint responsibility of the governor and the legislature to   

 determine the State's spending priorities . . . .' ");                                                                              Ninetieth Minn. State Senate v. Dayton                                                                   ,  

 903 N.W.2d 609, 624 (Minn. 2017) ("[O]ur constitution does not requirethat theJudicial                                                                                                                                    

 Branch referee political disputes between our co-equal branches of government over                                                                                                                                                

 appropriations   and   statewide   policy   decisions   when   those   branches   have   both   an  

 obligation and an opportunity to resolve those disputes between themselves.").                                                                                                    



                   195               See, e.g., T                  HE  FEDERALIST  NO. 78 (Alexander Hamilton) ("[T]he judiciary                                                                                        

                                                   

 is beyond comparison the weakest of the three departments of power; . . . [it] can never                                                                                                                                        

 attack with success either of the other two; and . . . all possible care is requisite to enable                                                                                                                              

 it to      defend itself against their attacks.");                                                           Jorgensen v. Blagojevich                                             , 811 N.E.2d 652, 660-                           

 62 (Ill. 2004).                         



                   196               See Marbury v. Madison, 5 U.S. 137, 177 (1803) ("It is emphatically the  

                                                                                                                                                                                                                                        

 province and duty of the judicial department to say what the law is.");  Wielechowski v.  

                                                                                                                                                                                                                                           

 State, 403 P.3d 1141, 1142-43 (Alaska 2017) ("[O]f the three branches of our state  

                                                                                                                                                                                                                                   

 government,  we  are  entrusted  with  the  'constitutionally  mandated  duty  to  ensure  

                                                                                                                                                                                                                            

 compliance  with  the  provisions  of  the  Alaska  Constitution.'  "  (quoting Malone  v.  

                                                                                                                                                                                                                                          

Meekins, 650 P.2d 351, 356 (Alaska 1982))); see also Gamble v. United States, 139 S.  

                                                                                                                                                                                                                                          

 Ct. 1960, 1985 n.5 (2019) (Thomas, J., concurring) (noting that "[i]n the context of a  

                                                                                                                                                                                                                                             

judicial case or controversy," other branches' determinations about the constitutionality  

                                                                                                                                                                                                   

 of their actions "do not bind the Judiciary in performing its constitutionally assigned  

                                                                                                                                                                          

 role," and that "consistent with the nature of the 'judicial Power,' the federal courts'  

                                                                                                                                                                                                                            

judgments bind all parties to [a] case, including Government officials and agencies").  

                                                                                                                                                                                                               



                                                                                                                   -48-                                                                                                           7542
  


----------------------- Page 49-----------------------

 against the State - who look to the courts for impartial justice and in most cases lack   

 any countervailing influence.                                                   197  



                                     In short, the separation of powers doctrine is intended in part to ensure that  

                                                                                                                                                                                                                                   



 the judiciary is not pressured to decide cases with one eye on its budget.  We conclude  

                                                                                                                                                                                                                    



 that the doctrine may be violated by a governor's use of the veto power with the intent  

                                                                                                                                                                                                                             



 of pressuring the courts to rule in a particular way.  

                                                                                                                              



                                                                          d.                Analyzing the sufficiency of the allegation  

                                                                                                                                                                                         



                                     Taken as true, Recall Dunleavy's allegation that the governor violated the  

                                                                                                                                                                                                                                     



 separation of powers doctrine "by improperly using the line-item veto to attack the  

                                                                                                                                                                                                                 



judiciary and the rule of law" is legally sufficient.  As explained above, the veto power,  

                                                                                                                                                                                                                          



 though discretionary, may be exercised only within constitutional limits.  Separation of  

                                                                                                                                                                                                                                        



 powers is a fundamental part of our constitutional structure, and the doctrine may be  

                                                                                                                                                                                                                                      



 violated  by  a  governor's  "improper"  use  of  a  veto  "to  attack  the  judiciary."                                                                                                                                         The  

                                                                                                                                                                                                                                



 paragraph thus makes a prima facie showing of lack of fitness; voters could conclude that  

                                                                                                                                                                                                                                   



 violating separation of powers by an improper use of the veto demonstrates disregard for  

                                                                                                                                                                                                                                      



                   197               Similar concerns were voiced during hearings on the Line Item Veto Act,                                                                                                                      



 when the Chief Judge of the Sixth Circuit Court of Appeals testified on behalf of the U.S.                                                                                                                                      

