Courts deliver Dunleavy administration two more legal blows

Gov. Michael J. Dunleavy, Commissioner Kelly Tshibaka and Attorney General Kevin Clarkson announce legal action against public sector unions on Sept. 27, 2019. (Photo by Governor's Press Office)

In a week that’s been all about lawsuits and legal challenges, Attorney General Kevin Clarkson and the Dunleavy administration were handed two more losses this week. Both halted the administration’s attempts to rush things through the legal process.

On Tuesday, a Superior Court Judge denied the state’s request to end the lawsuit over the collection of union dues and in doing so issued a preliminary injunction against the state’s efforts. The same day the Alaska Supreme Court also rejected the administration’s request for an “emergency” hearing in order to put a halt to the ballot initiative group’s signature gathering efforts.

The losses come in a week where a former state attorney helped bring a class action lawsuit against the state for rate increases to the Pioneer Homes, where the Recall Dunleavy group took the state’s rejection of its recall application to the courts and where the state made an uninspiring debut in oral arguments over the constitutionality of Dunleavy’s politically motivated vetoes of the court budget.

Let’s break down the two losses.

Delayed by a roadblock

Much has been said about the state’s decision to contract out its lawsuit against public sector unions to a right-wing law firm whose most notable claim to fame is arguing that President Trump is above the law. The state is sought to spend up to $125,000 to have Consovoy McCarthy argue the case and has already put some $50,000 for the case. It reached the legal limits of a no-bid contract and today put out a request for proposal for the litigation with an upper cost of $600,000.

The latest ruling doesn’t make it appear that the state is getting its money’s worth.

[PDF: Read the latest ruling]

The case is an effort to meddle with the collection of union dues for public sector unions and is based on what Superior Court Judge Gregory Miller has already said is an incorrect reading of the U.S. Supreme Court Case Janus v. AFSCME. Miller granted the Alaska State Employees Association a temporary restraining order against the state on Oct. 3.

Since then, ASEA has asked to convert the temporary restraining order into a preliminary injunction.

The state, for its part, has asked the court to render a final verdict on the case so the state can move on with appealing the case (it’s long been thought that this case is an attempt at a national precedent-setting test case and this would support that theory).

The impact of closing the case is not just the opportunity for the state to hurry the case along, but it would also essentially render many of the ASEA’s counterclaims moot and prevent the ASEA from discovery, which would give them access to internal communications and deliberations on the effort.

The state also argues that the preliminary injunction should be denied, that the state should win the case and that ASEA’s counterclaims should be dismissed.

ASEA opposed the effort.

Miller agreed, noting that the state’s latest filings didn’t even attempt to make a convincing case.

“The state’s arguments are not well founded,” explains Miller, later adding, “The state offers no legal authority for this novel argument—that having lost at the TRO stage and offering no new arguments at the preliminary injunction stage—that the preliminary injunction should now be denied, that final judgment should be entered in favor of the State and that ASEA should not be permitted to pursue discovery or a determination on the merits of all five of its counterclaims.”

The order also outlines some of the ASEA’s counterclaims, noting that “ASEA also seeks discovery to determine at least the truthfulness of the State’s representations in its complaint and TRO opposition as to whether union members actually approached the state to ‘help them with this union dues issue.”

The state is also complaining that ASEA’s counterclaims are just an attempt to run up attorney fees, a claim that Miller was also not particularly convinced by.

“It was the state that filed this case, not ASEA,” he wrote.

A roadblock delayed

The second loss from this week is the Alaska Supreme Court’s denial of the state’s request for an “emergency” hearing on the election reform ballot initiative group’s signature gathering efforts. The state has sought to kill the initiative by arguing that its three main platforms—ranked-choice voting, group primaries and campaign finance reform—should all be separate initiatives according to a unprecedentedly strict reading of the single-subject rule.

Last week, a Superior Court Judge ruled that all three items were, in fact, related to election reform—noting that precedent calls for a broad reading of the single-subject rule—and that the signature-gathering effort should be able to move forward.

The state immediately appealed the order to the Superior Court, but that was rejected and signature booklets were issued on Friday.

[PDF: Read the Supreme Court order]

Since then, the state has requested an “extremely expedited” briefing and argument schedule that sought to reach oral arguments by Nov. 14. The court rejected the motion, writing that it “agrees that the matter should be expedited, but not to the extent that the appellants requested.”

The Supreme Court’s order also goes on to say, “As always, we will give full and fair consideration to this appeal’s legal merits, including Appellants’ stated intent to ask us to reverse long-standing precedents.”

Why it matters

The Dunleavy’s time in office has been marked by several high-profile lawsuits challenging Attorney General Kevin Clarkson’s “novel” interpretations of state law, the Alaska Constitution, the U.S. Constitution and recent U.S. Supreme Court rulings. This week is seeing a lot of those cases move from theory into reality and it hasn’t been so pretty.

The rulings on the union dues cases are a particularly bad look for an administration that farmed out the cases to a national right-wing law firm. Superior Court Judge Gregory Miller’s latest order on the case takes the state to task for not even really trying, noting that nothing in the state’s latest filings supported their position.

ASEA reaching discovery in this case could be particularly damning, especially when ASEA is seeking to test the honesty of the administration in its claims.

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