Should governor follow Alaska Constitution on budget date, or ignore? Attorney General asks Superior Court to decide - Must Read Alaska
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Saturday, July 24, 2021
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Should governor follow Alaska Constitution on budget date, or ignore? Attorney General asks Superior Court to decide

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

The Legislature 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 mean sometime in September and could lead to a partial government shutdown this summer.

Democrats in the House and Senate have said the governor should ignore the “effective date” clause, which is in the Alaska Constitution, and instead just push forward and sign the budget as it was given to him last week.

But Dunleavy has been criticized by Democrats for “violating statute” by not appointing a judge in time, according to the Recall Dunleavy camp. It’s unlikely he’ll want to put himself in the position where opponents can now blame him for violating the constitution.

“When there is a dispute between branches of government, we need the courts to step in,” said Taylor. “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.”

The motion for summary judgment was filed Monday along with a motion for expedited consideration. The Attorney General is asking for a court decision by noon on June 30.

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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

  • If it your obligation to defend the state constitution, then follow the damn constitution as it’s written out. If it says that if the legislative body didn’t approve an effective date then the law doesn’t go into effect for 90 days. I’m no lawyer or an educated person but that sounds plain and simple. Stop asking the court to interpret the constitution as they see fit, to help them and their democrats masters.

  • The people interpret. Judges don’t practice law from the bench do they? They just ensure court rules are followed. Motion practice with required clauses. It’s a stretch to see judges interpreting by laws of the corporation. The people through their elected representers decide legislative questions. Legislation creation is not delegated to judiciary. If it is now something has become rotten in Denmark again.

  • Democrats want the governor to ignore the State Constitution.
    Why am I not surprised?

  • By the time the lower court’s decision is appealed up, the state will save millions on pink slips alone.

  • Fix the dumpster fire of a budget and PFD by July 1st.
    Problem solved!
    Support SJR6!
    Let the people vote on it!
    An 800 million overdraw from the ERA for one year isn’t going to hurt anyone. Especially since it’s earned more than a billion dollars in the last two or three weeks. The greedy public unions and phony nonprofits, with the execs that make six figure salaries, want that money for themselves.

  • The legislature has time to vote on and effective date and vote on funding a full PFD yet this week…they found the few minutes it took to allow for themselves to be paid for the special session and surely they can get this done and if not, I hope the governor Veto’s anything else they try and after the shut down they can come back again and get it right then..

    • This may just postpone the decision on effective date to wait for this ruling. And the ruling could also be appealed making it entirely possible to have Alaska’s first ever government shutdown over an item that really has nothing to do with the budget.
      This Governor has hung his hat on shutting down our government and you want anything else Vetoed for what reason??? The only reason this court is being asked to rule is because Dunleavy is not doing well in the court of public opinion but anybody’s guess as to the constitutionality of this effective date thing. Why do you suppose other Governors have been able to work around this?

  • Seems pretty simple to me. Follow the Constitution! It’s written in simple English.

  • The legislators create laws but ignores our laws and constitution for political reasons. I thought they took an oath?

  • Of course the governor should follow the Alaska Constitution. How is this even an issue?

    Also, who or what is the Legislative Affairs Agency? How do they have the power to send notice to Legislators and Legislative staff and tell them what the position of the legislature is? Are they an agency of the executive branch, and are therefore speaking on behalf of the Governor? Are they some unelected bureaucracy of some sort?

    Also, can’t the governor still just outright veto this controversial budget? If so, would it then take a 2/3 majority to override the veto? This date stuff is not really getting to the core of the matter, budget-wise, but it could end up being a proper example of how to follow the constitution.

  • Well as long as the legislature and the legislators who passed the bill says it’s ok to violate the constitution, then it must be OK…sheesh, these clowns just can’t help themselves can they? Perhaps had they received the correct amount of votes they could have amended the effective date, but then they would have had to compromise and work with the minority to do that.

  • So let’s Break another law. Just like breaking the law on are Full PFD
    Why have laws if we don’t follow them.
    Wait it’s not a Law, but you better wear your mask, more madness

  • This shouldn’t even be an issue, because the whole budget should have been VETOED, for the reason it violates the constitution in the first place, but no one got the Superior Court involved in on that did they now. Why even waste the paper the constitution was written on if you’re just going to wipe your … with it.

