Editor’s note: This story has been updated to include Judge Erin Marston’s decision, included at the end of this article.
After the dust settled and lawyers had made their oral arguments Monday in Aderhold et al. v. City of Homer, the lawsuit filed by three Homer City Council members seeking to stop a June 13 recall election against them, Judge Erin Marston faced a key question. Should Alaska’s recall statute be “liberally construed”?
In a decision released Tuesday afternoon, Marston said “yes.” He rejected a motion by council members Donna Aderhold, David Lewis and Catriona Reynolds seeking to stop the recall election. That means the election will proceed as scheduled.
“We are very pleased with Judge Marston’s ruling that the Plaintiff’s motion for declaratory and injunctive relief is denied,” said Sarah Vance, a spokesperson for Heartbeat of Homer, the group backing the recall. “It is our goal that every voter in Homer have an equal voice at the ballot box regarding the recall Special Election set for June 13th.”
The American Civil Liberties Union Alaska had supported Aderhold, Lewis and Reynolds in the lawsuit, with ACLU Alaska attorney Eric Glatt arguing in Anchorage Court on Monday on their behalf.
“Obviously we’re disappointed by and strongly disagree with Judge Marston’s opinion,” said Joshua A. Decker, executive director of ACLU Alaska. “The ACLU of Alaska fights for free speech rights whenever we see them being infringed upon by the government, and we certainly believe that was evident here.”
Decker said he was reviewing the opinion and consulting with ACLU Alaska’s clients as to how to proceed. On Wednesday, ACLU Alaska spokesperson Casey Reynolds said the ACLU and the plaintiffs were still reviewing the decision and options and would have a decision by Thursday.
Appeal would be to the Alaska Supreme Court, and the plaintiffs could ask for either a stay of the election or an expedited ruling.
“I am disappointed and think that somehow in the midst of the legal jargon the essence of the argument became lost or confusing to the judge,” said council member Catriona Reynolds. “I still believe that council members need to represent the community by staying true to their own values; that is why the people who voted for them elected them.”
Aderhold, Lewis and Reynolds alleged that the recall petition as stated violated their constitutional rights to free speech. The recall came about after the three sponsored Resolution 17-019, what they called an “inclusivity” resolution and recall proponents said was a “sanctuary city” resolution. That resolution failed 5-1, with Reynolds voting yes.
The recall petitioners made these claims:
• 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 also refer to Resolution 16-121, a resolution supporting the Standing Rock tribe in North Dakota. The Standing Rock resolution passed 3-3, with Mayor Bryan Zak breaking a tie vote by Aderhold, Lewis and Reynolds in favor. Zak was not named in the recall petition.
The Homer News listened in telephonically to oral arguments at the Anchorage Courthouse on Monday. ACLU Alaska attorney Eric Glatt asserted that Alaska’s recall statute are not absolute, and that elected officials only can be recalled for cause — misconduct in office, incompetence or failure to perform prescribed duties.
“It’s important to remember in Alaska elected officials cannot be recalled for political disagreement, but can be subject to recall for cause,” Glatt said.
If the court applied overly liberal standards for certifying a recall petition, that would in effect rewrite Alaska law to allow recall for ordinary political disagreement, he said.
Glatt also asserted that if “impartiality,” as the recall petitioners allege, means showing views on a controversial issue, that leads to a logical contradiction.
“Impartiality cannot mean voting one way or another on a controversial issue,” Glatt said. “That would mean people who voted against the resolution violated impartiality.”
Aderhold et al. also asserted that by letting the recall election proceed, the city violated their rights to free speech.
“The free speech rights of elected officials do not disappear when they take office,” Glatt said. “This is when their rights are highest, because they have an obligation to speak freely.”
In the Alaska and U.S. Constitutions, it is government interference with free speech that is prohibited. Glatt said the holding of an election is a state action and thus government curtailment of free speech.
Eric Sanders, arguing for the city, said a distinction should be made. By certifying the petition and holding the election, the city isn’t acting as the state in curtailing free speech. It is the private citizens in the recall group attempting to prohibit free speech.
