To the surprise of no one, on Nov. 4, Attorney General Kevin Clarkson, who was appointed by and who serves at the pleasure of Gov. Mike Dunleavy, issued a 25-page opinion in which he concluded that the petition requesting that an election be held to recall the governor, which 46,405 Alaska voters signed, is factually and legally inadequate.
Clarkson reasoned to his expected result, first by noting that the recall statute limits the description of the grounds for recall contained in a petition to no more than 200 words (which is 80 words less than a Don Trump tweet), and then, turning on a dime, by concluding that the 200-word description in this petition does not contain enough factual information for him to be able to determine whether Gov. Dunleavy’s actions satisfied the grounds for recall that are listed in the recall statute. The opinion also contains a footnote in which Clarkson lectures that it was perfectly proper for Gov. Dunleavy to have vetoed $334,700 from the court system’s budget because he disliked decisions in which the Alaska Supreme Court interpreted the Alaska Constitution — the same document that, when he assumed office, the governor swore an oath to uphold and defend.
Alaskans can read the opinion and then decide for themselves whether the conclusion regarding the recall petition that Attorney General Clarkson announced therein was the product of fair and impartial factual and legal analysis or whether the opinion is a legal brief written by a lawyer to exonerate a client.
My reading is that the opinion is a legal brief. That’s why Attorney General Clarkson protecting the governor at whose pleasure he serves illustrates that the delegates to the Alaska Constitutional Convention made a mistake when they decided that the attorney general of the state of Alaska would not be an elected official.
During the years Alaska was a territory, the attorney general was an elected official. And during the Alaska Constitutional Convention, Fairbanks delegate Frank Barr offered an amendment when the Alaska Constitution was being written whose passage would have continued that practice by having the attorney general of Alaska “elected at the same time and in the same manner as the governor.”
When he offered his amendment, Delegate Barr argued that if the attorney general was appointed by and served at the pleasure of the governor and the governor “wanted to bulldoze something through” that was “a little bit questionable,” “the attorney general might feel that he was obligated to the governor if he were appointed and his opinion might be biased a little bit.”
“I wouldn’t say he would flout the law,” Barr told the other delegates, “but he could be biased a little bit to either one side or the other. And even if he were entirely honest and tried to render an impartial decision, I’m afraid his conscience would hurt him a little bit because he was obligated to the governor and went against the governor’s wishes, so to remove him from that embarrassing position, I think that he should be elected.”
A majority of the other delegates did not find that argument persuasive, and they rejected Delegate Barr’s amendment by a vote of 40 to 12. So for 60 years, the attorney general of Alaska has been appointed by the governor and has served at the governor’s pleasure.
What has been the consequence?
Had he been an elected official who had his own political career on the line, in 1966, would Attorney General Warren Colver have silently watched Gov. Bill Egan run for a third term, in violation of section 5 of article III of the Alaska Constitution, which provides that “No person who has been elected governor for two full successive terms shall be again eligible to hold that office until one full term has intervened?” In 1980, would Attorney General Avrum Gross have signed off on Gov. Jay Hammond’s flagrantly unconstitutional scheme to calculate the amount of each Alaskan’s Permanent Fund dividend based on the number of years each Alaskan had lived in the state? In 1995, would Attorney General Bruce Botelho have had one legal position regarding tribal sovereignty when he served at Gov. Walter Hickel’s pleasure and the opposite position when he served at Gov. Tony Knowles’s pleasure? And in 2019, would Attorney General Clarkson have so brazenly extracted Gov. Dunleavy’s neck from the noose into which his acts of mis- and malfeasance in office had inserted it?
I did not know Warren Colver and I do not know Kevin Clarkson. But Avrum Gross was a friend of mine, as is Bruce Botelho, both of whom I can vouch were during their tenures as attorney general well-intentioned public servants.
But why did they make the decisions they did, all of which benefited the governor whose favor they each needed to curry in order to remain in office?
The fact that their impartiality regarding those decisions can legitimately be questioned is evidence that during the Alaska Constitutional Convention, Delegate Barr got it right and the delegates who voted down his amendment got it wrong.
If those delegates did get it wrong that is a mistake the Alaska Legislature can correct by putting an amendment to amend the Alaska Constitution to elect the attorney general on the ballot in 2020 in order to let Alaska voters decide for themselves whether, after 60 years of experience with an appointed one, the time has come to elect the attorney general.
It is true that, as Andrew Cuomo in New York and Kamala Harris in California are examples, too many elected attorneys general spend too much of their time in office running for governor or senator. However, as Attorney General Clarkson’s opinion regarding the recall petition well-illustrates, in an imperfect world, there is a reason that in 43 of the 49 other states, as well as in the District of Columbia, voters elect their attorneys general.
Donald Craig Mitchell is an Anchorage attorney, author of the two books on the Alaska Native Claims Settlement Act and “Wampum: How Indian Tribes, the Mafia, and an Inattentive Congress Invented Indian Gaming and Created a $28 Billion Gambling Empire.” He was also a former vice president and general counsel for the Alaska Federation of Natives.
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