The Alaska Constitution explicitly bars the governor from suing the Legislature. In 2001, the Alaska Supreme Court ruled that prohibition extends to the governor suing the Legislative Council, a key legislative committee. But what if the Attorney General sues the Legislative Affairs Agency? That ought to be fine, the state argued in court last week.
Well, it turns out that’s unconstitutional, too.
At least it is under the specific circumstances of the lawsuit brought by Attorney General Treg Taylor against the Legislative Affairs Agency, which Superior Court Judge Herman Walker Jr. dismissed today in a ruling that cut through the state’s attempts to paint the clear attempt to skirt the Alaska Constitution as constitutional.
“Although Attorney General Taylor has the common-law power to bring suits to enforce compliance with Alaska statutes, his pleadings and the public statements of Governor Dunleavy and himself indicate that the present suit is in reality an action brought ‘in the name of the state’ and ‘against the legislature,’ and is prohibited by Section 16 of Article III of the Alaska Constitution,” Walker wrote in the conclusion of his order.
The governor shall be responsible for the faithful execution of the laws. He may, by appropriate court action or proceeding brought in the name of the State, enforce compliance with any constitutional or legislative mandate, or restrain violation of any constitutional or legislative power, duty, or right by any officer, department, or agency of the State or any of its political subdivisions. This authority shall not be construed to authorize any action or proceeding against the legislature.Alaska Constitution, Article III § 16
The lawsuit’s underlying issue stems from a dispute between Gov. Mike Dunleavy and the Legislature’s leadership over the budget and when it goes into effect. The Legislature argued, essentially, that budgets are treated differently under the Alaska Constitution and don’t require the supermajority vote needed to make them immediately effective. The governor argued budgets are no different, pledging to shutdown government unless the Legislature reached the votes necessary (a move that he hoped would give his allies more leverage in last-minute negotiations (it didn’t)).
The Legislature eventually reached that vote, but it left the underlying issue unresolved, potentially throwing future budget negotiations into uncertainty. However, before the court could get into that issue, it first had to rule whether or not the lawsuit itself was even permitted by the Alaska Constitution.
Throughout the process, the governor and Taylor questioned the budget’s constitutionality and made several statements about wanting to see the issue resolved by the courts, including statements that seemed to indicate the governor was directly ordering Taylor to file the suit. In a press release, Taylor said “When there is a dispute between branches of government, we need the courts to step in,” and during a news conference Dunleavy said, “the third branch of government needs to step in and resolve this dispute.” Those statements were relied heavily upon by the Legislative Affairs Agency’s attorney in arguing the lawsuit was unconstitutional.
During oral arguments, the state’s attorney said the court should ignore the public statements of Dunleavy and Taylor—including Dunleavy’s letter directly to now-former Supreme Court Chief Justice Joel Bolger asking him to weigh in on the issue—when considering whether or not the lawsuit was an independent action by Taylor or at the order of Dunleavy.
Walker did not.
While he noted that there may very well be cases where the Attorney General can bring lawsuits against the Legislature, he said everything surrounding this case makes it a clear attempt to skirt the Alaska Constitution.
“In this case, Attorney General Taylor’s pleadings and public statements belie any assertion that this suit targets the LAA only in its service-agency capacity. First, his complaint seeks a sweeping declaratory judgment that ‘any expenditure of state funds without an effective appropriation’ is unlawful. It speaks of ‘state funds’ as a whole, and makes no mention of LAA,” Walker wrote. “Second, Attorney General Taylor’s and Governor Dunleavy’s public statements consistently framed the suit as a vehicle to resolve a dispute between the executive and legislative branches.”
While Walker’s ruling indicates that he believes the underlying dispute over the budget’s effective date warrants resolution, he found that the constitutional issues with the lawsuit itself were too much to ignore. He wrote that allowing the lawsuit to proceed based on the Taylor’s argument that he was acting independently would create “a constitutional loophole” that would render the constitution irrelevant.
“This argument raises serious constitutional problems,” Walker wrote of the state’s thinking. “The Attorney General is supervised by and serves at the pleasure of the governor. If the Attorney General’s statutory and common-law powers allow him or her to bring suits against the legislative branch, the governor could evade Section 16’s prohibition and sue the Legislature whenever he wished simply by directing the Attorney General to bring the suit himself. Attorney General Taylor’s argument introduces a constitutional loophole that will make Section 16’s limitation on the governor’s authority completely nugatory.”
What’s next: Attorney General Taylor could appeal the ruling to the Alaska Supreme Court, challenging Walker’s decision to dismiss the suit. If he were to somehow prevail on those grounds, though, it would be likely that the underlying issue of the effective date would be kicked back to the Superior Court for consideration. That would all take time, meaning the Legislature will still have to work under the uncertainty created by this dispute.
In real world terms, that means the Legislature likely need to continue to work to achieve the two-thirds vote to make the budget immediately effective—an increasingly costly prospect given the Dunleavy-aligned Republican minority’s willingness to play chicken with the shutdown—or could forego that vote by attempting to pass the budget with at least 90 days before the start of the fiscal year. Even that latter scenario isn’t a surefire way to avoid those negotiations because the governor could veto the budget and force them back to the table.