 Judicial   Conference   that   "[t]he   last   thing   needed   is   a   new   mechanism   to   give   the  

 executive branch control of the Judiciary's budget, particularly in light of the fact that                                                   

 the United States, almost always through the executive branch, has more lawsuits in the                                                                                                                                             

 Federal courts than any other litigant."                                                                     Joint Hearing Before the H. Comm. on Gov't                                                                     

Reform   and   Oversight   & the                                                     S.   Comm.   on   Governmental   Affairs,   104th   Cong.   88  

 (statement of Hon. Gilbert S. Merritt, Chairman, Exec. Comm. Judicial Conference of                                                                                                                                                   

 the United States);                                see also              Louis Fisher,                        Judicial Independence and the Line Item Veto                                                                                 ,  

 36 JUDGES ' J. 18, 52-53 (1997) (citing Letter from Leonidas Ralph Mecham, Sec'y,                                                                                                             

 Judicial Conference of the United States, to Senators Ted Stevens and Pete V. Domenici                                                                                                                            

 (Mar. 15, 1996)).          



                                                                                                                 -49-                                                                                                           7542
  


----------------------- Page 50-----------------------

                                                                                                    198  

the Constitution the governor is entrusted to uphold.                                                     The paragraph makes a prima                    



facie showing of incompetence; voters could conclude that a governor who is unaware                                                                 



of   the   limits   and   constitutional  importance   of   the   separation   of   powers   doctrine  

demonstrates a lack of ability to perform required duties.                                                  199  



                         The superior court held that "neglect of dut[y]" could also be shown by the  

                                                                                                                                                              



allegation  that  "Governor  Dunleavy  breached  his  oath  of  office  to  defend  the  

                                                                                                                                                             



Constitution by attempting to infringe upon the powers reserved to the Judicial branch."  

                                                                                                                                                                     



We  agree  with  the  superior  court  that  this  made  a  prima  facie  showing  of  "the  

                                                                                                                                                           



nonperformance of a duty of office established by applicable law."  

                                                                                                                                



                         The State argues that the separation of powers allegation does not satisfy  

                                                                                                                                                



the particularity requirement because it "fails to inform anyone unfamiliar with the issue  

                                                                                                                                                           



of what the governor did."  We agree that this is the leanest of the four allegations; it  

                                                                                                                                                                 



does not tell the whole story, nor could it within the statutory 200-word limit.  But the  

                                                                                                                                                              



ultimate test is of "notice" and whether the governor has "a fair opportunity to defend his  

                                                                                                                                                               

                                                                                200  The State does not argue that the governor  

conduct in a rebuttal limited to 200 words."                                                                                                       

                                                                  



cannot  understand  the  factual  basis  for  the  allegation.                                                  The  paragraph  alleges  the  

                                                                                                                                                             



act - use of the line-item veto - and asserts its illegality by reference to the separation  

                                                                                                                                                 



of powers doctrine and an "improper" motive.  Both the committee and the governor  

                                                                                                                                                   



             198         See   Alaska   Const.   art.   XII,   §   5   (requiring   public   officers   to   swear   to  



"support and defend . . . the Constitution of the State of Alaska").                                       



             199         An analogous case is Coghill v. Rollins, in which the superior court found  

                                                                                                                                                         

legally sufficient the allegation that the lieutenant governor lacked familiarity with the  

                                                                                                                                                              

election laws he was charged to administer.  Coghill v. Rollins, No. 4FA-92-1728 CI,  

                                                                                                                                   

Memorandum Decision (Alaska Super., Sept. 14, 1993),  appeal dismissed as moot,  

                                                                                                                              

Coghill v. Rollins, Supreme Court No. S-6108 (Alaska Supreme Court Order, Apr. 12,  

                                                                                                                                                              

 1995).  

              



             200         Meiners v. Bering Strait Sch. Dist., 687 P.2d 287, 302 (Alaska 1984).  

                                                                                                                                                 



                                                                              -50-                                                                        7542
  


----------------------- Page 51-----------------------

have the same opportunity to explain the                                allegation's factual background and why it does                             



or does not support recall.                          It is then "the responsibility of the voters to make their                                    

                                                                                        201     Again  considering  the  statutory  

decision   in   light   of   the   charges   and   rebuttals."                                                                              

                                202  and the liberality with which we are required to review citizens'  

substantiality test                                                                                                                          

                          

exercise  of  this  constitutional  right,203   we  conclude  that  the  allegation  satisfies  the  

                                                                                                                                     

particularity requirement.204  

                                                    



                        4.	         Paragraph 4:  "Governor Dunleavy acted incompetently when  

                                                                                                                                                  

                                    he mistakenly vetoed approximately $18 million more than he  

                                                                                                                                                        

                                    told the legislature in official communications he intended to  

                                                                                                                                                        

                                    strike. Uncorrected, the error would cause the state to lose over  

                                                                                                                                                    

                                    $40 million in additional federal Medicaid funds."  