  • The US Constitution is the law. There is no lawful way to “work around it.” If a person receiving a stipend causes disruption in due process they are culpable also.

  • Ignore the state constitution? That’s simply not a legal option. I don’t suppose constitutionality or legality issues are a problem for Democrats or even most Republicans these days though.

  • Now they’re worried about the constitution. VETO it all.

  • Veto it all, especially their per diem. If you can’t get the people’s work done, then you don’t get paid!

  • No money to pay Alaskans for their mineral rights but they have $20k to gathers data on Alaskans’ sexual orientation, vaccine status, tobacco views and more, conducted this month via text by Alaska Survey Research, the questionnaire has gone out to about 2,000 Alaskans who will receive a $10 gift card for participating.

  • Bill,
    When you say it’s “entirely possible to have Alaska’s first ever government shutdown over an item that really has nothing to do with the budget.” You of course mean that the very plain language of our state constitution that has everything to do with the budget, right?
    .
    And when you say “this effective date thing” you of course mean the very plain language of our state constitution thing, right?

    • Except for the fact that this has not been an issue for over 40 years due to AG opinions and Supreme Court rulings that these “plain language of our state constitution” don’t mean what you think they do.
      This will get settled in the Houses and courts but is essentially a waste of time IMO.

  • From a student of Alaska politics:

    1. Part of the problem appears to be the 3 weeks that the legislature took just to get organized.

    2. I read somewhere, maybe on this blog, that House Speaker Stutes was part of the Bryce Edgmon’s “group.” Edgmon is no fan of the governor, right?

    3. Former Governor Walker’s AG was part of the group that started the Dunleavy recall effort, right?

    4. Two other for staff members of Former Governor Walker’s staff are now circulating a letter saying there is no problem with the effective date and that Dunleavy is totally in the wrong. Why does this not look fishy?

    5. Former Governor Walker is supposedly considering running again. Is anyone adding up these “quiescences”?

    6. So, are we seeing the opening salvos of the 2022 Alaska Governor’s race? Will Alaskans see through this or be duped by it?

    Just saying…..

  • Bill,
    Pray tell, if “Laws passed by the legislature become effective ninety days after enactment. The legislature may, by concurrence of two-thirds of the membership of each house, provide for another effective date” doesn’t mean what it says, what exactly does it mean?
    .
    As for some of the myriad reason why this hasn’t been an issue that caught your attention in years gone by are as follows:
    Not all laws are budgets and garner as much attention as this late, incomplete, and flawed budget.
    The budget passed more than 90 before the beginning of the fiscal year.
    Two thirds of the membership of each house voted to a different effective date.

    • I suggest you might look at the “Manual of Legislative Drafting” produced by Legislative Affairs on “retroactivity,” page 33.
      While this doesn’t involve praying, it is pretty clear on the issue. Tell us again why this “gotcha” is important enough to bring the State government this close to shutting down. Perhaps Dunleavy’s office can issue another memo telling these House members to specifically vote no on another attempt at passing an effective date?

  • The state Constitution is the LAW and when governments stop following the LAW, while expecting the citizenry to follow the LAW, you get chaos.

  • Bill,
    You could have just quoted Dermot Cole from his blog since that is what you are talking about.
    .
    You and Dermot should try and re-read that section a few more times…maybe try and understand what it actually says.

  • Bill,
    Just to help you and Dermot out a little here, the section you and Dermot reference section (m) Retroactivity says there are several issues to deal with regarding retroactivity, statutory and constitutional considerations. The first test is if it would have a different legal effect by being applied retroactive, would there be substantive changes to constitutional rights or are they procedural changes that change little or nothing. If they are procedural changes then game on, however if they are substantive changes…well that’s the end of the road friend.
    .
    Section (m) that Dermot references and you allude to says “If there are no constitutional prohibitions against the contemplated retroactivity,” the problem Dermot and you run into is the fact that there is a constitutional prohibition, the aforementioned Article II section 18 that states “Laws passed by the legislature become effective ninety days after enactment. The legislature may, by concurrence of two-thirds of the membership of each house, provide for another effective date.”
    .
    Let’s not forget that this isn’t even about the retroactivity of a legislative bill, this has to do with the future effective date that is still in the future and has nothing to do with days gone by.
    .
    I’m not shocked to see Gunnar Knapp lining up on the wrong side of this either.

