Judge rules governor has no authority to veto Alaska Court System’s budget



In a decision that critics say guts democracy, Anchorage Superior Court Judge Jennifer Henderson ruled Friday that a veto by Gov. Mike Dunleavy of a small part of the court system’s budget was unconstitutional.

Dunleavy had vetoed $334,700 from the court system in 2019 and again in 2020. He said in his veto explanation that it was equal to the amount that the courts have forced the State of Alaska to pay in Medicaid abortions.

In her decision, the judge noted that after the veto, the Legislature convened in special session but failed to override the veto. Her decision effectively, if it stands, overrides both the governor and the Legislature on money coming to her department.

The American Civil Liberties Union filed the lawsuit on behalf of Bonnie Jack, a political activist from Anchorage.

Henderson, who is up for retention this Nov. 3, addressed the separation of powers issue, but oddly quoted the late Justice Antonin Scalia when he wrote that the separations issue is a “structural safeguard rather than a remedy.” Scalia had been writing on a completely unrelated matter involving past court decisions and whether they should be reopened.

Henderson said the court “that the undisputed facts demonstrate that the governor’s exercise of his veto power to reduce the appellate courts’ budget in fiscal years 2020 and 2021 expressly undermines the Alaska Constitution’s commission of judicial powers to the judiciary, as well as the structural independence of the judiciary, and thus violates the doctrine of separation of powers embodied in the Alaska Constitution.”

Henderson’s interpretation of the law is that the governor can only veto the court system’s budget if Henderson approves of the reason.

There is no limitation on the constitutional authority of the governor’s vetoes in the Alaska Constitution, Article II, Section 15: “The governor may veto bills passed by the Legislature. He may, by veto, strike or reduce items in appropriation bills. He shall return any vetoed bill with a statement of his objection to the house of origin.”

Additionally, Article II Section 16, Action Upon Veto states “Bills to raise revenue and appropriation bills or items, although vetoed, become law via affirmative vote of three fourths of the membership of the Legislature.”

The Alaska constitution specifically discusses how the executive handles vetoes and how the legislature handles vetoes, and the Constitution makes no mention of judicial review or authority over appropriation bills or vetoed items.

Henderson on Friday opened the door for the judiciary to set its own budget and approve its own budget because appropriation power of the Legislature is no more protected than the veto power of the governor.

By her logic, failure to adopt the exact budget request of the Alaska Court System, or even increase taxes to pay for the desires of the Judiciary’s budget, would constitute an unconstitutional effort to influence the Judiciary.

Earlier this year, Henderson interfered in the elections by ordering the Division of Elections to stop printing ballots because candidate Alyse Galvin wanted to be identified in her own way on the ballot, rather than as the Democratic Party’s nominee for U.S. House of Representatives.

Henderson was appointed by Gov. Bill Walker in 2017 and faces her first retention vote.


    • AK,
      A list is just a list. I can give you my list but it’s only my strong opinion, based on personal research, date of original appointment, decisions rendered, number of retentions, if any, and apparent political bias. Again, I may have opinionated against a very few that deserve to be retained. If so, I apologize.
      Crosby–Big No
      Henderson– Big No
      I may have missed a couple or wrongly included a couple but research available to anyone gives credence to my opinions, in my opinion.

    • Yes. Somebody should handle that – a list of Judges who have over-stepped their bounds. Nobody does. I wonder why. (I don’t really. The people who did would end up in court, one way or another, and be crucified there.)

      Just vote them all down always. A little rotation in office would, at least, not leave us with nothing but life-term bureaucrats, whose orientation is to protect the bureaucracy.

  1. This is incompetence on the Governor’s part, had he not needed recognition his veto sticks. Alaska’s amateur hour continues.

  2. “Henderson was appointed by Gov. Bill Walker in 2017 and faces her first retention vote.”

    Buh-bye >:[

  3. A poor appointment choice by a poor choice of Governor….Gov Walker was turned out of office the this judge should get turned out of her judgeship on November 03 as well.

  4. Judges, with few exceptions,, are always retained.
    Vote “NO” on all judge retentions on the ballot. If enough citizens do that, judges may start to get a hint that they are supposed to work for us, rather than their #AGENDA.

  5. Well this will be fun, as the AK Courts attempt to take complete control of their budgets. Tall Man has the opportunity to point and laugh after the AK Supremes uphold this opinion.

    Ironic that a judge calls a veto an unconstitutional violation of separation of powers by committing her very own unconstitutional violation of separation of powers.

    Never forget the continuing damage that the Walker – Mallott Unity Ticket is doing to Alaska. Never Remember it the next time Vince Beltrami and Bruce Botelho get themselves involved with anything political, for it will never end well. Expect a lot of other little hand grenades they pulled the pin on and left lying around after they were tossed from office. This won’t be the last one that goes boom.

