Written by William D. Falsey
The Alaska Constitution provides that “all elected public officials in the State, except judicial officers, are subject to recall” on “grounds . . . prescribed by the legislature.” Alaska Const. art. XI, section 8.
For local officials, the “grounds” for recall were established by the legislature in 1972 and today remain: “misconduct in office, incompetence, or failure to perform prescribed duties.”
Practically, to recall a public official in Alaska, recall sponsors must file an application with their local municipal clerk. In 200 words or less, the application must state the grounds for recall “with particularity.”
Alaska’s Supreme Court has noted that Alaska’s “for-cause recall process” follows “ ‘a middle ground’ between states that treat recall as ‘special, extraordinary, and unusual’ and construe grounds narrowly in favor of the office holder, and states that treat recall as ‘essentially a political process’ and construe ‘all doubts . . . in favor of placing the question before the voters.’ ”
But what constitutes “misconduct in office”?
Alaska’s statutes don’t define the term.
In Anchorage, the Municipal Clerk in 2020 rejected a recall application after the municipal Department of Law, referencing a Black’s Law Dictionary definition of “official misconduct” advised that “misconduct” requires a “corrupt” motive.
Alaska’s courts disagreed. Last week, the Alaska Supreme Court affirmed that Alaska’s “recall statutes are to be construed liberally,” such that an allegation that an assembly member participated in an assembly meeting in knowing violation of municipal law – even without a “corrupt” motive – is enough.
The Court noted that it has never defined “misconduct in office” for purposes of the recall statute, and it did not attempt to provide one in the recent case. But the Court concluded that requiring “a criminal degree of intent” goes too far—improperly “wrapp[ing] the recall process . . . in a tight legal straightjacket,” and at odds with permitting “the people . . . to vote and express their will.”