Gov. Mike Dunleavy is getting hit with lawsuits over his budget actions.
On Tuesday, the Legislature filed suit in a Juneau state superior court over the governor’s refusal to release funds to school districts on a scheduled payment.
On Wednesday, the American Civil Liberties Union’s Alaska chapter took action in an Anchorage superior court to block Dunleavy’s veto of funds for a scheduled cost-of-living increase for court employees.
The suit over school payments was expected because the governor has previously challenged the legality of a “forward-funding” appropriation for schools that was made last year.
Attorney General Kevin Clarkson said late Tuesday that an agreement has been worked out to get funds to school districts until the dispute over forward funding is resolved.
With the agreement of the state Department of Law, Superior Court Judge Daniel Shally signed a July 16 order releasing funds to schools while the basic action over forward-funding is proceeds in the courts.
School officials were nervous over the delay, however. State Sen. Gary Stevens, R-Kodiak, who chairs the Senate’s education committee, said the withholding of funds won’t immediate affect schools in his home district because school is out for the summer and expenses are low.
“I’m told they could get by for a month or so but there would be a problem after that,” Stevens said in an interview.
The funding for FY 2020, for the school year starting in August, is probably secure, Stevens said, but legislators are more concerned about FY 2021, the school year from August 2020 to May 2021.
Dunleavy vetoed the “forward funding” by the Legislature for FY 2021, which means the K-12 money for the year will be part of the regular budget before the Legislature next spring. If the Legislature approves that, which is likely, Dunleavy may veto a big chunk of it as he did this year for the University of Alaska.
Last February the governor proposed large reductions in K-12 funding for FY 2020 but was thwarted because the Legislature had already passed an appropriation the year before – the “forward” funding – which Dunleavy could not undo, at least then.
All bets are off for FY 2021, however.
The ACLU lawsuit challenges the governor’s veto of court funds on the grounds that it is an illegal interference with a separate branch of government, the judiciary, done because of Dunleavy’s unhappiness with a recent Supreme Court decision invalidating a 2014 state law restricting payments for abortion with state Medicaid funds.
“Governor Dunleavy admitted outright that his veto was a direct retaliation against the Alaska court system for a court decision at odds with his political views,” said ACLU’s Alaska executive director, Joshua Decker.
“Alaskans don’t want judges making decisions with an eye on how much money politicians will give them if they rule one way or the other. That isn’t how we get justice,” Decker said.
ACLU brought the action on behalf of two Alaska citizens, Bonnie Jack and John Kauffman. Jack is a lifelong Alaska resident who has worked as staff in the past for Republican legislators.
Kauffman is an Anchorage attorney in private practice who works in commercial law.
“The governor of Alaska, as head of the executive branch, may validly exercise the veto power provided to him in the Alaska Constitution. The governor may not, however, use his veto power in an unconstitutional manner,” the ACLU said in its court filing.
An action by the executive branch to retaliate against the courts for their exercise of judicial power is unconstitutional because it impermissibly intrudes on the function of the judiciary, the ACLU said.
Legal challenges to a governor’s veto authority are rare because the constitution does give Dunleavy the veto right. While vetoes are often viewed as political, there is usually no hard evidence and the courts have traditionally been reluctant, unless forced in a lawsuit, to decide in a legislative-executive branch dispute.
In this case, however, the governor himself articulated a political motive, which may encourage the courts to step in.
They may be others joining in the lawsuit because the nature of many of Dunleavy’s vetoes, mainly small ones of specific programs, paint a picture of the governor engaging in legislative policy-making through a budget veto, persons familiar with the process said.
Vetoes are typically used as a check against legislative overspending, for example in the capital budget, rather than as an apparent tool to influence policy through funding of a program.
In this context the ACLU action may create avenues for others to challenge Dunleavy’s vetoes on the grounds that they constitute lawmaking and interference in a function reserved for the Legislature.