    Finally, the AK Courts continue to make an increasingly ironclad case for a constitutional convention in 2022, where we can force these black-robed politicians to actually run for office like all the other politicians. Cheers –

  6. The Governor was correct to reduce the budget for the Alaska Court System. However, he followed bad advice and made the reason public. It would have been much wiser to make an unspecified cut to the Judiciary for say $400,000, and tie the reason to cuts that all branches of the Alaska Government are going to have to take.
    Another Judge that needs to be voted out is Jonathan A. Woodman in Palmer. He was also appointed by Bill Walker. My experience with Mr. Woodman revealed that he will knowingly and intentionally refuse to investigate matters brought before him in a fair and impartial manner.

  7. A classic example of wills and dualing plenary powers. The governor has constitutional line-item veto power over the budget, subject to a legislative over-ride. The court has interpretive powers over the executive and legislative branch actions. So……..if the court is getting short-funded by the governor, the court will examine the “reason” for the diminution of funds. In this case it “appears” punitive by the action if the governor based on the court’s prior abortion rulings. The court will then reverse the governor’s actions as “illegal.” It’s called survival of the dualing seperations of powers. And to think that the courts are non-political is akin to rote ignorance.

  8. I always vote against every judge up for retention. Career politicians and judges start taking their position for granted. Return them to the real world where jobs aren’t guaranteed or permanent………..

    • What do you do, Marlin? Do you think you should be fired from your job every few years just so we can all make sure you don’t take your job for granted?

      Judgeships in Alaska aren’t “guaranteed” or “permanent.” We have a system for reviewing judges to make sure they’re doing their job well, and giving voters the opportunity to vote them out if they’re not. Voting no on every judge every election is just plain silly, not to mention inefficient.

      • We are bosses. We’re not required to be good bosses, just bosses. Judges are at-will employees. We can fire them for no reason. If they can’t handle that they can go somewhere else just like everyone else can do.

      • No Tara it is because we have no say in their appointment. I vote no every time also but there are to many lazy voters who don’t do their homework. Judges should not be involved with the budget that’s why we voted for a governor who would make some cuts.

    • Alaska has become overrun with criminals that are caught, slapped on the hand and released. If for no other reason than that all judges should be released back into the wild and a fresh crop given the chance to show they have a spine and understand what they’re supposed to do.

      • Judges don’t write the sentencing laws. The are bound by the laws enacted. If you think criminals deserve stricter sentencing then elect legislators who will change the law.

        • Thanks for the civics lesson. Judges exercise wide discretion with regard to sentencing and therein lies the problem.

          Example… was murdering a gardener at the O’Malley Zoo Clayton Charlie’s first brush w/ the legal system? Noop. He’s got 23 entries on CourtView.

          More recently, how about the nutbar that was sleeping on the lawn at Prov certain that visitation w/ him would provide his daughter some kind of medieval proximity cure.; risk to others in the hospital be damned… that guy had three entire pages dedicated to himself.

          Or everyone’s favorite choke and spank FFA slob that was told “looks like you get a free pass”. How about no. How about judges that don’t look first for a way to let every miscreant possible slip the legislative noose?

          We don’t need new laws or more laws, we need judges that aren’t afraid to clean up the streets.

          • I think judges are also cognizant that legislators are not providing adequate funds to properly prosecute law-breakers, and the judges factor that info into their discretionary decisions, i.e. use available funds to prosecute felonies at expense of misdemeanors.

  9. Judge is smoking Crack. Judicial does not hold the purse strings. The Decision itself is unconstitutional and they are not Elected by We The People.

  10. That is a fairly long list. It is far easier to just assume that if they are a judge in this state that they are a member of the radical left as well.

  11. I will never vote to retain judges as long as lawyers are the primary votes for them. As far as the Supreme Court this decision is so anti democratic and devoid of the three branches doctrine that it defies belief.

  12. Your headline is just plain false. The ruling was that this particular veto was unconstitutional. The governor has authority to veto court system budgets, but not for unconstitutional reasons!

  13. So why do we pay all these Legislators, Senators, and a Governor? This Judge thinks she can address the budget all on her own without any democratic process. Time to clean out ALL the Judges! The system for appointing these Judges is breaking Alaska and needs to be fixed. Liberal lawyers electing Liberal Judges. Even if we vote her out there are a dozen more just like her waiting in line to be appointed. The judicial branch has once again overstepped the boundary and not only broken the trust given them but broken the constitution. FIRE THEM ALL!

  14. So now the governor is forced to take this to the AK Supreme court who will then rule based on the Alaska constitution rather than emotion as judge Henderson did. Waste of time and money countering the action of yet another activist judge. Who will take the lead informing voters that she needs to go? My donation to that effort is ready. With less than 3 weeks we better move quickly.

