The Alaska Legislative Council on Thursday authorized a lawsuit challenging Republican Gov. Mike Dunleavy’s spending on contracts with Outside law firms to pursue various anti-union issues, a move that a legislative auditor found “very likely” violated state laws.
The lawsuit, legislators argued, would help settle underlying legal questions about the separation of powers between the administration and Legislature over how the budget is constructed with respect to the Department of Law. They approved a $100,000 contract but acknowledged it could cost more if it ends up before the Alaska Supreme Court.
Several legislators argued it was critical for the Legislature to defend its authority over the budget.
“I want to just stress that this is not anything I would think of as an angry lawsuit,” said Juneau Sen. Jesse Kiehl in supporting the motion. “This is one of those situations where the Legislature and the governor just have a difference of opinion on where the constitutional line is, and we need to submit it to the third branch of government whose job it is to decide it. … Not because anybody is being awful or trying to cheat but because we have a genuine dispute between the branches.”
The argument dates back to the early days of Dunleavy’s time as governor when the administration argued that the 2018 U.S. Supreme Court decision in Janus v. AFSCME required them to radically alter how union dues of unionized public employees should be collected. The problem with that approach is the ruling specifically dealt with the forced collection of union dues from non-union public employees and not unionized public employees. It’s a point the Alaska Supreme Court recognized when it ruled against the administration, finding the plan was motivated by ample evidence of “anti-union animus” on the part of Dunleavy.
While such cases would typically be handled by state attorneys, the Dunleavy administration took the unusual step of hiring Trump-affiliated D.C. law firm Consovoy McCarthy on a $600 per hour contract. That move — combined with the anti-union animus that was obvious at the time — rankled legislators, who responded by passing a budget that renamed the budget line for the Department of Law’s Civil Division as the “Civil Division Except Contracts Relating to Interpretation of Janus v AFSCME.”
At the time, legislators argued that if Dunleavy felt so strongly about the issue, he could still pursue it with state attorneys rather than with the high-cost, out-of-state contracts. They even went as far as offering the governor $20,000 to finish out the contracts, money that the governor vetoed.
Arguing that the budget language was an unconstitutional limitation on the kinds of cases that the Department of Law could pursue, the Dunleavy administration simply ignored the budget language. The administration continued to spend money on contracts with Consovoy McCarthy to argue the case over union dues (which it lost, resulting a roughly $450,000 judgment against the state) and file briefs supporting other anti-union cases across the country.
The Legislature ultimately audited the administration over the spending, finding Dunleavy spent a total of $315,034 from the “Civil Division Except Contracts Relating to Interpretation of Janus v AFSCME” on contracts relating to the interpretation of Janus v AFSCME.
The audit was based on legal input from the Department of Law, Legislative Legal and an independent law firm, finding that the analysis put forward by the Legislature’s attorneys and the independent law firm were more convincing than the one put forward by the state. It noted that the remedies could include a lawsuit challenging the administration or an amendment to the budget that would retroactively give the governor the blessing to spend the money.
While a bipartisan 10-member majority supported the lawsuit, three Republicans voted in favor of giving the governor a pass on ignoring the Legislature’s budget.
Big Lake Republican Rep. Kevin McCabe spoke against the lawsuit, arguing that it was an overly aggressive and costly approach to resolving the situation when they could just sign off on the governor’s spending. He said he would be in favor of a resolution that said, essentially, “We considered suing you. We’re not going to do it, but don’t do this again.”
Senate President Gary Stevens, R-Kodiak, countered the case goes to the constitutional separation of powers in the state and that anything less than challenging it, would be ceding ground to the governor.
“I think it’s really important that we protect the appropriating power,” he said. “We need to protect it and keep control of the spending in the state. That’s our job.”
Ultimately, the committee voted 10-3 in support of taking legal action against the governor. Sens. Click Bishop, Matt Claman, Lyman Hoffman, Jesse Kiehl, Donny Olson, Gary Stevens and Elvi Gray-Jackson were joined by Reps. Bryce Edgmon, Sara Hannan and Dan Saddler voted in favor of the lawsuit.
McCabe was joined by House Speaker Cathy Tilton and Rep. Craig Johnson in voting against the lawsuit.
Matt Acuña Buxton is a long-time political reporter who has written for the Fairbanks Daily News-Miner and The Midnight Sun political blog. He also authors the daily politics newsletter, The Alaska Memo, and can frequently be found live-tweeting public meetings on Twitter.