Why I sued the state over release of COVID-19 funds - Must Read Alaska
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Wednesday, September 30, 2020
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Why I sued the state over release of COVID-19 funds

By ERIC FORRER

On May 14, I filed suit against the commissioner of the Department of Revenue. The state was preparing to release in excess of one $1 billion of federal emergency funding on the basis of recommendations made by a single legislative committee.

The funds had never been appropriated by the full Legislature, as required by the constitution.

This action was so clearly unconstitutional that several members of the Legislature warned against it, as did the legislative legal office. The Legislature was in session but had been in prolonged recess, and it was apparent that they were prepared to let the responsibility for spending the funds go to the committee and the governor, abdicating their constitutional duty.

This threatened action had, and now has, potential for long-term harm. Our constitution is the basis for a stable society, with everybody operating under the same rules.

If leadership willfully creates structures that are plainly unconstitutional, then different populations in the state are living under different rules. There is a word for this, if it escalates: it is tribalism.

There are ghastly shadows here, like Rwanda. State leadership consciously solving political problems by creating unconstitutional structures is a dereliction of duty, a violation of their oath of office to support and defend the constitution, and constitutes treasonous behavior.

In some fields of endeavor, notably politics and law, things are not always what they seem. So when I filed the suit against the impending actions of state leadership, what was it? Was it an attack? Was it an attempt, as virtually every newspaper headline said, to prevent the federal funds from being distributed to the people? Was it somehow trivial and or self-serving, as claimed by members of the Legislature?

No. What it was, in fact, was a gift — the gift of a political tool to the leadership of the Legislature. Using the threat of the suit, they were able to summon the will to convene the legislature after a 50-day recess, something that had not been possible in the crisis atmosphere.

Given this very real crisis, you would think that the members of the Legislature and the administration could gather the courage, the intellectual capacity, and the political will to dispense the funds in a constitutionally appropriate manner. It is in their and the state’s interest to have a long term defensible and constitutionally conforming track record.

As far as the use of the suit as a political tool was concerned, it almost worked. But, sadly, pathetically, they just couldn’t relinquish their decades-long habits of ideological battle and their refusal to cooperate with each other for the sake of Alaskans. What crisis? Better to complain about having to do the job they wanted to get elected to do and stage a charade session with no content.

Both houses passed unconstitutional law to underpin the release of the emergency money. The legislation is unconstitutional because it is not an appropriation bill as clearly laid out in the constitution. Instead, the legislature did something they called “ratifying” the existing committee work. But “ratification” is not found in the constitution. Ratification has no legal or constitutional definition, was invented on the spur of the moment, and does not contain any of the protections that an appropriation process provides.

Not all the leaves have fallen from this tree, and we’re into a long game now.

The threat of unconstitutional solutions to political problems will escalate. Will the governor be able to do whatever he wants, claim “need” and “extreme time pressure,” and get it “ratified” by a compliant Legislature after the fact?

Alaskans should not tolerate this. Instead of bringing out the desperately needed better angels of political leadership, the world health and financial crisis will become a partisan tool, the public welfare be damned.

For this reason I will proceed with the lawsuit in the expectation that the courts will make it clear that the legislature cannot shirk their duty under the constitution.

I make prayers to the Raven that we will be able to stop the use of unconstitutional political chicanery and the consequent dangerous slide into tribalism.

Eric Forrer is a Juneau resident.

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  • Eric is right the legislature did act in an unconstitutional manner and did not have to do it that way but this legislature has show disrespect for the law and bent the rules over and over…it should give all citizens great pause.

  • The State has absolutely no limits put on it by this so-called Constitution. Read Article 12, Section 8. “The enumeration in this Constitution of specified powers, shall not be construed as limiting the powers of the State”. It says right there that the State has unlimited powers!!!!! So what are you complaining about????? Just sit back and enjoy your Communist/Fascist/Nazi State.. Seymour Marvin Mills Jr, sui juris

    • This Legislature only breaks laws it it knows Democrats will not sue over, and that it’s backers will.

  • Why not sue the legislature for breaking the law concerning the payment of our Permanent Fund Dividends? Why is the Governor not taking the legislature to task on the matter of upholding the law passed in 1980? The law requires the payment of our Fund’s Dividends. Why is this not being done?

  • Maybe the writer should look at the Legislature’s shirking the Constitution on the PFD, which was already in the Constitution but has been ignored so that they could steal the wealth of the citizens of the state to line the pockets of their crony special interest.

    • There is no PFD in the Alaska Constitution. Jere

  • Thank you, Mr. Forrer, for recognizing the dangers and calling them out. The 29th through the 30th Legislature has been led by those who believe in far too much spending. Sadly, they do not even recognize it.

  • If Mr. Forrer is so concerned about “state leadership consciously solving political problems by creating unconstitutional structures,” where was he with this “gift” he so graciously gives last summer when legislative leaders ignored our Constitution and went to Juneau for a session that was legally held in Wasilla? Where was he year after year when the legislature ignored the PFD calculation statute? Who is the real political trickster, Mr. Forrer? Let me get you a mirror.

