The Legislature is ready to sue if Dunleavy follows through on threat to withhold K-12 funding

Senate President Cathy Giessel and House Speaker Bryce Edgmon speak at a joint news conference on May 28, 2019. Both chambers approved motions that would ready the Legislature to sue the governor if he refuses to disburse school funding.

Update: In an afternoon news conference, Dunleavy repeated his request for the Legislature to create a new appropriation for education. If the Legislature does that, then he said he wouldn’t stand in the way of a bulk of the funding going out because it would have a “valid appropriation” in his eyes. He said he may still withhold a portion of $30 million of one-time funding that was also approved in last year’s budget to “initiate a friendly lawsuit.”

If Gov. Michael J. Dunleavy wants to withhold education funding because he thinks it may be unconstitutional, the Legislature is ready to sue.

In a show of unity today, the House and Senate both approved measures that would allow the Legislative Council to move forward with a lawsuit against the administration if it follows through on the threat to hold K-12 funding hostage pending a legal challenge.

The administration contends that the Legislature unconstitutionally dedicated future revenues when it included education funding for the upcoming year in last year’s budget. The Legislature has generally been disinterested in this argument, particularly because creating a new appropriation for school funding would also make it open to Dunleavy’s veto.

The governor initially proposed a 25 percent cuts to schools but has since pledged to not cut it this year.

While it would take a lawsuit to invalidate the forward funding language from last year’s budget, the Dunleavy administration indicated last week that it plans to ignore the law and withhold payments to local school districts. Those monthly payments are scheduled to begin on July 15 and nonpayment could cause immediate problems for districts statewide.

The common line from legislators on Tuesday was that escalating the fight by withholding funding—and throwing districts into disarray—would be Dunleavy’s choice. Legislators stand by last year’s budget as a valid mechanism for funding and argue that it’s valid until it’s struck down by a lawsuit. There’s no law requiring the governor to ignore laws he thinks may be unconstitutional.

“We’re right and we know we’re right,” said Rep. Tammie Wilson, R-North Pole. “If you want to take it to court, we’re going to because Alaskan teachers and Alaskan students are first and foremost.”

Other legislators have described the potential lawsuit as a “friendly lawsuit” to help settle the issue of whether forward funding items with future revenues in the general fund is constitutional.

There was some opposition to the motions put forward by the pro-Dunleavy minority House Republicans. Rep. Lance Pruitt, an Anchorage Republican whose wife has a communications contract with the governor’s office, argued against the lawsuit, saying if the Legislature lost it would make the body look “foolish.”

In a rare joint news conference between the House and Senate leadership supporting the motions, Senate President Cathy Giessel said it’s not just about schools, but about defending the Legislature’s constitutional authority over the budget as well as affirming the governor’s duty to enact and follow the laws.

“It is critical that we prevent those pink slips going out. ‘Stable and predictable,’ that’s what our industries ask for. It seems reasonable to extend that to our education system as well, it being a constitutionally mandated public school system that this government needs to fund,” she said. “At the same time equally important is the legislative authority to appropriate funds and then the governor execute the laws that are passed by this Legislature.”

She said one of the objectives of the lawsuit would be to get a court order requiring the governor to release the funds potentially ahead of the resolution of the case.

The motions on Tuesday officially delegate the decision-making on such a lawsuit to the Legislative Council, a 14-member committee with the leadership from both chambers that’s chaired by Sen. Gary Stevens, R-Kodiak. The council typically takes on some responsibilities of the Legislature when the full Legislature cannot meet.

Mixed messages

The governor held an afternoon news conference to touch on the issue, creating some confusion around his position.

There, he said there’s an easier way for the Legislature to resolve the issue over the constitutionality of forward funding without disrupting schools: By focusing the fight over $30 million in one-time funding that was approved alongside the bulk of school funding.

“We don’t want to go into a constitutional issue here where there’s potentially no funding for education on July first. This causes a problem for the entire state,” he said.

The suggestion created confusion, leading some to believe that the governor was saying he would allow the bulk of school funding, which is distributed through the state’s foundation funding formula, go forward regardless of what the Legislature does. It would have constituted a major reversal in position. He was pressed on the matter multiple times, finally saying:

“We need to have them fund it. We need to have them fund the budget. What I’m saying is there’s probably an easier way to get clarification and that is to hold a small portion of the funding just initiate the suit so we can get clarification,” he said. “We would like to see the thing funded in a manner we think it should be funded.”

It still doesn’t offer much concrete clarity about his position, but it doesn’t appear to be a reversal of course. Unless the Legislature retreats from its position, the governor still intends to withhold all school funding.

Asked why the Legislature and public should trust him to not veto the money when he broke a similar promise not to cut the ferries, Dunleavy said “because I won’t.”

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