Oral arguments were heard Jan. 21 in Anchorage Superior Court over whether an effort to recall Anchorage Assembly Chair Felix Rivera is valid and should proceed to a vote of the people. He is set for a recall vote at the April 6 election for failure to carry out his duties as Assembly chair.

Much of the 40-minute telephonic oral argument centered on two issues. Was there, in fact, more than 15 people allowed into the Aug. 11, 2020 Anchorage Assembly meeting – which would have violated the city’s emergency order limiting meetings to 15 people or less? Secondly, did Rivera have a duty to remove the excess people to bring the meeting into compliance with the order, or could he exercise discretion when it came to following the letter of the law?

Arguing in support of Rivera, Keri-Ann Baker tried to convince Judge Dani Crosby that it was debatable as to how many people were actually at the Aug. 11 Assembly meeting. Secondly, Baker claimed it was unclear whether Rivera had discretion to ignore a minor violation of the law in order to run a smooth Assembly meeting.

Baker claimed the court should be able to make a determination on whether the claims of the recall are in fact true.

Baker noted that the municipal attorney said there were only 15 people in the room, but that Assemblywoman Jamie Allard told Rivera moments later that there were actually 17 people. Baker claimed the court should be able to make a determination on whether the claims of the recall are in fact true. Even if there were more than 15 people in the room, she said Rivera had a great deal of discretion to decide what to do in such instances and that a recall should not be granted for such a minor infraction.

Judge Crosby seemed to disagree with Baker’s claim that she had the authority to decide whether Rivera had discretion in terms of following the law. That should be something delineated in the law, Crosby suggested, and not something for her to rule on. If he had discretion to suspend a law, that seems like something that should be explicitly stated, she noted.

Judge Crosby also took issue with Baker’s claim that the court should decide the truth of whether there were more than 15 people in the room. Crosby suggested that this, too, seemed like a question for voters to decide through the recall process.

Ultimately, the courts have to err on the side of the voters, Botstein concluded. State law and court precedent don’t give any leeway.

Baker retorted that if that were the case, then voters could recall an official for any reason, regardless of whether the reason was true.

Arguing for the Municipality of Anchorage, Ruth Botstein took issue with Baker’s claim.

If it could be clearly shown that a recall petition was based on false information that would be different, Botstein said. In this case, the facts are merely disputed.

In such instances, Botstein argued that the court must accept the allegations as true, because the video evidence from the meeting does not resolve the disagreement. It is not the court’s role to rule on a disputed and unresolvable factual matter with regards to recall petitions, she maintained.

Furthermore, she said the court should also accept the recall’s assertion that Rivera knew there were more than 15 people in the room. Whether he did or didn’t is not up for the court to decide, she argued.

Ultimately, the courts have to err on the side of the voters, Botstein concluded. State law and court precedent don’t give leeway to do otherwise. Bostiene noted that the city acted in accord with both state and city law in certifying the recall petition. That doesn’t mean the city agrees with the petition, but that doesn’t matter, she said.

The city’s job is to follow state law as passed by the Legislature, which is what they did, she maintained.

Crosby said she will provide a decision on the matter no later than Monday, Jan. 25.

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