                                                                                                                                      



                        Thefourth paragraph oftherecall applicationagaininvolvesthegovernor's  

                                                                                                                                         



discretionary power to apply the line-item veto to appropriations bills and to decrease  

                                                                                                                                             



            201	        Id.  at 301.   



            202	        AS 15.45.550(1).   



            203	        Meiners, 687 P.2d at 296.  

                                                               



            204         The dissent contends that vetoing  "such  a  small  portion" of the court  

                                                                                                                                                  

system's budget could not violate the separation of powers.  It also contends that this  

                                                                                                                                                      

court has not concluded that it could.  But we conclude that vetoing this non-de minimis  

                                                                                                                                              

amount of the total budget, if done for improper purposes as the recall application  

                                                                                                                                        

alleged, could violate separation of powers. The dissent also contends that this court has  

                                                                                                                                                      

not concluded that "the governor illegally used the line-item veto to attack the judiciary  

                                                                                                                                            

and the rule of law."   It is for the voters, not this court, to decide the truth of the  

                                                                                                                                                      

allegations that the governor's veto was for an improper purpose, such as for retribution  

                                                                                                                                         

or with an intent to pressure the courts to rule a particular way.  Our role is limited to  

                                                                                                                                                        

deciding whether the allegations, if true, could justify recall as the constitution permits  

                                                                                                                                               

for lack of fitness or incompetence or neglect of duty.  We conclude that they do.  

                                                                                                                                             



                                                                          -51-	                                                                    7542
  


----------------------- Page 52-----------------------

                                                        205  

 legislative appropriations.                                  It alleges that the governor made a mistaken veto that, if                                                             



uncorrected, would have "cause[d] the state to lose over $40 million in additional federal                                                                                



 Medicaid funds." The State does not contest that the paragraph is alleged with sufficient                                                                           



 factual particularity; the governor has a fair opportunity to respond.                                                                             



                             We   conclude   that   the   allegation   is   also   legally   sufficient.     While   the  



 governor's "legal" or "proper" exercise of discretion cannot establish a for-cause ground                                                                                

                     206  as discussed above, the specific allegation here is that the governor was not  

 for recall,                                                                                                                                                                      



making a conscious decision but rather "acted incompetently" and made a mistake, later  

                                                                                                                                                                               



 corrected. " 'Discretionary acts' are those requiring 'personal deliberation, decision and  

                                                                                                                                                                                 

judgment.' "207   A mistake by definition is not a deliberate decision or judgment; it is not  

                                                                                                                                                                                  

 an exercise of discretion.208  

                                



                                                                                                                                                                                   209  

                             The consequences of a mistaken veto may be serious and hard to correct.                                                                                      

                                                                                                                                                                    



               205           Alaska  Const.  art.  II,  §   15.  



               206           See  von  Stauffenberg  v.   Comm.  for  Honest  &  Ethical  Sch.  Bd.,  903  P.2d  



 1055,   1060  (Alaska   1995).  



               207           State  v.  Haley,   687  P.2d   305,   316   (Alaska   1984)   (quoting W.   PROSSER,  



 HANDBOOK   OF   THE   LAW   OF   TORTS  §  132,   at   988   (4th   ed.   1971));   see   Discretion,  

 BLACK 'S   LAW   DICTIONARY   (11th   ed.   2019)   ("1.   Wise   conduct  and   management  

 exercised  without  constraint;  the  ability  coupled  with  the  tendency  to  act  with  prudence  

 and    propriety.    2.    Freedom    in    the    exercise    of   judgment;    the    power    of    free  

 decision-making.").  



               208           See  Tanenbaum  v.  D'Ascenzo,  51  A.2d  757,  758  (Pa.   1947)  (holding  that  



mandamus,  which  typically  is  not  available  for  setting  aside  discretionary  acts  of  public  

 officials,  nonetheless  is  appropriate  when  "by  a  mistaken  view  of  the  law  or  an  arbitrary  

 exercise  of  authority  there  has  been  in  fact  no  actual  exercise  of  discretion.").  



