The Alaska Legislature last week took a step towards suing Gov. Mike Dunleavy over an executive order he issued ahead of last month’s special legislative session. The order was Dunleavy’s second attempt this year to elevate the Department of Natural Resources’ Division of Agriculture to a cabinet-level department, but lawmakers say it violates the state Constitution.
Lawmakers approved the move at a Legislative Council meeting on Wednesday. Kodiak Republican Rep. Louise Stutes said the lawsuit is an effort to protect the Legislature’s constitutional role.
“This has been brought before the body, before both bodies and voted down,” she said. “We said no. Don't you understand what no means?”
The Alaska Constitution allows the governor to issue executive orders to reorganize the executive branch, but the Constitution gives lawmakers 60 days to hold a vote disapproving the order, preventing it from going into effect.
Lawmakers rejected his first order in a 32-28 vote during the regular session this spring. They sent a letter to the governor last month rejecting the second one as invalid, saying the Constitution didn’t allow executive orders during special sessions, since they last fewer than 60 days. But Dunleavy has said the order would take effect unless lawmakers voted it down.
Rep. Mike Prax, a Republican from North Pole, voted against preparing a lawsuit, saying he was worried about possible unintended consequences.
“I think we are too focused on a disagreement between this governor and this Legislature, and not thinking enough about the possibility of prohibiting needed action by some other governor sometime in the future that might be more urgent than this by simply doing nothing," Prax said.
Lawmakers on the Legislative Council voted 9-2 to approve spending up to $100,000 to prepare the lawsuit. Members of the Democrat-heavy bipartisan majorities controlling both chambers voted in favor, with the exception of Anchorage Republican Rep. Chuck Kopp.
“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,” Kopp said.
Rep. Calvin Schrage, an Anchorage independent, said it might be appropriate for lawmakers to withdraw the suit if Dunleavy doesn’t move forward with creating the department.
“But right now, given how the process is played out, in order to protect ourselves procedurally, and keep litigation on the table as an option for us, prior to this new department being created … we need to put forward litigation today,” Schrage said.
Dunleavy sent a letter to lawmakers Monday declining to withdraw the order. He said he welcomed the court challenge.
"There clearly exists a disagreement between the Executive and Legislative branch as the governor's ability to introduce an Executive Order in a special session," he wrote. "When such a dispute exists, it is appropriate to seek clarification from the courts."
Lawmakers have also filed bills that would create an agriculture department, but they have yet to advance to a final vote.
