In a March 9 memorandum regarding certification of a petition for recall of Homer City Council members Donna Aderhold, David Lewis and Catriona Reynolds, City Attorney Holly Wells warned the council and Mayor Bryan Zak that “issuance of the Recall Petition on the grounds provided by the sponsors exposes the city to constitutional challenges based upon protections afforded speech under the Alaska and United States Constitutions.”
On Monday, that caution came true when the American Civil Liberties Union-Alaska filed a civil suit on behalf of Aderhold, Lewis and Reynolds asserting their free speech rights, and asking the court to find the grounds for recall are legally insufficient and prevent the city from holding the recall election on June 13.
“The city anticipated the recall petition would be vulnerable to challenge given the lack of clarity regarding the state’s statutes regarding recall,” Wells told the city council at its meeting on Monday.
Aderhold, Lewis and Reynolds allege that the recall petition as stated violates their constitutional rights to free speech.
“The problem with a recall like this is it’s going to muzzle public officials,” said Joshua Decker, director of ACLU-Alaska. “That’s why the ACLU is standing up for the voters in Homer: to make sure we have a court say, in Alaska, elected officials like city council members cannot be recalled for office because they’re exercising their right and obligation to speak on the issues of the day.”
Aderhold, Lewis and Reynolds had no comment on the lawsuit, referring questions to Decker.
In an email offering them a chance to provide their viewpoint, recall organizers Michael Fell and Larry Zuccaro also declined to comment. Fell also did not return a phone call seeking comment.
After Monday’s city council meeting, Wells said the city has agreed with the plaintiffs in requesting expedited review. The city still has to print ballots and must issue official notice of the election 20 days in advance. The case has been filed in Anchorage Superior Court with Judge Pamela Washington. Decker said oral arguments will be heard at 9 a.m. May 17 at the Anchorage Courthouse.
“We are moving as quickly as possible to try and get court guidance and direction, and take steps to argue the city’s position, to support and defend the city’s position and the basis for the city’s certification, and do so before the recall election,” Wells told the council.
Wells said that at the next council meeting on May 8, she would meet in executive session with the council members not subject to recall — Shelly Erickson, Heath Smith and Tom Stroozas — to discuss legal strategy and fees. The plaintiffs have filed a constitutional or public interest lawsuit, meaning that if they prevail the city could have to pay their legal fees.
In the April 24 council packet, City Clerk Jo Johnson submitted a memorandum stating the recall election language. It will ask the same question of Aderhold, Lewis and Reynolds: Shall they be recalled from the office of Homer City Council? The sponsor’s statement would be included with two allegations:
• That the three council members are “each proven unfit for public office, as evident by their individual efforts in preparation of Resolution 16-121 and 17-019, the text of which stands in clear and obvious Violation of Oath of Office. Whereas the use of City Council office as a platform for broadcasting political activism is unlawful, unethical and outside the bounds of permissible conduct in public service,” and
• “Misconduct is further claimed by the irreparable damage done by draft Resolution 17-019 being made public and widely distributed on social and news media, and publicly promoted as conspicuously drafted by and representing the city of Homer. This action has further caused economic harm and financial loss to the city of Homer.”
The recall organizers refer to Resolution 16-121, a resolution supporting the Standing Rock tribe in North Dakota, and 17-019, the “inclusivity” resolution that opponents called a “sanctuary city” resolution. The Standing Rock resolution passed 4-3, with Mayor Bryan Zak breaking a tie vote by Aderhold, Lewis and Reynolds in favor. The “inclusivity” resolution failed 5-1, with only Reynolds voting in favor.
In their complaint, written by ACLU officials Decker, Eric Glatt and Tara Rich, Aderhold, Lewis and Reynolds challenge the allegations that they violated their oaths of office and that they “unlawfully” used their office to broadcast political activism.
Aderhold, Lewis and Reynolds argue that the claim not to have acted impartially cannot serve as the basis for recall. “By not acting impartially, Sponsors meant only that Plaintiffs asserted views on national political issues,” they write. “Legislators, however, enjoy constitutional guarantees of freedom of expression. Indeed, it is particularly important for elected representatives to be secure in this right so that the people’s elected representatives may discuss, debate and deliberate with freedom.”
The plaintiffs cite a 1966 U.S. Supreme Court decision, Bond v. Floyd, where the court wrote: “The manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issues of policy.”
The plaintiffs also cite an Alaska Supreme Court case, von Stauffenberg v. Committee for Honest and Ethical School Board, a petition seeking to recall four Haines Borough school board members for misconduct in office. The court found the grounds for recall were legally insufficient and that “elected officials cannot be recalled for legally exercising the discretion granted to them by law.”
The plaintiffs also argue that under Alaska Statutes regarding recall, the “unfit for office” provision does not apply to municipal elected officials, only to the governor, lieutenant governor and members of the state legislature.
The complaint also challenges the allegation that Aderhold, Lewis and Reynolds caused economic damage by publicly promoting the draft “inclusivity” resolution. Even if this conduct cost the city money, “this cannot constitute ‘misconduct’ for the purposes of recall, because Plaintiffs expressions are constitutionally protected,” they argue. “Plaintiffs must be free to draft, publicize and distribute proposed resolutions to the public, however, as part of carrying out their ordinary official duties as local lawmakers.”
When asked about the balance between the citizen right to recall public officials and their right to free speech, Decker said that balance has already been set in the recall statutes. Those allow only three reasons for recall: misconduct in office, incompetence or failure to perform prescribed duties.
“We have regular elections. Candidates and incumbents can be voted in and out of office for any reason at all, but once they’ve been elected, we have made policy for only three specific reasons for cause,” Decker said. “The argument that any city council member can be recalled prematurally for any reason at all is a red herring. That’s not the case in Alaska law.”
Decker noted that while the plaintiffs can recover legal costs if they prevail, the case is not about money.
“The point of the lawsuit is to stand up for the First Amendment and the right of Homer voters to have elected officials honestly speak their minds about important issues of the day.”
Michael Armstrong can be reached at firstname.lastname@example.org.