    • In regard to having the legislature come into special session, the governor can required the legislature meet in special session but the Alaska Constitution is silent on where, at what time and other matters reserved for the law making branch of our government. The legislature has a duty to convene at the call of the governor or according to their own will as is set out in the constitution. But the legislature gets to select location and other matters related to how the legislature conducts their business.
      In regard to the legislature having “ignored” the statutory PFD formula, take a skim or even a deep dive in the Wielechowski case by the Alaska Supreme Court. The court, when interpreting whether the PFD was a required to be paid according to the statutory formula decided the PFD was not a permissibly dedicated and that the PFD had to compete with all other appropriations as required by Art. IX, Sec. 13 of our constitution. This is no different than any of the other statutory formulas enacted by our legislature that allocate revenue, e.g., the school foundation formula, the municipal debt formula, the formula for paying back the so-called oil exploration tax credits, etc., etc. None of the statutory formulas create a constitutional demand that jumps them to the head of the line when the legislature enacts the annual budget. Whether you like the result of the case decided by the Alaska Supreme Court or not, the ruling stands. The Permanent Fund is embedded in the Alaska Constitution, not the PFD. That is why some of us are seeking to put a decent PFD formula into the constitution. Are you? Look in the mirror, BL, and answer that question.

  • Mr. Forrer,
    Where were you when Bill Walker limited our statutory PFD dividend?
    Where were you when this legislature tortured the statutory dividend and instead appropriated full funding back to the state operating budget?

  • If he’s trying to convince me that this legislature is lazy, corrupt, and has zero regard for laws, the constitution, and least of all the citizens of Alaska- I was already there- but well said anyway.

  • Everybody knows the “Law” can be used both ways, either to facilitate what needs to be done or to hinder it. Everybody knew the money needed to be distributed. In a perfect world it would be distributed without partiality or waste.Government exists mainly as a benefit to the law abiding people never to be a detriment exceptbyo those who will break the law. In this case I see no reason to hinder what needed to be done. Not by the legislature and not by this gentleman.

    • So, Mr. Sloan, you are, perhaps, a person who views the express provisions of the Alaska Constitution at Article IX, Section 13 as merely aspirational and to be ignored or discarded when convenient? And what is your authority for “everybody knows” statement. Did you pick that sentiment in a coffee shop or somewhere on the internet?
      Read the Alaska Constitution sometime and decide whether it is applicable before running your yap like some dog barking at the moon.

  • I make prayers to the Bull, BS!

  • We see you Mr. Forrer. The ghostwriter left his fingerprints all through your letter…. except for that kooky part about praying to a raven… maybe that was actually your idea. Rather obvious, really.

  • Delusions of grandeur. This guy doesn’t like how they appropriated the funds, even after they bent the knee to do away with his political charade of a lawsuit. Eric, if you don’t like how your elected representatives are representing you, then you should run for political office and change it. They did what you wanted, but not how you wanted it done? The old saying about seeing how sausage is made is appropriate here.
    .
    It’s obvious to even the most casual observer that many in this current legislature aren’t fit to serve, they have been disfunctional from the get go. The leadership has shown time and time again that they are incapable of leading and doing what is right for the people of Alaska. On second thought, good on ya for suing Eric, the leadership of this legislature needs to be brought to heel.

    • Read Article IX, Section 13 of the Alaska Constitution.
      Recall that the presiding officer of the Alaska Senate repeatedly said the measure enacted last week divvying up over $1B in federal money for pandemic relief via the CARES Act was “not an appropriation.”
      Then, give us your considered opinion. Forrer’s lawsuit has nothing to do how the federal dollars were allocated but everything to do with the fact that the measure passed by the legislature was inconsistent with express constitutional requirements requiring funds be allocated to an appropriation.
      You apparently are content to ignore the constitution. Forrer is not willing to let the constitution be ignored and consigned to oblivion.

      • Joe,

        I’m not sure the court of public opinion is where you should be trying to fight your…errr your clients case, but you do you. Article IX Section 13 says “No money shall be withdrawn from the treasury except in accordance with appropriations made by law. No obligation for the payment of money shall be incurred except as authorized by law. Unobligated appropriations outstanding at the end of the period of time specified by law shall be void.” This was done, perhaps not in the fashion you…errr your client prefers but the legislature made an appropriation after your…errr your clients lawsuit.
        .
        Why don’t you just tell us where you…errr your client wants the legislature to spend the monies that are to be spent in a very specific manner and a very specific time frame per the Federal government who originally appropriated the funds?

  • Maybe, an Amicus brief could open this up to the other issues, or this may set the stage for court challenges regarding the PFD depending upon how the court decides, although, that was tried during Walker’s time.
    One thing is for certain, this train we call the State gov’t is off the tracks. It holds itself above the law and fails to follow the law, especially the Legislature. Incredible.
    Giessel and Edgmon have some powerful ju ju going to get so many to go along with ignoring the very statutes they are empowered to legislate into being.
    However, in this case, it is the governor who stands idly by and ignores the slights to the Constitution and the rule of law. That is what bothers me.

  • I guess I would support Eric but where was he when more egregious constitutional violations were happening during COVID by taking our first amendment rights away from WE the people?

  • So, after suspension of all the individual freedoms assured by the constitution, this guy is suddenly imbued with righteous indignation that someone would deign to have the temerity to make a decision without his personal stamp of approval? Gimme a break! Forrer is just pissed because the money wasn’t all directed to bail out Southeast, since all the cruise ships aren’t showing up this year. I have listened to people in Southeast complain about Cruise ships for decades. Well, now they get their wish. Deal with it.

    • If you take the opportunity to read the legal complaint and documents filed by Forrer, it would be obvious Forrer is not seeking to allocate the money towards any particular city or sector of Alaska. All he seeks is that the legislature comply with Article IX, Section 13 of the Alaska Constitution. How is that wrong or are you another individual who is willing to discard constitutional principles in the interest of expediency?

      • Still weighing this out, with an open mind, Joe. But thanks for keeping MRAK ahead of the curve. Best.

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