Legal memo says Alaska Constitution supports defying governor’s Wasilla special session

Update: The Dunleavy administration and Attorney General Kevin Clarkson have continued to escalate this issue. The latest from Clarkson is a suggestion that the administration could sue individual legislators and use the Alaska State Troopers to round up legislators and force them to attend a Wasilla special session.

The Alaska Constitution may be on the side of legislative leadership as they hope to buck Gov. Michael J. Dunleavy’s order for them to meet in Wasilla for the July 8 special session and instead spread meetings between Juneau and Anchorage.

A legislative legal memo about the issue notes that the governor’s power to designate a location for the special session rests in statute passed in 1982 and argues that it may not stand up to a constitutional challenge. If it’s left up to the Alaska Constitution alone, the legal memo argues that the plan to move the session to Juneau with meetings in Anchorage is supported.

The memo specifically examines the statute AS 24.05.100(b), which was passed in 1982. It’s this law that the governor has cited when saying the decision by legislative leadership “has no legal basis.” The reference to a special session called under (a)(1) is a reference to a special session called by a governor with (a)(2) being one called by the Legislature:

The legal memo recognizes that the Legislature didn’t contemplate a scenario where the governor wouldn’t be working with the Legislature to agree upon an acceptable location for the special session. The current Legislature has raised concerns that the Wasilla Middle School, the venue Dunleavy has picked for the special session, has a litany of issues ranging from security issues to the ability to create quality, complete and unfiltered recordings of the proceedings.

The memo also notes that the current scenario is unprecedented. A governor has never called a special session outside of Juneau and the Anchorage special sessions were all initiated by the Legislature.

The memo goes onto note that the law could be at odds with the Alaska Constitution’s mandate that the capital is Juneau and notes that “the constitution is silent as to the location of a special session called by the governor.”

“It is very possible a court could find the mandate in AS 24.05.100(b), that the governor designate the location of a special session called outside the capital, unconstitutional because (1) it goes beyond the constitutional power granted the governor to call a special session under art. II, sec. 9, Constitution of the State of Alaska; (2) the legislature must meet in the capital unless it is impossible to do so under art. XV, sec. 20; or (3) the location of a special session is a matter that can be ultimately decided only by the legislature under the separation of powers doctrine,” explained the memo.

The memo also argues that the Legislature must meet in the capital even though the Alaska Supreme Court has ruled that the capital can be moved by law, not requiring an amendment to the constitution.

The final argument raised by the legal memo deals with the Legislature’s ability to oversee its own proceedings. It notes that the Alaska Constitution says each chamber of the Legislature has oversight over its rules and procedures through the adoption of its uniform rules. Though the location of a session hasn’t been deemed to be within those powers because the matter hasn’t made it to the courts, the memo argues that it should be.

“If the doctrine of separation of powers generally prevents the courts from interfering in matters of legislative procedure, then it should certainly prevent the governor from interfering in matters of legislative procedure,” argues the memo. “No Alaska court has considered whether the location of a single legislative session is a matter of legislative procedure, although it is clear that venue is a procedural matter in the context of the judiciary. Certainly, the court might be willing to accept the proposition that the place the legislature convenes is procedural, much like questions of venue are procedural for purposes of litigation.”

The memo notes that this line of attack isn’t necessarily bulletproof, but it argues that other issues like the fact that it’s ultimately up to the Legislature to organize and pay for a special session requested by the governor should make a compelling case for why the law giving the governor the power to decide a location is unconstitutional.

“To preserve the legislature’s independence, a court may ultimately find it a violation of the separation of powers doctrine to give the governor the power to establish the location of a legislative session,” explains the memo.

One thing that the Alaska Constitution is clear about is that the governor cannot sue the Legislature. If the governor wants to enforce his call for a Wasilla special session, it would be up to another group to bring the legal fight against the Legislature to enforce the 1982 law. It’s there that these constitutional issues would be brought up and tested.

Still, the legal memo concludes with urging the Legislature to balance the interests.

“Any decision as to where to convene this special session will ultimately require a balance of the litigation risks with the need to preserve the legislature’s independence and resources in determining the location of its sessions,” it says.