“Politicians can’t wrap themselves in the First Amendment and say and do what they want and there’s nothing you can do about it until the next election,” Sanders said. “That’s why we have the recall process.”
In a phone interview on Wednesday and in oral arguments, Sanders made clear that beyond arguing that the recall election should be held, the city takes no stand for or against the question of if the council members should be recalled.
“We are not taking a position on how the voters should cast their votes. We do believe the citizens of Homer should be allowed to vote,” Sanders said.
Sanders argued that the city acted in an administrative capacity. Given that many Alaska cities or towns have limited legal resources, it’s not up to clerks to make legal decisions as to the merits of a recall allegation, he said. In Homer’s case, although City Clerk Jo Johnson signed off on certifying the petition, she did so in close consultation with City Attorney Holly Wells.
In certifying recall petitions, the clerk should only make judgments on issues such as if the allegations are stated “with particularity” and have sufficient signatures from registered voters, Sanders said. No one in the case argued that these minimal standards were not met.
Referring to an Alaska Supreme Court decision on recall, Meiners v. Bering Strait School District, Sanders said, “The court has said the clerk’s job is not to be a trier of fact. That’s the voter’s job.”
Sanders noted Johnson did reject one allegation in the recall petition, that the council members violated city code prohibiting political activity as a council member. Since the council members did not take a stand on candidates or a proposition in an election, as city code defines political activity, Johnson rejected that allegation.
Heartbeat of Homer had filed for and was granted intervenor status. Its lawyer, Stacy Stone, also spoke at Monday’s hearing. She reiterated Sanders’ position.
“It’s not the job of the clerk or the court to determine the truth or falsity of the allegations,” Stone said. “This decision should go forward to the voters to express their will and intent.”
Vance of Heartbeat for Homer agreed with that point.
“They (the plaintiffs) claim their rights to free speech have been violated by the certification of the recall. The recall process is not a governmental action restricting free speech, but the will of the voters in selecting who can adequately and ethically represent their interests,” she said.
In the end, Marston agreed with the arguments of Sanders and Stone and that citizens had a right to recall elected officials.
“This right cannot be hampered in cases when a legally sufficient petition for recall is brought, whether explicitly or implicitly, as reprisal against politically unpopular speech by publicly elected officials,” Marston wrote.
Marston also agreed the recall election was not a state act. Plaintiffs cannot use freedom of expression claims as a shield against procedurally proper political action, he also wrote.
“To conclude that anytime a recall petition is based in part or in whole on what a politician said is protected by the First Amendment would be to eviscerate the recall statute to such an extend that the populace would almost never be able to seek recall of any of their elected officials,” he wrote.
Catriona Reynolds challenged the idea that council members must bend to the popular will.
“Those baying for recall are incorrect when they state that each individual council member has to vote in a way that reflects the winning votes at the last election,” she said. “That’s how we have a balanced council that comes as close as possible to giving all members of the city representation of their objectives and values.”
Michael Armstrong can be reached at email@example.com.
Here is Judge Marston’s written decision:
IN THE SUPERlORCOURTFOR THE STATE OF ALASKA
THIRD J UDICIAL DISTRICT AT ANCHORAGE
) DONNA ADERHOLD, DAVID ) LEWIS, and CATRIONA REYNOLDS, )
CITY OF HOMER, )
HEARTBEAT OF HOMER, )
) Case No. 3AN-17-06227 CI
ORDER DENYING MOTION FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF
Before this Court is the issue of whether the City of Homer Clerk properly certified petitions for the recall of three Homer City Council members.
Plaintiffs are sitting members of the Homer City Council subject to recall petitions due to their role in the preparation of two resolutions, 16-121 and 17-019. In November
201 6, Mr. Lewis introduced Resolution 16-1 21, which Ms. Aderhold and Ms. Reynolds voted in support of and the City Council eventually adopted. This resolution expressed support of the Standing Rock Sioux Tribe and opposition to the construction of the Dakota Access Pipeline. In February of 2017, Plaintiffs co-sponsored Resolution 17-019. A draft of this resolution was spread on social media and local news sites. The draft expressed support for undocumented immigra nts and other communities in the wake of the inauguration of President Donald Trump. This draft also noted Donald Trump’s lack of a “popular ma ndate” and resolved to ”resist any and all efforts to profile undocumented immigrants or any other vu lnerable population.”‘ The revised draft submitted to the City Council removed explicit references to President Donald Trump and removed the expl i cit reference to “undocumented immigrants” in the clause noted above. This resolution was not adopted.
