ATTEMPTS TO REMOVE CONSTITUTIONAL AUTHORITY
The ACLU today made the argument that the Alaska Supreme Court should override the governor’s constitutional authority to a line-item veto.
In a case that involves the separation of powers and one half percent of the Court System’s operating budget, Stephen Koteff, lawyer for the ACLU, told Judge Jennifer Henderson that the governor abused his constitutional authority and undermined the public confidence in the court when, on June 28, he made his veto decisions.
Dunleavy’s veto was not overridden by the Legislature, which is generally the way the political system works. Politics is, after all, much about dividing up tax receipts and assigning value to different programs.
“Show me your budget, and I’ll tell you what you value,” is a well-known political adage, often attributed to Joe Biden.
In his budget explanation, Dunleavy expressed his values when he said that some of the court’s money would be used to pay for the Medicaid-funded abortions that the Supreme Court was demanding come from the state treasury.
Jessica Leeah, the lawyer representing the State of Alaska, told the judge that the case is inherently political, and advised against having one judge step into the shoes of the governor and the entire Legislature, and decide whether the $335,000 cut should be restored. After all, the Legislature could have overridden the veto, but didn’t even try.
She asked the court to dismiss the case, and said that if the governor had not provided an explanation of that sort for his budget veto, there would be no lawsuit. There is also no proof that such a small cut had harmed the court, she said; in fact, Chief Justice Joel Bolger had written that the court’s duties would continue on.
“The ultimate arbiter for a governor’s vetoes is the electorate,” Leeah said, asking the judge to exercise judicial restraint.
Chief Justice Bolger was not in the meeting, but figured prominently in the room, as both sides discussed his recent public pronouncements about an independent judiciary, both on the Court System’s home page, and also in remarks he made at Alaska Federation of Natives Convention in Fairbanks.
The ACLU lawyer said that Bolger was clearly stating that the court was facing a great deal of political pressure, but the State’s attorney Leeah said the justice’s statements were general in nature and could have related to the recent vote that went against the retention of Judge Michael Corey, who was guided by legislation known as SB 91 when allowing an offender to walk free after attacking a woman.
Because Bolger’s name was brought up in court, it’s unclear if either side would have the courage to swear him in on the witness stand to explain what he meant, if Judge Henderson allows the case to proceed.
Judge Henderson asked the State’s attorney far more questions than she asked of the ACLU’s lawyer, interrupting Leeah several times. Henderson asked both sides questions about whether the ACLU is the appropriate plaintiff, and if not, whether there is another likely plaintiff who might bring a lawsuit that showed actual damages. The State’s position is that the ACLU is not a qualified plaintiff because it has not been harmed, while the ACLU says the veto represented an “unprecedented threat to the judiciary,” and that Dunleavy was retaliating against the courts over abortion, thus there are constitutional issues.
Not brought up by either side was the question of whether a governor has a right to free speech and expressing his views on court decisions. If, in budget notes, a governor may not express his political opinion, will the court open itself up to a lawsuit from the governor himself based on First Amendment rights? Such an outcome could mean this matter could end up in a federal court.
The ACLU and Planned Parenthood were well represented in the courtroom. Oddly, Vic Fischer, who was one of the authors of the Alaska Constitution, had been positioned by the ACLU in the front row, to give the plaintiff’s argument extra moral edge and give the judge a good view of the nonagenarian (he is 95-1/2).
On the other side, only a handful of pro-Life advocates showed up. Judge Henderson did not say when she will make her decision on the case, but it’s sure that the matter will be referred to the Alaska Supreme Court, where Justice Bolger will no-doubt assign it to one of his fellow judges.