As expected, AG Clarkson declares Dunleavy recall illegitimate

Attorney General Kevin Clarkson, trying to provide political cover for his boss, offers a lame legal opinion to temporarily stop the recall effort against Gov. Mike Dunleavy.

The court challenge to come will expose the weakness of Clarkson’s legal reasoning, which is on clear display in the 25-page opinion he released Monday. The prediction here is that Clarkson will continue his losing streak in the courts.

He started from the conclusion that the recall was unwarranted and worked backwards to invent an argument. To borrow a phrase, Clarkson assembled a “hodgepodge of accusations, none of which appear legally sufficient” to keep the recall from moving forward.

This opinion is a delaying tactic, designed to draw out the process for as along as possible, in hope of saving Dunleavy.

There is no argument that Dunleavy violated the Alaska Constitution when he refused to appoint a Palmer judge from a list submitted by the Alaska Judicial Council. That’s the most solid of the four grounds for recall cited in the petition.

The recall petition says Dunleavy “violated Alaska law by refusing to appoint a judge to the Palmer Superior Court within 45 days of receiving nominations.”

The Constitution says this about naming judges: “The governor shall fill any vacancy in an office of supreme court justice or superior court judge by appointing one of two or more persons nominated by the judicial council.”

Even Clarkson admits that Dunleavy violated the law.

But Alaska’s attorney general claims it’s OK because Dunleavy only violated the Constitution for a little while, not long enough to matter. Before long, Clarkson will be writing a treatise on the 10-second rule about eating dropped food.

Clarkson claims the requirement in state law that a judge be named in 45 days is not to be taken seriously.

“There are numerous other areas in statute where timelines or actions are considered more of a guideline than a mandate,” Clarkson said. This is not one of those areas.

The law says, “The governor shall fill a vacancy or appoint a successor to fill an impending vacancy in the office of superior court judge within 45 days after receiving nominations from the judicial council, by appointing one of two or more persons nominated by the council for each actual or impending vacancy.”

It’s not a suggestion. I’m surprised that a state lawyer would commit an argument that dumb to a document.

Clarkson said the refusal by the governor was a “procedural violation” that doesn’t really matter because Dunleavy eventually appointed a judge.

The problem with Clarkson’s summary of this incident is that he fails to quote the letter Dunleavy wrote March 20 in which he said he had declined to follow the Constitution and pick a judge from the list. He said, “I will not be selecting a second candidate from this truncated list.”

A Dunleavy press release said he “declined” to follow the Constitution and appoint a judge from the list given him by the Judicial Council. Dunleavy and Tuckerman Babcock, his chief of staff, wanted more names to choose from.

Why did Clarkson fail to mention the full circumstances in his opinion? Only because doing so would show that he has nothing to stand on.

Dunleavy appointed a judge when it became clear to him that judicial council and the courts were not going to succumb to his pressure tactics, but that doesn’t erase the anti-constitutional declarations.

The extraordinary claim by the governor last March that he would refuse to follow the law was followed by an extraordinary statement from the chief justice of the Alaska Supreme Court.

Two days after Dunleavy’s announcement, Chief Justice Joel Bolger spoke to the Judicial Council about Dunleavy’s letter and another letter from Babcock.

“In the first letter, the governor refuses to appoint a judge from the nominees we provided for the Palmer Superior Court position. The governor suggests that the council should nominate all qualified candidates for the position and provide the reasoning supporting the nominations. In the second letter we received, the governor’s chief of staff requests access to the confidential information the council solicited during the nomination process,” Bolger said.

“I believe the governor’s office does not understand the constitutional requirements for these nominations,” Bolger said.

All of this information belongs in any impartial analysis.

“The governor’s substantive duty under the Alaska Constitution is to fill a vacancy, not to make an appointment within a specific timeframe,” Clarkson writes.

Yes, and Dunleavy said on March 20 that he would not perform that “substantive duty.”

This is certainly grounds for Alaska voters to be able to collect signatures to decide if a recall vote is warranted.

There are other problems with Clarkson’s Dunleavy defense. One of them is that Clarkson fails to convey the truth in a claim about the governor’s decision to punish the court system for an abortion ruling that Dunleavy didn’t like. This is not about the governor being able to veto whatever he wants.

It’s about the governor announcing why he cut $334,700 from the court system: “The Legislative and Executive Branch are opposed to State funded elective abortions; the only branch of government that insists on State funded elective abortions is the Supreme Court. The annual cost of elective abortions is reflected by this reduction.”

What happened Monday was that Clarkson, a political operative, tried to protect his boss from a process guaranteed in the Constitution, while dressing up a glorified Dunleavy press release as impartial analysis.

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Dermot Cole6 Comments