Constitution bars Alaska attorney general case, judge says

A ochre and white concrete building in a greay cloudy day
The Alaska Capitol on Wednesday, June 2, 2021. (Nat Herz/Alaska Public Media)

A lawsuit by Alaska’s attorney general against the Legislative Affairs Agency is really an action by the governor against the Legislature that is barred by the Alaska Constitution, a state court judge ruled Thursday.

Superior Court Judge Herman Walker Jr. cited comments by Gov. Mike Dunleavy and Attorney General Treg Taylor in reaching his decision.

The state constitution allows a governor to take legal action “in the name of the State” to enforce compliance with laws but says that the authority “shall not be construed to authorize any action or proceeding against the legislature.”

Taylor sued the Legislative Affairs Agency on June 21, after the House failed to adopt effective date provisions for a state spending package. Dunleavy said the budget was “constitutionally impaired if the goal was for it to take effect on July 1.”

A week after the lawsuit was filed, and days before the new fiscal year started on July 1, the House passed the effective date provisions. Attorneys for the Legislative Affairs Agency, in court filings, said that action itself rendered the lawsuit moot.

But they also argued the lawsuit “in substance” was “brought in the name of the state against the Legislature,” and barred by the constitution.

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Margaret Paton Walsh, an attorney for the state, argued the attorney general has independent authority to bring actions in the public interest.

“The fact that the governor wanted him to do it doesn’t change the fact that he has that independent authority,” she argued last week.

Walker, in his ruling, noted a June 18 letter Dunleavy sent the chief justice of the Alaska Supreme Court. In the letter, Dunleavy said that given the “consequences flowing from the lack of an effective date” he had asked Taylor “to seek a determination of the issue” through the courts.

“This belies the assertion that Attorney General Taylor brought the present suit under his common-law powers as Attorney General,” Walker wrote.

Despite having independent powers, the attorney general “serves under the supervision of the Governor and at this pleasure,” Walker wrote.

The judge also said public statements by Dunleavy and Taylor had “consistently framed the suit as a vehicle to resolve a dispute between the executive and legislative branches.”

He said he concluded the lawsuit was an action by Dunleavy “‘in the name of the state’ directed ‘against the legislature,’” and prohibited by the constitution.

Grace Lee, a state Department of Law spokesperson, said the department, which Taylor leads, was disappointed that the decision did not resolve “the underlying issue on the effective date clause, an important question that still needs to be answered.”

A decision on a possible appeal has not yet been made, Lee said by email.

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