Judge gives win to Legislature again, says governor can’t sue over spending dispute

An Anchorage Superior Court judge has thrown out a case brought by the Alaska Attorney General against the Legislature.

Judge Herman Walker granted a summary judgment to the Legislative Affairs Agency, saying Attorney General Treg Taylor’s suit is prohibited by Article III, Section 16 of the Alaska Constitution, because it was clear to the judge the governor was the one who was suing. Therefore Walker disposed of all claims in this case, saying it was unnecessary for him to hear the suit’s merits.

Article III, Section 16 reads: “The governor shall be responsible for the faithful execution of the laws. He may, by appropriate court action or proceeding brought in the name of the State, enforce compliance with any constitutional or legislative mandate, or restrain violation of any constitutional or legislative power, duty, or right by any officer, department, or agency of the State or any of its political subdivisions. This authority shall not be construed to authorize any action or proceeding against the legislature.”

Walker wrote: “The Court also concludes that although Attorney General Taylor has the common-law power to bring suits to enforce compliance with Alaska statutes, his pleadings and the public statements of Governor Dunleavy and himself indicate that the present suit is in reality an action brought ‘in the name of the state” and against the legislature,’ and is prohibited by Section 16 of Article III of the Alaska Constitution.”

Walker’s decision leaned on statements the attorney general and governor had made in a press release, when they said the dispute over the matter needed to be resolved by a third branch of government. This was proof that it was the governor suing the LAA, rather than the Attorney General himself, the judge reasoned. He was not convinced that Taylor had brought the suit on his own.

BACKGROUND

Attorney General Taylor had asked the Alaska Superior Court in June to clarify whether, despite a failed effective date in the 2022 state budget, a governor can spend money to keep state services going starting July 1, which is the beginning of the new fiscal year.

The Legislature had failed to amend the effective date on the budget, which means it would not go into effect until 90 days after it is signed; this could have meant sometime in September and could have led to a partial government shutdown this summer. The Legislature was later successful in passing the effective date and the matter resolved itself.

“When there is a dispute between branches of government, we need the courts to step in,” said Taylor in a press release on June 21. “The executive and legislative branches need clarity now from the courts as to whether the governor can, if the bill is enacted, spend money immediately despite HB 69 not taking effect until 90 days after enactment.”

Article II, section 18 of the Alaska Constitution provides that, unless agreed to by two-thirds of each house, a law passed by the legislature becomes effective ninety days after enactment.  The legislature failed to pass a separate effective date with HB 69.  The Constitution’s plain language states that the bill, and therefore provisions within the bill, do not go into effect until ninety days after the bill’s passage. This includes any retroactivity provision within the bill. Despite the clear constitutional language, the Legislative Affairs Agency has sent notice to legislators and legislative staff that the position of the Legislature is that a functional budget was passed and the government can continue to function as normal beginning July 1, 2021.

Taylor said that as Alaska’s attorney general, he has the obligation to defend the Constitution. Statutes and common law provide him the authority to bring cases in the public interest. Ensuring that state funds are expended in accordance with the constitution falls within the Attorney General’s authority.

“I agree with the Attorney General’s decision to petition the court on this important matter,” said Gov. Mike Dunleavy. “We need the third branch of government to step in and resolve this dispute to ensure we all carry out our constitutional duties appropriately.  I will not ignore the constitution. I, along with my legal team, believe the Legislature should not ignore the constitution. The Attorney General’s actions are consistent with my goal of doing everything possible to avoid a government shutdown.”

Those statements made it clear to the judge that it was Dunleavy, not Taylor acting on his own, who was bringing the lawsuit.