On January 25, 2021, Superior Court Judge Dani Crosby delivered a blow to Alaska progressives when she ruled that the recall campaign against Anchorage Assemblymember Felix Rivera was lawful and could move forward. The Rivera recall campaign was a direct and foreseeable result of the Recall Dunleavy campaign that was launched against Alaska Governor Mike Dunleavy (R – Alaska) in the summer of 2019.
The old karmic saying “you reap what you sow” is often true in politics. It means you should treat others as you wish to be treated because, someday, the others will be in a position to treat you the same way. Politicians are increasingly throwing this old wisdom to the wind. Then-Majority Leader Harry Reid ignored it in 2013, when he abolished the filibuster for judicial nominations for nominees to the U.S. Court of Appeals. He was warned up and down that abolition of the filibuster for nominees to the Court of Appeals would mean Republicans would abolish it for Supreme Court nominees. And that is exactly what they did. In 2016, Democrats helplessly watched as Republicans, who had retaken the U.S. Senate and Oval Office, used the Democrats’ precedent to end the filibuster for judicial nominations to the U.S. Supreme Court.
In February, the editorial board of the Anchorage Daily News wrote that the legal grounds cited by both recalls (Recall Rivera and Recall Dunleavy) were obviously not the true motivations of those advocating for them. That is undeniably true. In October of 2019 I published an opinion piece saying the same thing. To take just one example, Rivera is, in theory, facing a recall because he allowed seventeen people in the Assembly chambers despite a Covid-related EO limiting room occupancy to fifteen. It is lost on nobody that Rivera’s alleged violation is–at most–extraordinarily unimportant, and that the recall is overwhelmingly led and supported by people who opposed Covid restrictions in the first place.
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One part of Judge Crosby’s recent ruling stands out: why didn’t she cite or even mention the Alaska Supreme Court’s Order affirming that the recall campaign against the governor could proceed? It’s the most recent precedent for the legality of a recall and was cited in the briefing to the court.
The Alaska Supreme Court has only weighed in on the legal grounds for recall under the Alaska Constitution on three occasions:
- Meiners v. Bering Strait School District (1984)
- Von Stauffenberg v. Committee For an Honest and Ethical School Board (1995)
- State of Alaska v. Recall Dunleavy (2020).
Superior court decisions in civil cases, including civil cases involving the legality of recall petitions, are governed by the law and decisions by the Alaska Supreme Court. In the legal world, Alaska Supreme Court decisions are “binding precedent,” meaning that superior courts must follow those decisions and are not free to disregard them.
The Alaska Supreme Court issued a brief order following briefing and argument on the legality of the petition to recall Governor Mike Dunleavy. This is typical. But, that brief order confirmed that the Court was upholding the superior court’s ruling that three out of the four grounds pushed by Recall Dunleavy were independently sufficient to institute a recall campaign. (The sole ground struck down by the superior court was Recall Dunleavy’s assertion that the governor’s line-item budget vetoes violated the separation of powers doctrine by precluding “the legislature from upholding its constitutional Health, Education and Welfare responsibilities.” The Alaska Supreme Court affirmed in its order that it was upholding all the superior court’s rulings).
So why didn’t Judge Crosby cite the Alaska Supreme Court’s most recent precedent in deciding the legality of the recall petition for Felix Rivera, despite it being cited to the Court and the Alaska Supreme Court clarifying precisely the grounds for recall it affirmed on appeal? The answer to that question depends on who you ask. But it is puzzling she did not once mention it, especially considering how recent it was and how much it related to the recall against Rivera.
The recall against Rivera is a predictable result of the Recall Dunleavy effort, which set a precedent for using the recall process to attack a political enemy. More broadly, it is a consequence of the ‘win at any cost’ mentality that now dominates American politics. It’s unlikely that Rivera would be facing a recall if Recall Dunleavy had not launched a statewide recall initiative and pursued it all the way to the Alaska Supreme Court. Recall attempts have also been made against Assemblymember Forrest Dunbar and Assemblymember Jamie Allard. More are sure to come in Anchorage and around the state. Think of the effect this will have on an already broken political process. Now, in addition to dealing with all of the challenges of being an elected official, getting recalled on dubious–if not patently absurd–grounds is now a realistic possibility for anyone and at all times. The proponents of Recall Dunleavy are reaping what they have sowed, and it’s just getting started.