Judge rules legislature can appropriate future funds - Must Read Alaska
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Friday, November 22, 2019
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Judge rules legislature can appropriate future funds

DOESN’T BUY DUNLEAVY ‘FUNDS NOT IN HAND’ ARGUMENT

An Alaska Superior Court judge has upheld the Legislature’s right to appropriate future unknown funds for programs it deems important.

The decision, if it stands, will have a substantial impact on lawmaking and budgeting going forward. Legislators may decide to do extensive forward funding programs during an election year, when a new governor is likely to take office. That governor would not be able to reach back and veto funding made and approved in previous years, and may lose the ability to veto for multiple years.

The issue went to court because the Dunleavy Administration argued that appropriating funds that were not yet in hand is unconstitutional.

But Juneau Superior Court Judge Daniel Schally disagreed, writing that “While Alaska’s constitutional framers sought to protect state control over state revenue and to ensure legislative flexibility over the disposition of revenue sources, and to limit certain powers and to avoid certain pitfalls, it is also apparent that the framers did not intend to prevent the state from experimenting and adapting to changing circumstances.”

Scally continued, “Simply put, the forward-funding appropriations here do not constrict the legislature’s power over free disposition of state funds to such a degree that they exceed the legislature’s freedom to experiment and adapt to the changing circumstances and hurdles of the day, particularly in the field of public education.”

Read the entire decision here:

The matter will now go to the Alaska Supreme Court on appeal.

“This decision upends the appropriations process as we know it and could lead to one legislature and governor setting the budget five, six or more years in advance,” said Attorney General Kevin Clarkson. “Although the education funding at issue here was only for one year in advance, following the superior court’s logic, there is really no time limit to speak of on the legislature’s decision to future appropriate, aside from political will. By the superior court’s decision, budgeting five years, six years, even 10 years out is fair game.

“We fundamentally do not believe that is what our constitutional framers envisioned when they discussed an annual budgeting process. This issue is too important not to appeal and get final guidance from the Alaska Supreme Court, so we all know going forward what the rules are.”

In 2018, the Legislature passed an appropriation bill that committed future revenues, not revenues on hand in the State treasury in fiscal year 2019, to pay for education in the future fiscal year 2020.

Clarkson issued a formal Attorney General opinion on May 8, 2019, concluding that the appropriation was unconstitutional and a new appropriation was needed.

The Legislature disagreed and decided not to pass a new appropriation, which left education, in the opinion of the Attorney General, without any constitutional source of funding. The Legislature ultimately sued the governor in order to resolve the dispute.

The Dunleavy Administration has been releasing funds to the education community on a monthly basis under a court-approved stipulation agreed to by both parties.

The current stipulation remains in effect until a final judgment is entered.

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Suzanne Downing had careers in business and journalism before serving as the Director of Faith and Community-based Initiatives for Florida Gov. Jeb Bush and returning to Alaska to serve as speechwriter for Gov. Sean Parnell. Born on the Oregon coast, she moved to Alaska in 1969.

Latest comments

  • “The Constitution of the State of Alaska. Article 12, Section 8. The enumeration in this Constitution of specified powers shall not be construed as limiting the powers of the State.” That is not a constitution, but instead corporate bylaws. The only purpose of any constitution is to limit the powers of the State. Otherwise, the State has unlimited powers which is a communist/fascist/Nazi state. We were founded as a constitutional republic. Not a democracy. This court decision will bankrupt Alaska. Seymour Marvin Mills Jr. sui juris

    • Seymour: Are you capable of not hijacking every issue and applying your crabbed analytical construct to the issue at hand?
      This issue turned in application of Article IX provisions, not Article XII. Get with the program instead of spewing.

  • “If it stands”. That’s a good one!

  • Hope the Governor and his AG his sense enough to appeal this to the US Supreme Court no matter how long it takes. We have these judges that are idiots for a few power hungry attorneys. They were same before being appointed. But they can be fired…hope this one gets fired..

    • The chance of the US Supreme Court hearing this case is zero.
      Keep studying instead of spewing.

