Supreme Court to expedite case over appointments

The Alaska Supreme Court has agreed to hear arguments in the Legislature’s lawsuit against Gov. Mike Dunleavy over his political appointments seemingly in time to rule on the case before lawmakers are required to adjourn this year.

The court granted in-part the Dunleavy administration’s request for an expedited appeal schedule in an order dated March 2, which lays out a briefing schedule through March leading up to oral arguments on April 6.

State Department of Law attorneys asked in a Feb. 23 motion for the Supreme Court to hold oral arguments “on or about” April 2 and to issue a decision by April 12 to avoid a repeat of last year, noting the Legislature is directed by statute to adjourn April 18 after 90 days. However, the body routinely takes its constitutionally allotted time of 121 days, which is May 19 this year.

Lawmakers quickly passed a budget and recessed late last March as the pandemic reached Alaska without holding a joint House-Senate floor session to vote on Dunleavy’s appointees.

Attorneys for the Legislature argued in response that the expedited appeal is unnecessary given the governor took the step of reappointing all of his unconfirmed appointees in question earlier this session, meaning lawmakers can vote on them along with the rest of his subsequent appointments made so far this year.

If for some reason the Legislature were to again adjourn without a joint session, approximately 181 appointees, including members of Dunleavy’s cabinet, “will be unceremoniously removed from office,” the administration’s motion states.

Senate President Peter Micciche, R-Soldotna, said in a March 5 press briefing that he couldn’t comment on the lawsuit but he generally expects the appointment process to be more normal this year with committee hearings to vet appointees prior to a lengthy joint floor session shortly before lawmakers gavel out.

“We’re hoping to work together (with the House) to get those people confirmed or not, depending on who they are, and not have a disruption in service,” Micciche said.

The one likely caveat to a normal process is COVID-19-related; legislative leaders and staff are working to find a larger venue in Juneau to hold the joint session with 60 lawmakers plus support staff, according to Micciche.

“We’re not sure what that looks like yet,” he said, adding, “The Senate’s going to get its work done one way or another.”

Among the many appointees left in limbo were acting Revenue Commissioner Lucinda Mahoney and Dunleavy’s nominees to the Board of Fisheries, which are nearly always among the most controversial of a governor’s appointments.

Dunleavy spokesman Corey Young wrote via email that while the governor took the step of reappointing the individuals in-question earlier this year he maintains his actions last year were legal.

The Legislature’s lawsuit against Dunleavy ultimately stems from a disagreement over whether his appointees the Legislature did not vote on last year could still serve on the dozens of boards and commissions across the state and hold positions within the administration.

While lawmakers did not hold a joint confirmation session in 2020, they did pass a laws extending the validity of the appointments either to the start of the current session or 30 days after the first public health emergency declaration expired, which occurred on Nov. 15.

In mid-December Dunleavy wrote to House and Senate leaders that he was exercising his authority under the Alaska Constitution to continue the appointments while the Legislature was adjourned. That spurred the joint Legislative Council to approve a lawsuit on the grounds that Dunleavy was overstepping his authority shortly before Christmas.

Juneau Superior Court Judge Philip Pallenberg granted the Legislature’s motion for summary judgment in the suit Feb. 18, concluding that the statutes passed early in 2020 meant, “the appointments in question were rejected as of Dec. 15, 2020” and the governor’s attempt to reappoint them the next day was prohibited by statute as well.

The lawsuit is the Legislature’s second against Dunleavy. Lawmakers sued the governor in 2019 in a battle over education funding that the administration ultimately lost.

Elwood Brehmer can be reached at [email protected].

Updated: 
03/10/2021 - 12:44pm