This story has been updated with comment from the Alaska State Employees Association.
The Supreme Court of the United States has, for a second time in two weeks, rejected Alaska Gov. Mike Dunleavy’s request to skip the line.
After losing a union dues case with the Alaska Supreme Court last year, the governor appealed the case directly to the U.S. Supreme Court rather than taking the typical route of years of appeals through the federal court system. He tried the same approach when trying to overturn the U.S. Environmental Protection Agency’s veto of Pebble Mine, which the U.S. Supreme Court rejected last week.
As legal observers in the Pebble case have noted, such appeals are extraordinarily rare for the U.S. Supreme Court and are typically related to constitutional disagreements between the states or in cases where there is no other reasonable venue. Like with last week’s decision, the court offered no explanation for its rejection.
“This is excellent (if predictable) news,” wrote Juneau Sen. Jesse Kiehl on Facebook this morning. “The US Supreme Court declined even to consider the governor’s claim that the constitution requires employees to sign a special form in the presence of HR every year. Alaska law and our state contracts with employee unions have been right on this all along!”
The latest case stems from the 2018 Supreme Court decision in Janus v. American Federation of State, County, and Municipal Employees, which found that it was unconstitutional to force non-union public employees to pay union dues. The Dunleavy administration sought to greatly expand the scope of that decision by arguing it also required a radical reshaping of how the state collects dues from unionized public employees, something even the U.S. Supreme Court case specifically didn’t weigh in on.
Under disgraced former Attorney General Kevin Clarkson and former Department of Administration Commissioner Kelly Tshibaka, the Dunleavy administration unilaterally enforced changes that made it harder for the unions to maintain membership and collect union dues, including signing a document that claimed that by joining a union, they were waiving their First Amendment rights.
That triggered a lawsuit by the Alaska State Employees Association, which resulted in the Alaska Supreme Court siding with the labor unions and finding that there was “abundant evidence of anti-union animus” on the part of the Dunleavy administration. The Alaska Supreme Court upheld a lower court decision that awarded about $450,000 to the union for legal fees and other costs incurred while dealing with the governor’s unconstitutional actions.
That’s not the end of the costs for the governor’s actions in this case.
As the governor was mounting his legal fight in the case, legislators took issue with the Dunleavy administration’s decision to use outside legal help from the conservative Trump-aligned Consovoy McCarthy law firm at $600 per hour rather than staff attorneys. The Legislature took the unusual step of renaming the Department of Law Civil Division budget as the “Civil Division Except Contracts Relating to Interpretation of Janus v AFSCME” in an attempt to put a halt to such spending.
Dunleavy ignored the budget, claiming it was an unconstitutional attempt to limit the legal cases the state could pursue, and spent from the “Civil Division Except Contracts Relating to Interpretation of Janus v AFSCME” budget for contracts relating to the interpretation of Janus v AFSCME.
A legislative audit found that $315,034 had been spent on such contracts, finding it “very likely” violated the Alaska Constitution. That spending doesn’t cover the latest round of appeals to the U.S. Supreme Court, which were also handled by Consovoy McCarthy.
At the end of the year, the Alaska Legislative Council — a panel of key legislators — voted to authorize a lawsuit against the governor over his unauthorized spending with the aim of getting the final word from the courts on what is largely a novel issue.
In a prepared statement, ASEA President Heidi Drygas celebrated the decision but lamented the cost to Alaskans that it has taken to reach this point. She also noted that the governor has spent time and energy chasing the fight rather than focus on the ongoing issues of outmigration and high vacancy in state services.
“This is good news for ASEA, yet we can’t help reflecting on the price Alaskans paid to reach this conclusion. The Governor pursued a politically motivated, frivolous lawsuit to waste untold hours and more than a million dollars during one of the largest public service crises in our state’s history. Alaska’s public workforce showed up on the frontlines of the pandemic to help Alaskans despite being largely short-staffed and underfunded. The Governor returned the favor by seeking to undermine their rights to bargain collectively for better wages, benefits, and working conditions,” she said. “ASEA hopes the Administration will focus now on pragmatic solutions for recruiting and retaining public employees. ASEA will continue to advocate for paying workers fairly and timely for the work they do, treating employees with respect, and providing incentives to stay—like a secure retirement.”
As with the Pebble Mine case, Dunleavy can still appeal the case through the traditional avenue of the federal court system, but given the amount of time that these cases take to work the court system, it’s unlikely Dunleavy will still be in office by the time it reaches the U.S. Supreme Court.
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.
