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Judge rules legislature can appropriate future funds

Suzanne Downing
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42

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:
Education-forward-funding-decisionDownload

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.

Lawsuit filed in Homer over residency of council member

Suzanne Downing
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6
Lawsuit filed in Homer over residency of council member

QUESTION: DID STORM HANSEN-CAVASOS LIVE INSIDE CITY LIMITS?

Former Homer City Council member Tom Stroozas has filed a formal election contest with Anchorage Superior Court today, challenging the election and seating of Council member Storm Hansen-Cavasos.

The lawsuit claims that Hansen-Cavasos was not an eligible candidate in the Oct. 1, 2019 City Council election because she failed to meet the residency requirement; Homer City Code requires candidates for the City Council to be residents inside city limits for at least one year prior to the date of the election.

Photo of Storm Hansen-Cavasos being sworn in
Council member Storm Hansen-Cavasos gets sworn on Oct. 28, 2019.

Under Homer City Code, a candidate or 10 registered voters are allowed to contest a municipal election. This involves filing a contest with the City of Homer, and seeking judicial review by filing a complaint with the Superior Court.

“Although, I am sure some partisan types will attack me by saying that this lawsuit is just sour grapes, but this is about election integrity and the rule of law,” said Stroozas. “I have already publicly stated that I will not be seeking the seat on the City Council for myself even if the court orders a new election to be held.”

Prior to the certification of the election, Stroozas filed a formal challenge with the city.

[Read: Homer City Council winner faces residency challenge]

Evidence provided with his challenge were numerous documents and sworn statements showing that Hansen-Cavasos was living in a leased house off East End Road, in Fritz Creek up until Aug. 2019.

[Read: Investigation into candidate’s residency done]

Additionally, in April 2019, some six months before the election, Hansen-Cavasos filed a voter registration claiming her address off East End Road as “the residence address where [she] claim[s] residency.” Hansen-Cavasos’ signed the voter registration “under penalty of perjury” affirming the information provided on her registration form was “true and accurate.” Providing false information on a voter registration form is a Class A Misdemeanor under Alaska Statute 15.56.050.

[Read: Homer council seats member whose residency was challenged]

“Alaska statutes create a strong presumption of residency at the address listed in the voter registration that can only be overcome in very limited circumstances that don’t exist in this case,” said Keri-Ann Baker, attorney with the law firm of Reeves Amodio LLC, which is representing Stroozas in the case.

“What is also unique is that this isn’t a case of someone failing to update their voter registration at their new address, but a candidate filing a voter registration and later claiming it contained false information,” Stroozas said.

Hansen-Cavasos didn’t register to vote at an address inside Homer city limits until August 8, 2019, the same day she filed her Declaration of Candidacy. In her candidate declaration, she claimed to having been a resident of the City of Homer since May 2018. Hansen- Cavasos later submitted an affidavit to the election contest claiming to have moved to Homer in June 2018.

In 2019, Hansen-Cavasos also claimed her address off East End Road as her residence on her Permanent Fund dividend application. Stroozas also provided evidence of several text message and social media postings where Hansen-Cavasos refers to her address off East End Road as her “home”, including one text message on July 4, 2019 where Hansen- Cavasos states that she “will be living in town soon.”

“Ms. Cavasos can’t provide a straight answer on why, if she lived in the City like she claims, she has filed multiple documents with the State of Alaska and other government entities listing a false address,” Stroozas said. “And it’s not like this was a one-time offense. Quite simply, she is either filing multiple false documents with the government under risk of criminal penalty or she is lying to the voters – and she needs to answer for that.”

The City of Homer and the Homer City Council are defendents in the case.

With today’s Anchorage Superior Court filing, Stroozas is seeking a declaration from the court that Hansen-Cavasos was not legally qualified to be a candidate in the election and asks that her election invalidated.

The complaint also seeks a restraining order preventing Hansen- Cavasos from remaining seated on the City Council and from performing official acts as a City Council member until the full case can be heard. Stroozas has also requested that the Superior Court hear the case on an expedited schedule.

Stroozas is represented by Keri-Ann Baker and Tom Amodio of the law firm Reeves Amodio LLC.

“These disputes can be politically charged,” said Baker, “but frankly we are simply focused on the law and ultimately, we are confident that once our client has the opportunity to present all the evidence, he will prevail in this case.”

The case has been assigned to Judge Andrew Guidi.

Cassie Lawver, a conservative activist who originally identified the residency problem with Hansen-Cavasos, is taking contributions to pay for the attorneys. She can be reached at caslawver @ gmail.com.

