Alaska Supreme Court rules Dunleavy could keep appointments on the job, strikes law rejecting them

Gov. Mike Dunleavy during a September 2020 town hall. (Photo by Governor's Office/Flickr)

After hearing oral arguments in a lawsuit over a pandemic law that sought to reject all of Gov. Mike Dunleavy’s appointments if the Legislature didn’t take up action by mid-December, the Alaska Supreme Court has struck down the law as unconstitutional.

In a motion issued today, the court found that the only way the Legislature may reject the governor’s appointments is “by a majority of the members of the legislature in joint session.” The decision not only reverses a Superior Court decision that found the Legislature has the right to determine the process of rejecting appointments, but strikes down as unconstitutional a portion of an existing law that found any appointments not acted upon during the course of session would be rejected.

The ruling stems from a law passed as legislators rushed to adjourn from session amid the beginning days of the pandemic. Typically, the Legislature deals with appointments in a typically day-long joint session where all 60 legislators cram in onto the House floor to take up or down votes on many dozens of appointments. The law said if the Legislature failed to take up the appointments by Dec. 16, 2020, then it would be tantamount to a rejection of all appointees. Normally, the law would see those appointments as rejected if not acted upon by the end of the session.

Though Dunleavy signed the legislation, on Dec. 17, 2020 he informed legislative leadership that he was keeping everyone in place because he viewed the appointments as valid under the reading of the Alaska Constitution. He argued that the Legislature must hold an up or down vote on the appointments.

The Legislature’s attorney Megan Wallace argued against the governor’s reading of the constitution, arguing that the Legislature was granted wide latitude on how to conduct its business by the drafters of the constitution. Wallace also argued that siding with the governor’s reading of the law, would essentially turn the confirmation process into a rejection process.

The Alaska Supreme Court agreed with the governor, striking down the portion of the existing law that dealt with the rejections at the end of the session.

“Appointments requiring confirmation therefore remain in effect until the Legislature acts on them in joint session,” explained the ruling.

Though the court’s ruling does not go into detail about the decision—a full opinion is expected later—the Supreme Court Justices during the oral arguments questioned just how far the Legislature would be able to go with rejecting appointments if they sided with the Legislature, wondering if the Legislature could somehow hand over the confirmation powers to an individual legislator or committee.

Why it matters: The immediate impact of the lawsuit means actions taken by the appointees during the window cannot be invalidated on the grounds that the appointments were unconstitutional. Though the Legislature had not sought to directly invalidate any actions, several taken by the Alaska Industrial Development and Export Authority related to the controversial Ambler Road and Arctic National Wildlife Refuge leases could have been called into question by other groups.

In the big picture: Much of the two and a half years of Gov. Mike Dunleavy’s time in office has been an exercise in testing just how far the powers of the country’s most powerful governor’s office can reach while also seeing just how far those powers can creep into the Legislature’s realm. While this lawsuit was a win for the governor, he’s been more frequently dealt losses in such cases when they reach the Alaska Supreme Court.

There’s a second case still pending, which was argued last week, that relates to the constitutionality of the Legislature’s efforts to forward budget education spending. There too, the Alaska Supreme Court has questioned just how far such a power could extend and whether the Legislature could, for example, forward fund education or the dividend far into the future.

The ruling

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