Shortly after Resolution 17-019 was presented to the City Council, an application for petitions for the recall of all three plaintiffs was filed. This application made three allegations: first, that thei r sponsoring of these resolutions viol ated Homer City Code by engaging in political activity; second, that petitioners are unfit because they violated the oath of office; and third, that they committed misconduct by spreading a draft of Resolution 17-019 and caused irreparable economic harm to the city of Homer. The City of Homer Clerk made technical corrections to the petitions, found that two of the three allegations were legally sufficient (striking the first allegation), and certi fied the petitions, preparing a separate petition for each of the three Plaintiffs. A special election on these petitions is schedu l ed for June 13 of2017. This suit was filed by Plaintiffs against the City of Homer, seeking injunctive relief. Heartbeat of Homer, a group organized to support the recall petiti ons, intervened as a party.
THE PARTIES’ POSITIONS
Plaintiffs contend that the recall petitions were insufficient and should not have been certified. They claim that both assertions relate to their use of speech, do not constitute misconduct under the law, and are protected under the First Amendment to the U.S. Constitution, as weU as Article I, section 5 of the Alaska Constitution. Both Defendant and Intervenor a rgue that the petitions were in fact properly certified. They argue that th e recall process is not “state action” that might be barred under the U.S. or Alaska constitutions, because it was initiated through the petition process and not by the City of Homer. Additiona1ly, they claim the recall petitions a re legally sufficient even if analyzed as state action.
The right to seek recall of public officials is based in Article XI, Section 8 of the Alaska Constitution and AS 29.26.250. [2 The City of Homer fully incorporates and adopts the state recall statutes in Homer City Code 188.8.131.52 ] Recall must be “for cause.” AS 29.26.250 provides th e grounds for recall include misconduct in office, incompetence, or failure to perform prescribed duties. The grounds for recall have to be “stated with particularity” insuring that “the office holder has a fair opportunity to defend his conduct in a rebuttallimited to 200 words.”3 [3 Meiners v. Bering Strait School District, 687 P2d 287, 302 (Alaska I984).]
The role of the city clerk is to determine whether grounds havebeen stated with particularity so that the officials subject to recall can defend themselves before the voters.4[4 AS 29.26.290. s Meiners at 302]. The voters determine whether or not the grounds for reca ll have been satisfied or not.
In reviewing the certification of a recall election, the Alaska Supreme Court has held that the statutes rel ting to recall should be liberally construed so that the people are permitted to vote and ex press their wi l l. Courts are warned not to create “artificial technical hurdles created by the judiciary.”5 The court, in reviewing a reca ll certification, must accept all allegations as true.
Plaintiffs attack the clerk ‘s certification of the petiti ons for recall on a number of grounds. First, they all ege the grounds for recall are legally insufficient. They claim the petitions a llege disagreements on questions of policy which is not a sufficient basis for recall as it is not for cause. They further argue that misconduct should be equated with a violation of the law.
While it is true that ”misconduct in office” is not defined in the statute, to require misconduct in of1ice to be criminal would be to undermine the intent and effectiveness of the recall statutes. The statute provides the electorate with the ability to recall elected officials for cause, requiring “misconduct in office” to be criminal conduct overly limits the statute a nd would den y the voters’ right to effectivel y seek recall of their elected officials. It would also not be a “liberal construction” of the statute.