               209           As noted above, the Alaska constitution requires a three-quarters majority  

                                                                                                                                                                       

vote in the legislature to override a veto of an appropriation bill.  Alaska Const. art. II,  

                                                                                                                                            

                                                                                                                                                            (continued...)  



                                                                                        -52-                                                                                 7542
  


----------------------- Page 53-----------------------

Some    voters    could    decide    that    even    a    single    mistake    of    sufficient    magnitude  



demonstrates unfitness or incompetence.                                                                     We therefore conclude that this allegation                                           



makes a prima facie showing of at least one of the statutorily prescribed grounds for                                                                                                                              



                                                                                                                           210  

recall and is both legally and factually sufficient.                                                                               



VI.              CONCLUSION  



                                  For  these  reasons,  we  AFFIRM  the  superior  court's  order  granting  

                                                                                                                                                                                                    



summary judgment to Recall Dunleavy.  

                                                                           



                 209              (...continued)  



     

§ 16.  



                 210              Although   this   paragraph   specifically   alleges   that   the   governor   acted  



"incompetently," Recall Dunleavy argues that it encompasses all three grounds for recall                                                                                                                     

alleged in the application's introductory phrase.  We conclude only that the allegation  

                                                                                                                                                                                                 

satisfies at least one of the statutorily prescribed grounds for recall; we leave it to the                                                                                                                        

voters to decide whether it satisfies more than one.  

                                                                                                                                      



                                                                                                        -53-                                                                                                  7542
  


----------------------- Page 54-----------------------

 STOWERS, Justice, dissenting in part.                                                                     



                                          I dissent from the court's holdings that Recall Dunleavy's two allegations                                                                                                                       



concerning Governor Dunleavy's exercise of his constitutional authority to veto certain                                                                                                                                                                 



appropriations by the legislature are legally sufficient. In my opinion, neither allegation                                                                                                                                                   



is legally sufficient.        



                                         Article II, section 15 of the Alaska Constitution 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."                                                  This express constitutional grant of authority and discretion is                                                                                                                             

                                                                                                                                                                        1     And the court fails to cite any  

not otherwise limited or qualified in our constitution.                                                                                                                                                                                                          



history from the constitutional convention where delegates expressed any intention to  

                                                                                                                                                                                                                                                                      



limit the governor's strong veto authority.  To the contrary, as the court notes above,  

                                                                                                                                                                                                                                                       



when the delegates to the Alaska constitutional convention deliberated and drafted the  

                                                                                                                                                                                                                                                                   



constitution - and when Alaskans voted to adopt their work - they decided that the  

                                                                                                                                                                                                                                                                  



 State of Alaska was to be led by an executive embued with an especially strong veto  

                                                                                                                                                                                                                                                               

power, including the power to reduce amounts appropriated.2                                                                                                                                          That is what Governor  

                                                                                                                                                                                                                                              



Dunleavy did in this case.  

                                                                                    



                                         Notwithstanding the notable absence of textual limiting language in our  

                                                                                                                                                                                                                                                                  



constitution and without identifying any constitutional convention history supporting  

                                                                                                                                                                                                                                           



limitation,   the  court  today   creates  new  limitations  on  the  governor's  explicit  

                                                                                                                                                                                                                                                  



constitutional veto authority.  The court says the governor's line-item veto is limited by  

                                                                                                                                                                                                                                                                     



                     1                    Of course, the constitution authorizes the legislature to override a veto by                                                                                                                                               



a   two-thirds   majority   vote   or,   for   revenue   or   appropriations   bills,   a   three-quarters  

majority vote.                                Alaska Const. art. II, § 16.                                           



                     2                    Opinion at 39-40.  

                                                                            



                                                                                                                                -54-                                                                                                                         7542
  


----------------------- Page 55-----------------------

                                                                                                                                                              3  

other "constitutional bounds" like the separation of powers doctrine.                                                                                            But the separation     



of powers doctrine, whatever its contours in other contexts, is not applicable to the                                                                                                               



governor's line-item vetoes in this case.                                                        



                               First, the Alaska Constitution does not specifically express or recognize a                                                                                               



separation of powers - the doctrine is a court-created doctrine, "implied [from the                                                                                                                 

constitution's separate articles]."                                          4  



                                Second,  this  is  not  a  case  where  the  governor's  veto  was  of  such  a  

                                                                                                                                                                                          



magnitude that it underfunded the judicial branch to such an extent that the courts could  

                                                                                                                                                                                               



not continue to meet their constitutional mandates. In this case, the governor's line-item  

                                                                                                                                                                                       



veto reduced the court system's budget by $334,700.  

