Judge hears arguments in lawsuit aiming to halt recall of Anchorage Assembly member Rivera

A Superior Court judge on Thursday heard arguments in a lawsuit challenging a petition to recall Anchorage Assembly chair Felix Rivera, brought by a group of citizens who say the petition shouldn’t have been granted.

Judge Dani Crosby said that she will make a ruling on Monday at the latest. The petition must go before the Assembly to be approved for the April ballot at its next meeting on Tuesday.

The petition has garnered enough signatures to be placed on a ballot and was certified by the city clerk last week. The lawsuit challenging the petition is against the Municipality of Anchorage and its clerk, Barbara Jones, for approving the petition. It was filed by Anchorage resident Peter Mjos and a group calling themselves the Midtown Citizens Coalition.

Rivera represents Anchorage District 4, which includes Midtown.

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The clerk approved the petition on the assertion that Rivera failed to perform his prescribed duties as chair during an August Assembly meeting. The petition states that that Rivera did not stop the meeting after another Assembly member told him it may have exceeded the capacity restrictions required by Emergency Order 15, which limited gatherings as a precautionary measure against the coronavirus.

Petition sponsors also claimed that Rivera’s failure to halt the meeting amounted to misconduct in office, but the clerk’s office rejected that assertion when it approved the petition.

Rivera has called the petition “frivolous.” Still, the petition has gained support from a group of residents upset with the Assembly’s recent actions to manage the pandemic, including its support of the acting mayor’s COVID-19 emergency orders and a controversial vote to approve purchasing buildings for homeless and treatment services.

Attorneys arguing both sides of the case agreed that Alaska law and previous cases err on the side of the voters.

“Alaska does take a liberal approach to looking at these petitions. The courts don’t want a bunch of hurdles and hoops that petitioners have to jump through just to get to a recall, and we agree with the city on that,” said attorney Keri-Ann Baker, who argued the case for the group supporting Rivera.

Still, Baker argued that the petitioners failed to show there is a reason for the recall.

“You cannot recall somebody just because you don’t like that they have purchased property to use for a homeless hotel. There must be some sort of basis,” she said.

Baker said that Rivera went to “great lengths” to comply with the emergency order, including restricting the number of people allowed in the chamber and limiting public participation to remote testimony via phone.

Baker argued that as Assembly chair, Rivera had the discretion to run the meeting as he saw fit, and if the emergency order was broken, it happened only briefly. Rivera had also just been told by the municipal attorney that there were only 15 people in the room, the maximum number allowed under the emergency order, Baker said.

The judge questioned several of Baker’s arguments, at one point saying it’s not up to the court to decide what is a serious or trivial failure of duty by an elected official.

”That seems to be something that voters gets to decide — whether it is significant enough for them to vote to recall an official,” Crosby said.

Ruth Botstein, an attorney for the city, said that it is not up to the city attorney, the clerk or the court to judge a petition based on whether the allegations against an elected official are factual, “in spite of the fact that the city agrees that this alleged conduct does seem relatively minor.”

“The certification means only that the municipality was obligated to apply the law,” Botstein said. “... And because of that overarching principle, that in a close case it has to go to the voters, that is what the city did here.”

The city attorney and clerk must accept the allegations as factual when evaluating the petition, she said, even though it’s not clear how many people were in the room based on the video.

During the August meeting, Municipal Attorney Kate Vogel stated that there were only 15 people present in the Assembly chambers. A few minutes later, Assembly Member Jamie Allard commented that there were 17 people in the room, exceeding the city’s capacity requirements. A video of the meeting provided by the Municipality of Anchorage does not show the entirety of the Assembly chambers.

Crosby also said that it is not her position to evaluate the facts of the petition, and as part of the recall process, Rivera gets to provide a statement explaining what happened to voters.

Baker said she disagreed, and that the court should consider the recall’s factual basis.

Other recall petitions have been filed against several Assembly members this year, but the petition against Rivera is the only one that the clerk’s office has approved.