The certification of the recall petitions in this case stated with particularity claims of misconduct. The plaintiffs were given an opportunity to respond with particularity and did so be preparing 200 word rebuttals as allowed by the statute. The petitions state the plaintiffs violated their oath of office by failing to perform their duties impartially and the members were unfit for office because they vi ol a ted their oath. Plaintiffs note that there was no definition of “impartiaJ.” However, the clerk identified the issue and adopted a reasonable definition. It is not the role of the court to second guess the clerk’s reasonable in terpretation. The Supreme Court has instructed courts to not review recall petitions in such a strict manner that petitioners would have no practical chance of quali fying for the ballot without the detailed advice of a l awyer. To do so would negate the recall process for citizens of small communities and school districts in rural Alaska.6[6 /d. at 295.]
The petitions also claimed misconduct in office by the plaintiffs’ actions in circulating a draft resolution, Resolution 17-019, and circulating the proposed resolution as if it was drafted by and was representing th e City of Homer, in breach ofHCC l.l8.03(h). Plaintiffs argue that circulation of draft l egislation is appropriate and required by their positions. However, it is not the circulation of the drafts that is the issue, but rather the representations that the proposed legislation was endorsed by the City of Homer.
Plaintiffs also argue the petitions reference “unfitness” and unfitness is not a grounds to recall a municipal official. However, this interpretation ignores the language of the recall as a whole as well as the intent of the petitions. ”Unfit” versus “committed m isconduct in office” is not decisive here. Misconduct is referenced in the recall petitions. To reject the petitions for this small distinction would be to ignore the Supreme Court’s direction to liberally construe the statute and not to create “artificial pleading barriers.” Here, there was an alleged breach of a legal obligation imposed on an elected official. The petitions sufficiently alleged the breach.
Plaintiffs claim the certification of these recall petitions is an impermissible restriction on thei r Constitutional guarantees of freedom of expression. Defendant and Intervenor argue that certification of the petitions does not constitute state action for First Amendment purposes. Al ternatively, they argue that these protections do not protect Plaintiffs from the regular functioning of the politi cal process.
Ultimately, since the City of Homer is certifying the petitions and holding the election, it may be state action, but that does not automatically mean it is the state suppressing speech. Here the City of Homer Clerk is administratively doing what she was legally required to do by the recall sta tutes. Even if the clerk’s limited administrative actions were state action. it still doesn ‘t protect elected officials from the process. The City of Homer is correct in that if a response to a politician ‘s public speech comes through procedurally proper political action, it does not implicate the First Amendment.
To the extent th at the City of Homer engaged in state action by certifying these petitions for legal sufficiency and orga nizing a special election, the actions were ministerial in nature. The City of Homer Clerk is legally required to certify legally sufficient petitions.7[7 AS 29.26.290.] The Alaska Constitution provides that all publicly elected offici als are subject to recall. This right cannot be hampered in cases when a lega lly sufficient petition for recall is brought, whether explicitly or implicitly, as reprisal against politically unpopular speech by publicly elected officials. The First Amendment does not “succor casualties of the regular functioning of the political process,” and so Plaintiffs may not use freedom of expression claims as a shield against proceduraly proper political action.8 [8 Blair v. Bethel School District, 608 F.3d 540, 545 (9th Cir. 20 I 0).]
These are not recall petitions drafted by the City of Homer; they were prepared and filed by private citizens exercising their rights under AS 29.26.250. First Amendment protections against abridgement of speech by the federal or state government do not apply to actions by private citizens. 9 [9 Johnson v. Tair , 774 P.2d 185, 190 (A laska 1989).] The City of Homer did nothing to suppress speech.
To conclude that anytime a recall petition is based in part or in whole on what a politician said is protected by the First Amendment would be to eviscerate the recall statute to such an extent that t e popu ace would al ost never be able to seek recall of any of their elected officia ls. It is not what the Alaska Constitution and statutes contemplated and it is an unreasonable in terpretation of the law. The recall statutes contemplate a political process initiated by the voters. Elected officials cannot exempt themsel ves from the process by clajming First Amendment protections.
The reca ll petitions at issue are legally sufficient. Accordingly, the Homer City Clerk properly scheduled a special election on Ju ne 13, 2017, submitting the question of recall to the voters. Plaintiffs’ Motion for Declaratory Judgm ent a nd Injunction Relief is denied.
Dated at Anchorage, A laska th is 23 day of May 2017.
Erin B. Marston
Superior Court Judge