State asks judge for rehearing on campaign donation limit ruling

Suzanne Downing
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9
State asks judge for rehearing on campaign donation limit ruling

ANCHORAGE JUDGE EXPANDED $500 CONTRIBUTION LIMITS TO PACS

A little-known liberal advocacy group in Washington, D.C. has won an important ruling from an Anchorage judge to limit future contributions to Alaska super PACs and independent expenditure groups.

The limit would be $500 per person, the same limit that state law applies to candidates’ campaigns.

Now, the State of Alaska has challenged the October ruling, asking for a rehearing because some important elements were left out of the case.

Anchorage Superior Court Judge William Morse ruled in favor of “Equal Citizens,” which brought the lawsuit on behalf of three Alaska Democrats against “Interior Voters for John Coghill,” “Working Families of Alaska,” as well as the Alaska Public Offices Commission.

The case stems back to the 2010 “Citizens United” Supreme Court decision, which said that political action groups may accept donations and influence elections through independent groups that do not coordinate with candidates’ campaigns. That ruling held that the free speech clause of the First Amendment prohibits the government from restricting independent money spent for political communications by corporations, nonprofit corporations, labor unions, and other private associations.

[Read: Citizens United v. Federal Elections Commission]

Such was the case with Interior Voters. It was a group formed by the late Scott Hawkins, founder of the now-disbanded Accountability Project, which Hawkins set up as a pro-economy grassroots activist group after the 2010 Citizens United Ruling.

Interior Voters was registered with the Federal Elections Commission for campaign work for less than a month’s worth of effort leading up to the November, 2016 election; the effort included printed postcards, online digital media, radio and cable television ads, and door-to-door, get-out-the-vote work.

Hawkins died in August of 2019. The chair of the Interior Voters for John Coghill, Kathleen “Mike” Dalton of Fairbanks, died in February. Because both were in failing health in the last year of their lives, no legal defense was mounted on behalf of Interior Voters.

But back in 2016, Hawkins and Dalton had raised funds and sent mailers out in support of their favorite candidate, Republican Sen. John Coghill, and they opposed Democrat Luke Hopkins, the former mayor of Fairbanks. Coghill ended up winning that race.

With The Accountability Project on the rise in Alaska, backing and winning races, the Equal Citizens group took note, and filed a lawsuit.

The other group named in the lawsuit, Working Families of Alaska, was formed in 2011 by Local 341 of the Labor Union. It had worked on behalf of Democrats for many years, having been formed right after the Citizens United ruling came down from the U.S. Supreme Court.

It wasn’t until conservatives in Alaska started making strides with these independent expenditures that it became a problem for the liberal Equal Citizens group, which had ignored the union expenditures for years.

Equal Citizens with its strong Democrat Party and Washington D.C. connections filed on behalf of three Democrats. The litigants hope to take the case all the way to the U.S. Supreme Court to begin to erode some of the provisions of Citizens United. The Accountability Project made an easy target in a cheap state in which to litigate.

The judge’s ruling orders the Alaska Public Offices Commission to institute a $500 limit per person to a political action committee or independent expenditure group, to align with Alaska’s extremely limiting campaign laws that allow no more than $500 per person given to a candidate during a calendar year. In 2006, voters supported the measure with 73 percent of the vote.

That 2006 law against larger campaign contributions has not been applied to the independent groups — until this judge’s order.

Equal Citizens-decisionDownload

Because the Alaska Public Offices Commission is named as a defendant, the State Department of Law asked for a rehearing of the matter on Monday.

Petition-for-rehearingDownload

[Read original MRAK story from 2018: Outside group complains about Alaska super-PACs]

The case has the likelihood to go back to the U.S. Supreme Court, which had already ruled that free speech rights extend to these independent groups. But Equal Citizens is looking for another bite of the apple, through the liberal and cheap-to-litigate Alaska Court System.

A deeper dive into the recall signatures: Juneau tops list

Suzanne Downing
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13
A deeper dive into the recall signatures: Juneau tops list

THE MOOD IN THE SEAT OF GOVERNMENT IS FOR A NEW GOVERNOR

The district that had the most people signing the Recall Dunleavy application petition was downtown Juneau, with 3,012 people signing in House District 33. That was followed by University of Alaska stronghold Fairbanks District 4, where 2,709 people signed the petition.

Third highest in signatures was Anchorage south hillside House District 28, with 2,183 putting their name on the list. That district is represented by Rep. Jennifer Johnston, and is dense with University of Alaska professors and employees in the medical field.

