Governor’s appointees named during pandemic rejected in Superior Court consideration

Published: Feb. 18, 2021 at 3:34 PM AKST
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ANCHORAGE, Alaska (KTUU) - In a clash between the governor’s power of appointment versus the Alaska State Legislature’s power of confirmation, 94 appointees designated by Gov. Mike Dunleavy throughout the course of the pandemic have been rejected in Superior Court, according to documents filed Thursday.

“Following the outbreak of the COVID-19 pandemic, the Legislature in 2020 adjourned without confirming or declining any of the Governor’s appointees,” according to the related court documents. “The Governor claims this longstanding statute is unconstitutional, and as a result he has directed these appointees to continue to serve in their positions without legislative confirmation.”

A 32-page court document details arguments made by either side. A question at the forefront of the discussion: Did Gov. Dunleavy violate his duty to faithfully execute the laws?

The Alaska Legislative Council, on behalf of the state Legislature, maintained that since the body neither confirmed nor denied any of Dunleavy’s appointees in 2020, each of those appointees is deemed to have been rejected, per Alaska statute. Dunleavy maintains the appointments and their continued service remain within his scope of power.

“The Legislature argues that, when the Governor announced in his December 16, 2020 letter that these appointees were validly confirmed, he violated his duty to faithfully execute the law,” documents stated. “The Governor, on the other hand, argues that the laws he is required to faithfully execute include the Alaska Constitution. According to the Governor, he has acted appropriately to faithfully execute the laws by filing a counterclaim asking the court to declare AS 39.05.080(3) and Ch. 9, SLA 2020 unconstitutional.”

The courts, determining the line between the executive and legislative branches’ powers, granted the motion for summary judgment to the ALC. Superior Court Judge Philip M. Pallenberg wrote, “The task of this court [...] is merely to determine the legal status of these appointments.” The appointments in question were rejected as of Dec. 15, 2020, he said, and “the attempt to reappoint the same appointees on December 16, 2020, as recess appointments was prohibited by statute (AS 39.05.080).”

Dunleavy’s communications team responded to a request for comment by referring Alaska’s News Source to the Department of Law, a representative for which said the department was disheartened by the decision.

“The Department of Law is disappointed in the Superior Court order granting plaintiff’s cross-motion for summary judgment in regards to the Governor’s appointments,” the DOL said in a prepared statement via email on Thursday afternoon. “We are reviewing the order and awaiting final declaratory judgment to determine future options, including appealing the court’s decision.”

Appointees are continuing to serve under the governor’s reappointments that occurred on Jan. 19, the department said, when the new legislature convened. The plaintiffs are to submit a form of declaratory judgment within three business days; as the defendant, Dunleavy then has three business days to file an objection, and if that happens, the ALC would then have to reply within three business days from then with its subsequent response.

Daniel McDonald with the Alaska Senate Majority responded to Alaska’s News Source with an email saying the Senate Majority received the news and is discussing with the Legislature’s legal division. After the implications are fully understood, the Majority will be able to discuss details, he said.

Alaska’s News Source reached out to Sen. Gary Stevens, who was the chair of the ALC during the time of the appointments, for comment but did not hear back by the time of publication.

This is a developing story. Check back for updates.

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