  • This Judge seeks to undermine the whole concept of separation of powers and void the will of the electorate by one flimsy decision. His explanation about the founders intent to “experiment ” would be funny if it wasn’t so tragically flawed. Elections occur periodically in order to get direction from the people. One silly Judge with his legal mumbo jumbo now attempts to nullify the will of the people.

  • This decision could go either way on appeal.

  • This decision could go either way on appeal.
    The trial court’s analysis appears to misapprehend the dedication of specific funds received (e.g., royalties, rents, taxes, etc.), with all funds in the General Fund and comes to the conclusion that so long as a particular funding source is not dedicated then it is permissible to dedicate the general fund revenues.
    A superior reading of the Alaska Constitution and one consistent with the expressed statements by the framers of our constitution is that generally speaking no General Fund money can be dedicated for future appropriations in the out years.
    The exception to this constitutional principle is where there is an obvious revenue stream for some project or activity, e.g., it’s OK in controlled circumstances to borrow money for building housing or student loans or building hydroelectric projects and then dedicating money received from the homeowner or student or user of electric power to repay the borrowed money.
    The trial court’s conflation of all funds placed in the the General Fund from the particular source as somehow allowing dedication of money held in the General Fund and that characterizing these funds as being capable of dedication because the are not dedicating a particular revenue source is constitutionally dubious.

  • Alaska…. Farthest North Banana Republic.

  • I don’t have a lot of confidence in the AK Supreme Court to overturn this decision. As AG Clarkson stated, what’s to stop a legislature from forward funding 3, 5 or 10 years, effectively tieing the hands of future governors.

    Leftists and socialists in Alaska and elsewhere are dancing in glee. RIP Alaska. You’re no longer a Republic, and you’re officially on the path to become a mirror image of The People’s Demokratik Republik of Kalifornia.

    • Do you honestly think that any Governor would not veto such legislation that tied their hands up for such extended period (3,5 or 10 years)? Frankly I find the thought that any future Legislature would pass such absurd legislation as bordering on impossible.
      Bordering is the “operative” word here and we must always be vigil to make sure such craziness doesn’t happen. In other words, if such were to happen, we have ourselves to blame for electing such a Legislature.

      • Well said Bill, “we have ourselves to blame for electing such a Legislature.” We don’t have to wait and see if it has happened as that day is already upon us, the craziness has happened and a court of law has upheld it. Our lack of vigilance has allowed the craziness, let us not allow more of it.

        • Just your opinion Four-Flusher about the craziness is here and so far, the court agrees.
          The only argument Clarkson has is that this could move to 3,5 or 10 years but frankly, as I said above, such a scenario is absurd as 1) No legislature would feel the need to do such and 2) If such occurred the Governor would certainly veto it.

          • Got it, for you the absurdity and craziness begins somewhere between years 1 and 3.

          • Yessir Four-flusher, sort of on the order of if our Legislature determined they should only meet every two years and thus fund the entire budget one year into the future.
            Not even you would consider such a scenario crazy or absurd.

          • I wouldn’t consider it crazy if we had a biennial legislature, but we don’t have a biennial legislature, do we. Not to mention that’s not the subject at hand.

          • Yessir Four-Flusher, the subject at hand is whether/not forward funding is constitutional and clearly a Legislature that meets every other year would necessarily need to forward fund a year out (not 3,5 or 10 years).
            This, you admit would not be crazy, so you seem to think one year out is OK (just like me) so tell us again what is so crazy about the one year out funding for Education budget??
            Take your time.

          • Bill

            We don’t have a biennial legislature, that means they don’t meet every other year. You argument as it is, is flawed. If you want to change our state legislature to a biennial legislature then I will support you and your argument about funding more than one year in advance.
            .

            All of which is a moot point since, if somehow our legislature were to become a biennial legislature and they passed the budget in the first year they were seated they would not be tying the hands of a future legislature, which is what this entire conversation is ultimately about.

          • Boy Four-Flusher you can really spin when you want. Heheh!
            Clearly if we had such a legislature then it would be OK to fund budgets into the future but since we don’t it’s not OK.
            I suspect the SC will also agree with this judge but we will see. And this is not really about tying the hands of a future legislature but keeping the issue from the veto of the Governor.

  • This state is doomed.