But although some districts are nearly as blue as Downtown Juneau, they are not dense, and not as easy to collect signatures in. For example, Rep. Tiffany Zulkosky represents the blue District 38, whose hub community is Bethel. It’s a far-flung region, and signature gatherers just focused on the town.

In the downtown Juneau area, signature gathering was a cakewalk, centering in the beehive neighborhoods around the capital, where last year voters went heavily for Mark Begich for governor, with Precinct 2 voters favoring him with 597 votes to the 111 votes given to Michael Dunleavy.

It’s normal for Juneau: In 2012, the capital city led the state in percentages of those voting for Barack Obama for president. And in 2016, not a single precinct in the capital city had Donald Trump in the lead, and in downtown Juneau only 15 percent of the voters picked Trump.

[Read: Media moguls in Alaska sign recall petition]

Here’s the snapshot of all the House districts from across the state, with how many of their voters signed the recall petition. Under this snapshot is a downloadable spreadsheet with the same information:


Number-of-recall-signers-per-districtDownload

Media members signed petition to recall gov

Suzanne Downing
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92
Media members signed petition to recall gov

Among the approximately 49,000 signers of the initial application for a petition to recall Gov. Michael Dunleavy, several members of the media, including journalists, spouses of journalists, and board members of public broadcasting corporations appear on the list.

Must Read Alaska combed through the list and found reporters, show hosts, and others associated with KTUU, Fairbanks Daily NewsMiner, KTOO, and Alaska Public Media.

The spouse of Anchorage Daily News Editor David Hulen also signed the recall petition, as did several members of the board of directors of Alaska Public Media, including board chair, vice chair, and treasurer. Also, the spouse of the APM general manager has signed the Recall Dunleavy application petition.

No “editorial content” members from the Anchorage Daily News were found on the list during this review.

Readers in Fairbanks, however, will recognize the name of NewsMiner reporter Dorothy Chomicz, who writes about cops and crime for the paper. They’ll also recognize the name of Dermot Cole, longtime contributor to the NewsMiner and other publications, including his own political blog. His brother, Terrence Cole, is also on the list, but his editorial associate Alice Rogoff is not a signer.

In Anchorage, Karen Wuestenfeld, board chair, Alaska Public Media, appears on the list, as does Beth Rose, vice chair, and Pita Benz, treasurer.

KTUU’s Blake Essig shows up as a recall advocate, as does Haley Essig, who is related.

At Juneau’s KTOO public media station, board chair George Reifenstein, vice chair Leslie Longenbaugh and treasurer Melanie Lesh all signed the recall petition, but the staff of the station steered clear.

Several members of the Alaska Court system appear on the list of those wanting to recall the governor. We found no judges during this review except retired judge Carpeneti. Former Gov. Bill Walker Attorney General Jahna Lindemuth‘s name appears — no surprise, since she is an attorney for the recall effort. Along with her, fellow recall attorney and Bill Walker Chief of Staff Scott Kendall signed on.

Some of the other usual names are there: AFL-CIO President Vince Beltrami, Alaska Democratic Party Chairwoman Casey Steinau, and retired Judge Walter Carpeneti.

Former Lt. Gov. Byron Mallott signed the recall petition, as did Jody Potts of Fairbanks, who works as a Village Public Safety Officer. At the Rasmuson Foundation, Ed and Cathy Rasmuson signed the petition, and are funding the recall, and Rasmuson Foundation President Diane Kaplan is also on the list.

Democrat lawmaker Rep. Harriet Drummond of Anchorage signed it twice, while fellow Democrat Rep. Ivy Spohnholz of Anchorage signed it just once.

CROWD-SOURCING THE RESEARCH

Study the list yourself at this link.


Recall-Petition-SignaturesDownload

EPA alumnus Gina McCarthy named president of Natural Resources Defense Council

Suzanne Downing
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27
EPA alumnus Gina McCarthy named president of Natural Resources Defense Council

The Obama-era Environmental Protection Agency chief who became notorious in Alaska for insulting a jar of Alaskan moose meat given to her as a gift, has been named the president and CEO of the Natural Resources Defense Council.

Gina McCarthy will take over the 3-million member organization, where she will oversee a $151.6 million budget. Her salary and fringe benefit package was not disclosed.

In 2013, McCarthy traveled through Bristol Bay to further develop her plans to block the Pebble project, when she was given a jar of moose meet by the wife of the first chief of the Curyung Tribal Council. The moose meat was the from the first kill of a young boy from the tribe.

In an interview with the Wall Street Journal later that year, McCarthy described the meat as something that “could gag a maggot.”