                                                                                                                               



                               Third,  and  of  the  greatest  concern,  the  court's  opinion  holds  that  the  

                                                                                                                                                                                                    



separation of powers "doctrine may be violated by a governor's use of the veto power  

                                                                                                                                                                                 

with the intent of pressuring the courts to rule in a particular way."5                                                                                          And how is one to  

                                                                                                                                                                                                       



determine this malign intent?  The court says that a recall petition's mere allegation that  

                                                                                                                                                                                                   



the governor " 'improperly us[ed] the line-item veto to attack the judiciary and the rule  

                                                                                                                                                                                                   

of law' is legally sufficient."6                                        The court, purporting to apply a "prima facie" standard,  

                                                                                                                                                                                       



accepting the allegations of "improper" intent as true, leaves it to the voters to assess the  

                                                                                                                                                                                                     

truth of the allegation.7  

                                                         



                               The court here makes an egregious error.  Nowhere in its opinion does the  

                                                                                                                                                                                                     



                3               Opinion  at  40-41,  49.  



                4              Pub. Def. Agency v. Superior Court, Third Judicial  Dist.,  534  P.2d  947, 950  



(Alaska   1975).  



                5               Opinion  at  49.  



                6               Opinion  at  49-50.  



                7               Opinion  at   19,  49-50.  



                                                                                                 -55-                                                                                           7542
  


----------------------- Page 56-----------------------

court actually conclude that the governor's line-item veto of such a small portion of the                                                                                                                



court system's budget violates the separation of powers, nor does the court conclude the                                                                                                                 



governor illegally used the line-item veto to attack the judiciary and the rule of law.                                                                                                         



                                In  von Stauffenberg v. Committee for Honest & Ethical School Board                                                                                                     we  



held that allegations in which the recall targets were merely "properly exercising the                                                                                                                   

                                                                                                                                                                      8  Unless and until  

discretion granted to themby law" were insufficient grounds for recall.                                                                                                                               



the court actually determines that the governor's vetoesviolated the Alaska Constitution,  

                                                                                                                                                                                  



that  the  governor  did  not  legally  exercise  the  discretion  granted  to  him  by  the  

                                                                                                                                                                                                        



constitution, he cannot be subject to recall. The governor, and the citizens of Alaska, are  

                                                                                                                                                                                                         



entitled to a legal determination whether the governor's exercise of his constitutional  

                                                                                                                                                                               



discretion was valid. This determination is a legal decision that only the court can make.  

                                                                                                                                                                                                  



                                The court abdicates its responsibility and leaves it to the voters to decide  

                                                                                                                                      



this question of law. The court further abdicates its responsibility in failing to determine  

                                                                                                                                                                                         



the legal question whether the governor's line-itemvetos actually violated the separation  

                                                                                                                                                                                        



of powers doctrine.  Even accepting arguendo that a line-item veto might violate the  

                                                                                                                                                                                                         



separation  of  powers  doctrine,  the  court  does  not  conclude  that  in  this  case  the  

                                                                                                                                                                                                       



governor's line-item veto was such a violation.  It is my contention that the court must  

                                                                                                                                                                                                     



first determine if the governor actually did violate a constitutional threshold - only then  

                                                                                                                                                                                                      



can the voters decide if that violation merits recall.  But the court leaves it to the voters  

                                                                                                                                                                                                  



to make these legal constitutional determinations.  

                                                                                                                          



                                Thecourt correctly notes that theconstitutionalframers rejected leavingthe  

                                                                                                                                                                                                          

scope of the voter's right to recall to the voters themselves.9   The framers instead left the  

                                                                                                                                                                                                         



                8               903  P.2d   1055,   1060  (Alaska   1995).    