  15. And…one more for the list to vote to NOT retain. Thank you for the clear road to good decision making.

  16. Think of all the time and money this saves. There is no need for the Legislature to review the budget given them by the executive, no need for finance committees; all superfluous and only ceremonial. The court can now look at the Constitution and from that they decide what expenditures need to be for the coming year. And why have an OMB in the executive branch? Should the Governor seek court approval of his budget before the December 15 release? After all, if he can announce on December 15 that the budget he is releasing to the public has already been approved by the court there may be no need to swear in a new legislature at all. As the court steps into these new roles I wonder if we can do away with elections altogether. And why forecast revenues; are forecasts necessary when the court decides spending needs independent of income or competing priorities? This really is a game-changer. The Alaska court has created a role that ancient Rome assigned to a specific part of government for hundreds of years; there was a very formal and carefully tended oracle function that trumped all other branches of government. Clearly the Alaska court has chosen now mapped out that role for itself, and the one question I hope MustReadAK asks them is where are they gonna get that steady supply of virgins?

  17. Wow! I never thought a judge would go far in usurping the role of the legislature. Truly unbelievable! She is either incompetent to serve as a judge or is an extreme activist judge. . In either case she needs to not be confirmed.

  18. This is not right and I hope (don’t necessarily expect) that it is overturned on appeal. Judge Henderson’s ruling adds requirements to the law that simply aren’t there. The language does not need interpretation: the Governor is required to provide a statement as to why he vetoed the bill or portion thereof. Period. If the legislature doesn’t like the reason, a means is provided to overturn the veto.

    Dressing up a mistaken decision in fancy language “separation of powers doctrine” doesn’t overcome the plain language of the constitution.

  19. Doesn’t the judge look like the caricature in the 1985 movie “Mask” played by Eric Stoltz?……just sayin.

  20. Judges are people too, this one clearly has made a mistake in this ruling. Let’s hope that the next judge to rule on this actually understands the law and our system of government.
    Add Judge Jennifer Henderson to the vote no list.

  21. Just so I understand the implications: An unrestrained legislative coalition and the court collude to increase the court system budget by $500m “for the good of the people” and it passes the legislature but the Governor vetoes the measure; then the legislature fails to override; then the court vacates the veto, securing the funding. Next step is payback to the legislative coalition by ruling in their favor. Where exactly is the constitutional check on this? Sounds like the first stop on a trip to the US Supreme Court.

  22. Judge Henderson joins joins Judge Crosby on the list of activist judges who should be voted off the bench!

  23. This is a time when voting a judge out of office is appropriate. The fact that this is even a possible exercise of a judge is fiction. The legislature has the power of the checkbook, the governor has veto power and the ONLY avenue to override a veto rests with the legislature. The judge has violated her oath to uphold and defend the constitution, she is out.

  24. A huge percentage of the comments following this story are based on political hysteria or nothing more than ad hominem attacks on the trial court judge. These attacks miss the essential point that the decision is wrong as a matter of constitutional law.
    Under the Alaska Constitution, the Governor has the ability to reduce or veto appropriations. Governor Dunleavy made the reduction to the appropriation for the judiciary and was within his authority. The trouble Governor Dunleavy got himself into was based on the unbelievably stupid advice he took from his then Chief of Staff, Tuckerman Babcock, who advised him to insert language in his reduction to the funding that indicated the reduction was related to abortion. Here is another example of Babcock engaging in dim bulb virtue signaling. Not surprisingly, Babcock’s stunts wound up rebounding negatively on Mike Dunleavy.
    Babcock is without sufficient discipline not to engage in these kinds of antics and it is no wonder that he wound up replaced by someone with the kind of maturity and political savvy that the Governor was missing.
    If this administration had a competent Attorney General, which is problematic at this juncture for all the obvious reasons, an appeal to the Alaska Supreme Court would result in reversal.
    Here’s the deal: any governor has constitutional authority to veto or reduce line items in the budgets. The legislature has authority under the Alaska Constitution to override the reduction or veto. There are, not surprisingly some procedural and even substantive limits to these powers. For example, if any governor completely eliminated the entire budget for the judicial branch of Alaska’s government, it is likely that a court case seeking enough funding to maintain minimal functioning of the judiciary would be sustained on constitutional grounds. But that was not what happened in this case. Governor Dunleavy was placed in this unlovely situation by Tuckerman Babcock and a judge seemingly not conversant with core constitutional principles. One can only wonder what whether the advocates for the state’s position knew what they were doing at the trial court level.
    The right thing to do is appeal this case and find someone who can thoughtfully articulate the basic constitutional principles involved in this dispute and get beyond the wingnut language Babcock hung around Governor Dunleavy’s neck.

  25. The governor’s decision, apparently at Babcock’s urging, vetoing the same amount used for family planning/abortions was clearly a political reaction to a core group of his gubernatorial supporters. He may or may not have expected it to hold water. From a constitutional perspective, though, he might have pulled it off if the link between cause and effect had not been specifically stated.

    I accept the Judge’s justification. Reading her argument I think it’s evident its essentially a separation of powers argument between the 3 branches. Basing the judiciary’s funding on the popularity of its decisions prevents it from performing its constitutional duty, which is to administer the justice system as established by the legislature.
    Same with elected judges – the result is a popularity contest based on the popularity of the issue under consideration. Depending on the integrity of the news media – currently absolutely atrocious – the end effect is mob justice (off with their heads simply by association) as in the French Revolution 1790’s. I hope we’re not approaching that point, although I wonder.

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