A day after temporarily halting the recall campaign against Gov. Mike Dunleavy, Anchorage Superior Court Judge Eric Aarseth reversed himself.
In an order issued Wednesday, Aarseth said “the court inadvertently issued an order” on Tuesday that paused a ruling he made Jan. 10 requiring the Alaska Division of Elections to distribute signature booklets to Recall Dunleavy, a group seeking to remove the governor from office.
In a series of posts on Twitter, the Alaska Court System said Aarseth was “out of town on a urgent family issue” on Tuesday and by telephone approved speedy consideration of the motion for the pause, formally known as a “stay.”
“The motion for stay pending expedited appeal was inadvertently granted as well,” the court system wrote. “To correct the error, Judge Aarseth issued an order vacating the order granting the stay.”
Aarseth had said he was unlikely to pause his ruling while supporters of the governor appealed his decision to the Alaska Supreme Court, which made Tuesday’s announcement a surprise.
Until the Twitter post Wednesday afternoon, the court system had declined to answer questions about the mistake and how it came about.
Stand Tall With Mike, the pro-Dunleavy group that asked Aarseth to pause his Jan. 10 decision, said it was still processing Wednesday’s news. The group has until Thursday to issue its final arguments in favor of a pause. After those arguments, Aarseth can make a final decision on whether his decision should remain on hold until the Alaska Supreme Court considers the issue.
Recall Dunleavy campaign manager Claire Pywell said in a written statement that her group is “gratified that Judge Aarseth promptly recognized and corrected this administrative mistake.”
Under normal procedures, someone requesting a judge to pause his decision will submit arguments alongside a draft order approving the stay. That draft is set aside until the opposing side is given a chance to respond and argue against a delay. They can write their own draft order rejecting the stay.
If they do respond, the side asking for the pause is given one final chance to argue their case. After that, the judge determines whether to accept or reject the arguments.
It is possible in emergencies for a judge to issue a ruling without waiting for a reply from the opposing side. This happens in domestic violence cases when a judge grants a temporary restraining order, but several attorneys and a former superior court judge said that would be extraordinarily unusual here.
Maria Bahr, an assistant attorney general with the Alaska Department of Law, said, “The judge has simply backed up slightly in order to get the process correct, considering the sponsor’s opposition and the reply that he has asked Stand Tall With Mike to file,” she wrote by email. “We anticipate that the judge will then rule on the stay having considered all parties’ arguments.”
Scott Kendall, an attorney for Recall Dunleavy, commended Aarseth for recognizing his error.
“Judge Aarseth is clearly a very solid and careful jurist. We appreciate that he recognized this inadvertent mistake and promptly corrected it in order to remove any doubts about the status of the case,” he wrote by email. “Absent further action, there is no stay of his decision and recall petitions must be available no later than Feb. 10.”
Bahr said the Division of Elections has not yet begun printing signature booklets, but if Aarseth confirms his decision to proceed without a pause, printing will begin.
Aarseth’s Jan. 10 ruling is expected to be appealed to the Alaska Supreme Court, but the case has not yet reached that court, and no schedule has been set.
If signature-gathering takes place, Recall Dunleavy is required to collect the signatures of at least 71,252 registered voters to force a special election.