The Alaska Supreme Court is considering a case that could determine the timing of Alaska’s annual state budget and in the process redefine the limits of the executive branch’s ability to sue the legislative branch.
On Wednesday, justices of the high court heard 90 minutes of oral arguments in a case brought by Alaska Attorney General Treg Taylor against the Legislative Affairs Agency, the administrative wing of the Alaska Legislature.
Article III, Section 16, of the state constitution specifically bars the governor from suing the Legislature, but attorneys for the Alaska Department of Law — representing Taylor — argued that the prohibition only applies to actions by legislators, not by the administrators who support them.
“The AG’s complaint in this case,” said Senior Assistant Attorney General Margaret Paton-Walsh, “does not target an act of the Legislature, much less one that is purely and quintessentially legislative.”
The case dates to 2021, when the Alaska Legislature deadlocked on a procedural vote known as the “effective date clause.”
That clause was needed for the state’s budget to take effect July 1, the start of the fiscal year, but Republican lawmakers in the House voted against the clause because of their dissatisfaction with the size of the Permanent Fund dividend. Legislative majorities opposed drawing more than planned from the Permanent Fund to pay higher dividends, saying it would hurt the fund in the future.
With time running out and a government shutdown possible because of the lack of a budget, some legislators urged Dunleavy to sign the budget without the clause, saying that the budget law could be retroactively effective, negating the need for the clause.
The governor called the budget bill “defective” without the clause and refused to sign it.
AG Taylor sued, attempting to have a judge decide the issue, but lawmakers reached a compromise that averted a government shutdown, and in July 2021, a Superior Court judge ruled that Taylor’s lawsuit was barred by the constitution anyway.
The attorney general appealed that decision, leading to Wednesday’s arguments.
In written filings, the Department of Law argues that although the 2021 shutdown scare was resolved, there is a public interest in deciding whether or not the governor may sign a budget without the effective date clause.
“If a member of the public could have brought this action, then the attorney general should be allowed to do the same,” the Department of Law said.
Instead of targeting the Legislature itself, Taylor’s lawsuit targets the ability of the Legislative Affairs Agency to spend money without an enacted budget.
That angle, the department argues, bypasses the constitutional prohibition against suing the Legislature.
Attorney Jim Torgerson is defending the Legislative Affairs Agency and argued both in writing and in court on Wednesday that the case was brought by the governor, not the attorney general.
He noted a press release from Gov. Mike Dunleavy, who said he had ordered the lawsuit.
“As the AG repeatedly concedes, he brought this suit at the governor’s express direction. There was nothing independent about this,” Torgerson wrote.
Finding in the attorney general’s favor, he said, drawing on the superior court decision, would create a constitutional loophole “that would eviscerate Section 16’s protections.”
After hearing the arguments Wednesday, Supreme Court Justice Daniel Winfree said the court will take the case under advisement and issue a written decision at a later date.
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