‘This is a direct attack.’ ACLU argues Dunleavy’s court vetoes must be reversed

Anchorage Superior Court Judge Jennifer Henderson heard two very different arguments on Tuesday, which marked the oral arguments in a lawsuit seeking to overturn Gov. Michael J. Dunleavy’s politically motivated vetoes of the Alaska Court System.

Dunleavy cited a recent Alaska Supreme Court ruling that threw out an abortion law in his veto of $334,700 from the Alaska Court System. The state argues that the veto was well within his constitutional power to issue vetoes, while the ACLU of Alaska argues that such a politically motivated veto threatens separation of powers and the independence of the courts.

In the roughly hour-long hearing, Henderson was presented with two very different sides.

On one side was the ACLU of Alaska, whose attorney Stephen Koteff made an impassioned argument for why the courts must reverse the politically motivated veto of the court system as a matter of principle in preserving the core tenets of modern democracy.

On the other side was a seemingly under-prepared state of Alaska, whose attorney Jessica Leeah spent most of the time arguing to dismiss the case, about why the courts shouldn’t touch the issue and why the ACLU of Alaska wasn’t the proper litigant. The state is asking the court to dismiss the case.

The state’s main argument comes down to the fact that the power of the veto rests with the governor. Leeah argued that vetoes are inherently political and that the courts should stay out of deciding political battles.

Leeah said the ACLU is essentially asking the courts to take on the power of the Legislature to override the veto, which it didn’t. She said that was the true separation of powers issue, not the governor’s veto.

“So what plaintiffs are asking you to do is to step into the shoes of 45 legislators and that is problematic, that is a separation of powers issue,” she said. “The governor and the state would ask you to exercise judicial restraint and not jump into the political fray.”

Koteff argued back that just because someone has the power to do something, doesn’t make everything they do with that power legal. He said a driver’s license doesn’t permit someone to act as a getaway driver in a bank robbery.

“The same applies here. It is not a defense that because the governor had the authority to do something that he can exercise that authority in some unconstitutional way,” he said. “It’s about what the governor does with his authority that matters and when he does exercise it in an unconstitutional way, this court has the authority to weigh in.”

He also countered that the courts have a long history of weighing into seemingly political fights when it’s asked to judge the constitutionality of a law that was passed by the Legislature and signed by the governor (as it did with the abortion law).

“Just because the executive and the legislative had a role to play in a particular action does not make it any more constitution or otherwise shield it from judicial review. In fact, it happens all the time that courts weigh in where both the executive and the legislative branches of government have been in agreement, or perhaps not, or where they have acted in concert or acted independently,” he said.” There’s no better example of that when the court finds a statute unconstitutional.”

Leeah also acknowledged that the major problem with the veto was the statement that connected it to a political position.

“The only issue is that the governor added a political statement to it,” she said. “If he had more a benign statement, he could have vetoed that money and there would be no issue at all.”

She argued that it is ultimately not a major concern because there’s no evidence that the court system has been crippled by the cuts. And it’s on that ground that Leeah also argued that the ACLU doesn’t have standing to bring the case. She said it would be more proper for the people directly involved with the court system—judges or court employees—to bring a lawsuit as individuals harmed by the decision.

Koteff responded to questions about ACLU’s grounds to sue, saying that the core issue is about the independence of the judiciary and that it rises to the level of broad public interest. It’s here that Koteff made his most impassioned argument for why the courts must weigh in on the issue.

“The importance of this court’s independence can almost never be overstated. The original framers of the constitution recognized without checks and balances that we as citizens lose our liberty. The courts must act to protect their dignity, their independence and their integrity,” he said. “These are the concepts that are at the core of court’s inherent powers.”

He quoted from prior court decisions, noting that “‘Courts frequently have to rule upon the acts or the refusals to act of those controlling the purse strings in delivering justice. They cannot allow threats of retaliation or fears of strangulation to hang over such judicial conduct.’

“This court must act in this case. It must not allow these threats to hang over it. Not acting invites further retaliation. Not acting sends a message that the court system can be cowed. It sends a message to future litigants that they can go to the governor or the legislature for political retribution and punishment of the court. Not acting leaves undisturbed the notion that justice in the courts is not final until the executive decides what price to put on it,” he said. “This is not our system of government, your honor, it’s not what our constitution means to those who believe in democracy.”

Henderson didn’t issue a decision from the bench on Tuesday. She said she will need additional time to review the arguments and case law before offering a ruling.

Why it matters

There’s a lot of takeaways from Tuesday.

First, in a week that seems to be dominated by court battles between the state and various litigants whether it be the Recall Dunleavy group, the ballot initiative group, public sector unions or Pioneer Home residents this wasn’t a particularly strong showing for the Department of Law.

The state’s position essentially seemed to boil down to: “It’s politics, so the courts need to butt out.”

And the arguments for dismissing the case appeared weak next to an impassioned call to preserve the core underpinnings of democracy, especially at a time when Alaska Supreme Court Chief Justice Joel Bolger is asking for people to help defend the court system from political pressure.

Bolger’s address to the Alaska Federation of Natives’ annual convention actually featured heavily in Tuesday’s proceedings. Koteff said it was a key statement to be considered in this case while Leeah argued that the speech could have been about anything, such as judicial retention votes.

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