    • The manual is what the Legislature’s attorneys are using and you think you understand what it says better than they do? The Courts will determine what this manual is based on and really doesn’t have anything to do with where Gunnar Knapp lines up.
      Superior Court judge has agreed to rule with 12 hours before the deadline so there is enough time for some last minute horse trading-And this has nothing to do with retroactivity or effective date as the only thing it hinges on is the amount of this year’s PFD. Of course the ruling could even be appealed but that guarantees a shutdown and that would require some serious cojones on the losing side of this ruling IMO.
      Keep in mind Dunleavy’s record in his court cases, so far. Heheh!

  • Bill,
    I understand that the legislative lawyers are using this manual, to suggest they are using the retroactivity section that Dermot Cole and you brought up is laughable.
    .
    Now you are saying this has nothing to do with retroactivity after having just claimed that it does, and that it has nothing to do with effective date which is the entire reason why the potential shutdown would happen. The section Dermot Cole and you are referring to is about applying a law back in time (retroactively), the effective date is dealing with a date in the future. You both are looking 180 degrees in the wrong direction, and apparently do not understand the English language very well.

    • Still full of yourself and your understanding of the English language, I see. I’m surprised Dunleavy felt the need to ask the Supreme Court Chief Justice for his views when he could have just given you a call.
      I expect the court to rule on how this manual applies to the legislature’s view on retroactivity vs. Dunleavy’s view. Dunleavy (and you) evidently don’t like the fact that the Legislature’s view has worked for about 40 years and thinks he has a “gotcha” constitutional issue that is worth shutting down the government for. It may well be that the House will correct it’s effective date clause, prior to oral arguments in this litigation, but even if it does it’s possible the court case will still be able to rule on AG lawsuit. The House is more focused on the heading off of this government shutdown by another vote but nothing is guaranteed and these minority members are wanting something for their vote IMO.
      We’ll see in a short time.

  • Bill,
    It’s just the English language and it’s words are well defined, they even make books that define words call dictionaries. Take retroactive for example…
    Retroactive:
    Having reference to things that happened in the past, prior to the occurrence of the act in question.
    .
    A retroactive or retrospective law is one that takes away or impairs vested rights acquired under existing laws, creates new obligations, imposes new duties, or attaches a new and different legal effect to transactions or considerations already past. Common-law principles do not favor the retroactive effect of laws in the majority of cases, and canons of legislative construction presume that legislation is not intended as retroactive unless its language expressly makes it retroactive.
    .
    Retroactive criminal laws that increase punishment for acts committed prior to their enactments are deemed Ex Post Facto Laws and are unenforceable because they violate Article I, Section 9, Clause 3, and Section 10, Clause 1, of the U.S. Constitution and comparable provisions of state constitutions.
    .
    The issue at hand is the effective date that is in the future, this isn’t retroactively applying a law.

    • I’m sure you’ve offered your services to AG in his upcoming oral arguments over this. It could make a difference, yet most all stops are out to change that effective date before July 1.
      Like I said earlier we’ll see soon enough.

      • Tough slog but the vote cleared an effective date of July 1 avoiding a government shutdown, unless Dunleavy has some other cards up his sleave.
        Oral arguments tomorrow on AGs lawsuit and we’ll get to see if Steve-o, with his plain English ideas, gets called as a friend of the court. Looking forward to it. Heheh!

  • State taxes please. Most people will be better off. Y’all deserve a better standard. Imagine the ‘blessed’ ones contributing back to the state that gives them so much. They won’t without guidance. Greed is a virus.
    Anyone see how the feds covid relief tapers off at high incomes.
    Anybody want to explain why I see millionaires collecting state welfare(99647) and pfds? Go ahead but there is no good reason for it. I won’t be returning to the comments.

  • F you moderator

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