A panel of state lawmakers voted 9-2 on Wednesday to approve spending up to $100,000 on a lawsuit against Gov. Mike Dunleavy.
The lawsuit, if filed, would challenge the governor’s decision to press ahead with plans to create a cabinet-level Alaska Department of Agriculture via executive order.
The governor issued an executive order in January, but lawmakers rejected it in a 32-28 vote in March, saying they preferred to create it through legislation instead. Creating the department through legislation, legislative leaders said, would allow lawmakers to debate and structure the department how they wish, instead of relying on the governor’s plans alone.
Dunleavy disagrees with that approach and in August filed a new executive order during a 30-day special session.
The leaders of the House and Senate refused to accept the filing, saying that it was not within the governor’s power to issue an executive order during a special session, or to reintroduce an already-rejected order.
The governor’s office has said that lawmakers’ failure to vote down the new order means that it will take effect and allow the executive branch to create the cabinet-level department at the start of 2026.
Why does the Legislature’s failure to vote on the executive order matter?
Article III, section 23 of the Alaska Constitution says that executive orders automatically take effect “unless disapproved by resolution concurred in by a majority of the members in joint session.”
The question that could be decided in court is whether lawmakers need to take that vote if an order is issued during a special session. Is issuing an order in a special session even legal? And does it matter if the order is identical to one that’s already been issued and voted upon?
Under Article III, section 23 of the Alaska Constitution, the “legislature shall have sixty days of a regular session, or a full session if of shorter duration, to disapprove” executive orders that would make a change to the functions of the executive branch.
For almost two hours on Wednesday, members of the joint House-Senate Legislative Council — a committee that makes decisions for the Legislature when it is out of session — heard about the dispute behind closed doors, then debated it briefly in open session before voting.
“It’s a disagreement between the Legislature and the governor about whether or not the governor has the authority under the Alaska Constitution to introduce an executive order during a special session,” said Emily Nauman, director of Legislative Legal Services, the legal department for Alaska’s legislative branch.
Because the House and Senate’s presiding officers returned the order to the governor without taking action, “the governor is asserting that he will give effect to the executive order because it was not specifically rejected or disapproved by the legislature, thus causing a conflict in the interpretation of the Constitution between the Legislature and executive branch.”
Rep. Louise Stutes, R-Kodiak, voted in favor of authorizing the Legislature to prepare and, if necessary, file a pre-emptive lawsuit to keep the governor from enacting the executive order.
“It’s just a question, to me, of, we said, ‘No. Don’t you understand what no means?’”
Rep. Calvin Schrage, I-Anchorage, also voted in favor of moving forward with a lawsuit. He said that while there is still time for the governor to back away from his position, “I really see it as our prerogative to protect ourselves procedurally, and for us to do that, I believe we need to file litigation.”
The two votes against Wednesday’s proposal came from Reps. Chuck Kopp, R-Anchorage, and Mike Prax, R-North Pole.
Prax said he feels as if it could set a precedent that could allow lawmakers to disapprove of a future governor’s actions in a “more urgent” situation by simply not taking action.
“We would establish a precedent that the Legislature can do something by doing nothing, and that just does not seem like a very good practice to have established for any organization,” Prax said.
Sen. Jesse Kiehl, D-Juneau, said he doesn’t think that’s a correct interpretation of the lawsuit.
“With great respect to Representative Prax, no one is asserting here that the Legislature may act by inaction. What is before us is the question of whether the second shot at an executive order came in a way that the Constitution allows. I am convinced it did not.”
Kopp said he believes the governor may be prepared to change course on his executive action, and he’s reluctant to approve a lawsuit unless the governor attempts to take action and actually create the department.
“I would like to see us not initiate this until there’s some overt action by the administration that clearly indicates their intent to move unilaterally on this issue outside of the legislative process,” he said.
As of Friday, there was no estimate as to when a lawsuit might be filed.
Under the Alaska Constitution, the executive branch may not sue the legislative branch. Lawsuits by the Legislature against the governor are rare; this would be the fourth against Dunleavy during his two terms in office beginning in 2018.
In 2019, lawmakers sued the governor over a school funding issue. The governor won that case in the Alaska Supreme Court. The following year, legislators sued Dunleavy over their failure to consider some of his appointees during the COVID-19 pandemic emergency. The Alaska Supreme Court again ruled in Dunleavy’s favor.
In 2022, lawmakers filed a ‘friendly’ lawsuit against the governor in a dispute over the proper handling of oil and gas tax settlements. That dispute, which dates to the administration of Gov. Bill Walker, has yet to be decided by the Alaska Supreme Court.