  • The judge wrote a reasoned decision that, like all such decisions, was built on the foundation of many past decisions. There’s a trick to doing that…quote specific language out of a past case that was most likely written to address a different issue and then declare that it pertains directly to the issue at hand. All judges do this and sometimes it is valid and sometimes it is not but it always allows a judge flexibility to warp past decisions to their preconceived notions.

    This particular judge spends a lot of ink on the legislative power to appropriate funds and rightly notes that a future legislature has the power to modify or even eliminate the forward funding decisions made by a past legislature.

    That’s all fine and dandy but then he glosses over how forward funding strips the current governor of his power to veto legislative appropriations. The judge reasons that the former governor had the power to veto the forward funded appropriation at the time it was made but did not so that legitimizes tying the current governor to appropriation decisions that he or she had no hand in.

    So, the legislature retains all of its power to make or change appropriations but the current governor loses his power to veto legislative appropriations because, according to this judge, those decisions are now history that all of us must live with unless the legislature, and the legislature alone, decides to act.

    Walker lost, it seems, because of his unpopular fiscal policy decisions. The people of Alaska elected a new governor who has a completely different approach. Now a single judge has decided that we’re to be forced to accept fiscal policy that we rejected at the polls because he wants to preserve the legislature’s “freedom to experiment.”

    Alaska has a long history of handling appropriations in a certain way but with a few sentences this judge throws all of that history in the garbage can as if precedent only applies if it comes to us as a past legal decision that we can quote out of context to support the decision we already favor. History matters…but not to this judge.

    Read the entire decision. It is only ten pages and is well written. Notice how the judge stresses areas that support one side but rejects contrary notions with an unsupported sentence or two or simply ignores concepts or history that he cannot easily dismiss. It’s common judicial practice these days.

    This decision must be struck down by the Alaska Supreme Court. Forward funding takes away a sitting governor’s veto power over current year spending while preserving the legislature’s equal but separate powers of appropriation. Forward funding is contrary to our history. And, from a purely common sense perspective, dedicating funds for forward funding that we may or may not have the revenue to support is a very irresponsible way to manage public funds.

  • It will never stand. Just a liberal judge similar to california’s that rule, only to be turned down in a higher court.

  • If you needed an example of judges legislating from the bench this is it. This liberal Juneau judge has it exactly backwards. The Governor and the Legislature need the flexibility to react to changes in oil prices, population fluctuations and other factors and appropriate accordingly. Locking in out years will ensure we continue to spend more for less as we have been doing for a number of years.

  • The good news: Now the Alaska Legislature can forward fund the budget for say 5 years and then not have to convene for those 5 years!

    • It would be great to see the lawsuits when a legislature forward fund no funds for five years!

  • If a supreme court judge and the entire Alaska supreme court is under ethics allegations for political bias regarding needed budget cuts, political partisan action, extremely biased personal political positions in Alaska government issues, do any or the empaneled justices on the Alaska supreme court qualify to hear any case? Much less, a case involving themselves politically. Public declarations of political partisanship by the Alaska Supreme Court (“anonymous”, unrefuted letter from supremes, public position supporting petition for recall), before the grounds are heard to logically and legally support the petition) are ample reasons to disqualify and remove the entire liberal portion of the sitting Alaska Supreme Court. Forward funding by any entity is only viable with unlimited funds available and like minds forever. Not only that, what justifies one group of politicians currently in power, to dictate anything to future, oppositely inclined legislators? Doesn’t make sense. True, it’s a dream scenario for leftist/dims. Doesn’t make it good for Alaska. Where are the feds on this blatant socialist exercise?

    • Ben Colder: Are you seriously calling for federal intervention here, as seems to be the import of your last sentence?

      • Joe I hope so , I call for it too!

        • So much for self-reliance.
          And under what conceivable constructional theory would you have the federal government meddle in our civic and political decision making process?
          Get a grip here guys.

          • Because we can’t handle it. The legislature is inept and muddies up the waters. Even stuff that is good for Alaska they screw up.