The moose meat was from the first kill of a young boy from Chief Thomas Tilden’s tribe.

Under McCarthy’s administration at the EPA, the agency tried to block the permitting application of the Pebble Project in Western Alaska, by using a provision that prevented the U.S. Army Corps of Engineers from issuing any permits for the mine.

The EPA’s actions were later challenged by Pebble, and the agency ultimately settled rather than face Pebble in court. The settlement allowed the Pebble Limited Partnership to apply for a Clean Water Act permit from the U.S. Army Corps of Engineers.

[Read the terms of the settlement at this link]

Mat-Su Borough results: One seat is too close to call

Suzanne Downing
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0
Mat-Su Borough results: One seat is too close to call

CONSERVATIVES DID WELL IN LOCAL ELECTION

About 50 people gathered at the Americans for Prosperity Alaska offices in Wasilla for an election night party on Tuesday to watch the results as they came in for the local election — the first time it has been held on the first Tuesday of November in the Mat-Su.

More than 4,248 voters turned out on the “off year” election, and the hotly contested Assembly District 1 seat is still too close to call, since absentee ballots have not been counted — and there are likely to be a lot of those.

[View the election results at this link]

The results tonight, without those absentee ballots give Tim Hale, who has strong Democrat support, a slight edge with two votes, close enough for a recount.

Moderate Stephanie Nowers won decisively in Assembly District 2, against incumbent Lamarr Anderson.

The School Board went conservative with Jim Hart, Ryan Ponder and Jeff Taylor winning seats.

“It was a well-run race and am pleased to win but it’s time to get to work. we have extremely low test scores, we’ve got the work of hiring a new superintendent, and that superintendent is going to be told to dig to the bottom of the problem of the low test scores, we’re going to be looking for answers,” said Hart.

Assembly District 1

  • ENDLE, Brian – 983
  • HALE, Tim – 981
  • BUSH, J. Bruce – 111
  • MILLER, Ryan A. – 21

Assembly District 2

  • NOWERS, Stephanie – 610
  • ANDERSON, LaMarr L. – 511
  • MAXSON, Elizabeth A. “Liz” – 72
  • DONEY, Faunus M. – 33

School Board District 2

  • HART, James E. “Jim” – 600
  • MICHAELSON, Ray – 574

School Board District 5

  • PONDER, D. Ryan -296
  • HARTLEY, Alma N. – 183

School Board District 7

  • TAYLOR, V. Jeff – unopposed – 359

ACLU pleads with court to take Dunleavy’s veto pen

Suzanne Downing
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8
ACLU pleads with court to take Dunleavy’s veto pen

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.

ACLU ComplaintDownload

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.

Recall group files appeal in Superior Court

Suzanne Downing
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26
Recall group files appeal in Superior Court

Recall Dunleavy, the group trying to remove the governor with a special recall election, has filed an appeal of the Attorney General’s decision that their complaint lacks merit.

The appeal, signed by former Gov. Bill Walker Attorney General Jahna Lindemuth in Superior Court in Anchorage, comes a day after the Division of Elections rejected the group’s initial application for signature-gathering petitions. The appeal was expected, and was also signed by former Gov. Walker’s former chief of staff Scott Kendall.

Recall Dunleavy ComplaintDownload

Lindemuth says the director of the Division of Elections is denying the group their constitutional right to a recall petition. She is arguing that when the director of the Division of Elections makes a determination that “the application is in the required form, the director must assume that all allegations made are true and valid.

According to this argument, if the recall petition says that the governor hates green jello, the director of the Division of Elections must assume that the allegation is true for the purposes of her decision to allow or prohibit the matter from proceeding.

The arguments made in the recall petition accuse the governor on these grounds:

  • That he violated statute by not appointing a judge within 45 days of receiving nominations from the Alaska Judicial Council.
  • That he violated statute by using state funds to make statements on partisan issues. This relates to social media and postcards from the governor’s office in support of a full Permanent Fund dividend.
  • That he violated separation of power by using a line-item veto on the Alaska Court System. The Recall Dunleavy group is arguing he does not have the power of the veto pen when it comes to the court system.
  • He was incompetent when he mistakenly vetoed $18 million more than he had intended to veto, although the group admits that the error was corrected.

The Recall Dunleavy attorneys — Lindemuth, Kendall, Sam Gottstein, Jeffrey Feldman, Susan Orlansky — are asking for an injunction so that the Recall Dunleavy group can start collecting signatures for the next phase of the recall process.

They are also asking for their attorney fees to be covered by the State of Alaska.

[Read: Attorney General says recall petition lacks valid reasons.]

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