                9               Opinion  at  7-10.  



                                                                                                   -56-                                                                                                      7542  


----------------------- Page 57-----------------------

                                                                                                10  

task of determining the grounds for recall to the legislature,                                     and the legislature adopted       



                                                                                                      11  

by   statute   the   four   grounds   discussed   in   the   main  opinion.                                                  

                                                                                                            We  have  previously  



                                                                                                                                          

observed, and do so again today, that the four statutory grounds can be ambiguous and  



                                                                                                                                 

that   "more   carefully   drawn   statutes"   could   "decrease   the   need   for   judicial  

                        12   We have also explained that "[t]he political nature of the recall makes  

involvement."                                                                                                                        



the legislative process, rather than judicial statutory interpretation, the preferable means  

                                                                                                                                     



of striking the balances necessary to give effect to the Constitutional command that  

                                                                                                                                         

elected officers shall be subject to recall."13                           Truer words cannot be spoken.  

                                                                                                                 



                      I urge every legislator to carefully consider the court's opinion today. The  

                                                                                                                                          



opinion opens the door to standardless recall petitions.  The court repeatedly says that  

                                                                                                               



Alaska courts are to apply the "prima facie" standard to recall petition allegations and,  

                                                                                                                                        



accepting the allegations as true, if any logical connection can be made between an  

                                                                                                                                           



allegation and a statutory ground for recall, the petition must be found to be legally  

                                                                                                                                    

                 14  I urge the legislature to, at the least, provide specific statutory definitions  

sufficient.                                                                                                   



for the recall grounds to decrease the opportunity for judicial involvement in what is best  

                                                                                                                                         



done by the legislature - that is, legislating.  This is not a partisan issue.  The greatly  

                                             



expanded access to recall created by the court's decision today can and will be used not  

                                                                                                                                          



to actually seek to recall an elected official for cause, but instead to seek to recall an  

                                                                                                                                           



           10         Alaska  Const.  art.  XI,  §  8;  Opinion  at   10.  



           11         AS   15.45.510.  



           12         Meiners   v.   Bering   Strait   Sch.  Dist.,   687   P.2d   287,   296   (Alaska   1984);  



Opinion  at  25.  



           13         Meiners,  687  P.2d  at  296.  



           14         See,  e.g.,  Opinion  at  20,  24.  



                                                                    -57-                                                              7542
  


----------------------- Page 58-----------------------

elected official because of disagreements over policy. And in Alaska, disagreement over                                                                                                                                                                                             



policy or political philosophy is not a proper subject for recall.                                                                                                                            



                                             In my view, the governor did not violate the separation of powers by using                                                                                                                                                         



his constitutional discretion to line-item veto a small portion of the court's budget.                                                                                                                                                                                                               



Rather,   it   is   the   court   that   violates  the   separation   of   powers,   by   intruding   on   and  



interfering with a power expressly granted to another branch of government - the                                                                                                                                                                                                       



governor's express constitutional authority to exercise his discretion to veto or reduce   



a legislative appropriation.              



                                             The doctrine of separation of powers prohibits one branch of government                                                                                                                                      



from "exercis[ing] any power that is not explicitly bestowed by the constitution or that                                                                                                                                                                                              

                                                                                                                                                         15       In doing so, it "avoid[s] . . . tyrannical  

is not essential to the exercise of that power."                                                                                                                                                                                                          



aggrandizement of power by a single branch of government through the mechanism of  

                                                                                                                                                                                                                                                                                           

diffusion of governmental powers."16   But it also "limits the authority of each branch to  

                                                                                                                                                                                                                                                                                            



interfere in the powers that have been delegated to the other branches" and, by doing so,  

                                                                                                                                                                                                                                                                                         

"safeguard[s] the independence of each branch of government."17  

                                                                                                                                                                        



                                             By permitting voters to recall the governor because he exercised a power  

                                                                                                                                                                                                                                                                          



explicitly bestowed  on him by the constitution, the court interferes with the power  

                                                                                                                                                                                                                                                                            



delegated to the executive branch.  In so doing the court unconstitutionally aggrandizes  

                                                                                                                                                                                                                                                          



its own power and imperils the independence of another branch of government.  The  

                                                                                                                                                                                                                                                                                   



court's decision  undermines Alaska's constitution and  the separation  of powers.                                                                                                                                                                                                             I  

                                                                                                                                                                                                                                                                                            



therefore dissent from this part of the court's opinion.  

                                                                                                                                                                                       



                       15                     16A  AM.  JUR.  2D  CONSTITUTIONAL  LAW  §  236  (2020).  



                       16                   Brandner  v.  Hammond,  553  P.2d   1,  5  (Alaska   1976).  



                       17                   Alaska  Pub.  Interest Research Grp. v. State, 167  P.3d 27, 35 (Alaska 2007).  



                                                                                                                                          -58-                                                                                                                                    7542
  

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