      • Joe,
        Shouldn’t have to call on anyone to straighten this mess out, except the voters of Alaska. The conflicts of interest, political incorrectness by the Alaska judiciary hierarchy(supposedly the most trusted and non-partisan body available), deliberate misrepresentation of facts and figures, and worst of all, dislike or outright hatred of our Governor and policies. These wrongs should speak for themselves and call attention to them, on their own lack of merit and substance. At whatever agency is mandated to rectify these wrongs. What I ask for is balanced, non-biased, non-political law abiding action by, at the very least, Alaska’s supreme court justices.

        • Ben, it’s the voters of Alaska that will fix this mess in the upcoming recall election. And that’s because of the outright hatred of our Governor’s policies-once these voters get into that booth it’s that hatred that will overcome all else IMO.

        • And we may well get a reasoned opinion from the Alaska Supreme Court. See my comment on problems with the trial court’s decision, above.
          What ought to be of concern here is the State of Alaska bungling the arguments that need to be made about the Alaska Constitution at Art. IX, Sec. 7. The State of Alaska, via the Attorney General has been erratic interpreting Article IX the last couple of years. That is a problem centered on the judiciary.

  • Why pay lawlesslators or a governor when a dictatorship of judges has decided it can usurp those branches of government? Think of the savings……..if there were to be any and THAT is highly unlikely.

  • When the court’s line of reasoning in this case is combined with the line of reasoning expressed in the Weilochowski decision, the court is essentially saying that the future income can be dedicated to any purpose the legislature chooses EXCEPT the PFD.
    This is what arbitrary and capricious is all about.
    The rule of law has been replaced by the rule of faction driven power in Alaska. This sad state of affairs is caused by turning to the government to ‘provide’ rather than limiting it’s power to the function of ‘governing’.
    We will continue to degenerate into fear driven mobs as long as we expect the government to provide, and will not be able to crawl out of that hole until we recognize, understand and respect the principles laid out in the Declaration of Independence and Article 1, Sec. 1 of Alaska’s State Constitution and demand that the legislature, the governor, and the court justices do the same.

    • The Alaska Supreme Court’s decision in the Wielechowski case cuts against upholding the trial court’s decision. Whether the Alaska Supreme Court upholds the decision or overturns the decision depends in part on how the Attorney General’s Office presents the case. Under this administration the A.G.’s Office hasn’t covered themselves with glory. The A.G.’s Office has argued in an inconsistent manner about the dedicated fund provision in the Alaska Constitution and those inconsistencies work against a sensible application of our constitution.
      Oh well ………..

  • Cut the courts budget far enough so they can conduct court in a field with a table and chairs. Now we have some money for the courts decision to forward fund stuff with their share of the pie.

  • The best way to ensure forward funding of K-12 is to improve outcomes. Are the above average school districts forward funded? Are any school districts forward funded, or is this a swindle?

  • I have long advocated for forward ‘funding’ but not forward ‘spending’. If they legislature was required to allocate/appropriate within ‘existing funds’ we just might begin to see some constraint. But when they write budgets based on income projections, regardless of what might happen in the coming year, we have found ourselves in trouble as projected incomes are seriously wrong.

    If the decision stands as written, then we no longer have true veto authority in our constitution. Clarkson is correct in his reading of the opinion, they could approve ‘spending’ multiple years forward, and the state’s CEO can do nothing.

    I also have no confidence in the Alaska Supreme Court, but we will wait and see.

    If you want to look at a state making serious progress on spending constraint, look at Kentucky.
    We now have 12 states that are technically bankrupt (but no legal authority for states to declare bankruptcy in federal courts – but the Dems will try soon) and over 100 municipal entities have actually filed federal bankruptcy in the past decade.

    Alaska has more government employees per capita then any other state – no, wait a minute, Alaska has more government employees in our state than any other country per capita in the world.

    It’s all laid out in my new book, Stopping Americas slide into Socialism – through the Alaska portal.

    • Good Reasoning Rick I agree 100%

  • Because we can’t handle it. The legislature is inept and muddies up the waters. Even stuff that is good for Alaska they screw up.

  • “The freedom to experiment” … yeah it’s like planting your feet in concrete and calling it an experiment in mobility.

  • It would be interesting to know who appointed this judge.

    Anyone know?

    • Don’t know who originally appointed him to Valdez district court 14 years ago, but Walker appointed him to this position last November. He is not a newbie and had been subbing for other superior court judges for years.

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