On Nov. 5 in the Boney Courthouse in downtown Anchorage, Superior Court Judge Jennifer Henderson heard oral argument on the State of Alaska’s motion to dismiss the case ACLU v. Dunleavy. Prior to the hearing, about 35 supporters listened to ACLU demonstrators on the plaza abutting 4th Avenue, their ranks dotted with “I Stand With Planned Parenthood” picket signs. A few “Dunleavy for Governor” partisans stood close by.
At issue is Governor Mike Dunleavy’s veto of $334,700 to the Alaska Court System. Or, more precisely, Dunleavy’s explanation that the Alaska Supreme Court should pay for the state-funded elective abortions it insists upon, which are opposed by the other two branches of Alaska’s government.
All parties agree that the governor’s veto is a constitutional power, said State of Alaska Assistant Attorney General Jessica Leeah. The only issue is the governor’s explanation attached to the veto.
“The court should not unilaterally override the governor and step into the shoes of 45 legislators, the amount necessary to override a governor’s veto under Alaska’s constitution,” Leeah said in court.
Not so, said ACLU Attorney Stephen Koteff, who represents the ACLU, Bonnie Jack, and John Kaufman.
“These plaintiffs filed the suit because the governor’s actions represent an unprecedented threat to the independence of the judiciary,” Koteff told the judge. The plaintiffs seek the restoration of the $334,700 to the appellate courts, and an injunction ordering Dunleavy “to refrain from further intrusion or interference with the judiciary branch.”
STANDING IN FOR JUDGES
So can a private citizen like Bonnie Jack, an Alaskan attorney like John Kaufman, and a civil rights organization like ACLU-Alaska really trump an elected governor’s veto, much less the Alaska Legislature’s failure to override? According to the litigants, the question pivots on two court-made doctrines: standing and justiciability.
The standing doctrine examines whether a potential plaintiff is the proper person to bring a specific suit into court. For example, a person injured in a car accident has standing to bring suit against the driver that crashed into him – but not the offended, yet uninjured, bystander. Exceptions exist, such as when a parent brings suit on behalf of a minor child. But a litigant’s lack of standing, in theory, means that the judge should dismiss the suit.
“Not in Alaska, where our standing rules are broadly construed,” argued Koteff. “I don’t think there are more appropriate plaintiffs than the ACLU of Alaska, Bonnie Jack, and John Kaufman.”
Assistant Attorney General Leeah countered that appropriate plaintiffs in a veto to the judicial branch are those with some identifiable injury: trial court judges, presiding judges, court system employees, court reporters, court-appointed attorneys, or actual litigants who are impacted by reduced funding.
Upon later inquiry from Judge Henderson, Koteff responded that, “Were we to accept the state’s argument that there are others – let’s say judges of this court – who might be more appropriate, they haven’t sued, and at this point it is not clear that they are likely to sue.”
Despite Koteff’s statement, he was greeted immediately after the conclusion of argument by retired judge Sen Tan, current president of the Board of ACLU-Alaska. Tan, a local tennis champion, shook Koteff’s hand, grinned, and appeared to pantomime a forehand winner. As a superior court judge in 1998, Tan was the first member of Alaska’s judiciary to declare that defunding Medicaid abortions was unconstitutional, and his decision was upheld by the Alaska Supreme Court in 2001.
Tan declined to comment for this story, instead deferring to ACLU Attorney Josh Decker as “knowing much more about the case.”
When asked whether Tan’s ruling in 1998 first established that Medicaid would pay for abortions over the objection of the Alaska Legislature, Decker claimed that he “did not know the history of it,” and did not think that the history of the Alaska Supreme Court’s affirmance of Tan’s decision was “useful.”
JUSTICE BOLGER & JUSTICIABILITY
Unlike standing, the doctrine of justiciability is a self-imposed judicial rule that closes the courthouse door to political questions; that is, specific policy decisions made by the governor or the Legislature.
Both the state and the ACLU spent significant time discussing Chief Justice Joel Bolger’s multiple public statements opposing the governor’s reduction of the Court’s budget, most recently last month in Fairbanks to the Alaska Federation of Natives. Leeah concluded by stating that, “This is a widely publicized case, and the Alaska Supreme Court issued a public statement. It is political, and it should play out in the political forum.”
Koteff disputed this.
“The Chief Justice said that the court is facing a great deal of pressure,” Koteff said. “There’s no mistake about what that statement means. The chief justice is asking the public to join the court in resisting political influence.”
While the parties disagreed on the proper interpretation of Bolger’s comments, all agreed that Judge Henderson could take notice of them in rendering her decision.
Should the state win its motion to dismiss the case, it could be appealed to the Alaska Supreme Court, where Chief Justice Bolger sits. If Judge Henderson permits the case to continue, the discovery phase begins where witnesses can be summoned to give sworn testimony.
Judge Henderson declined to rule from the bench but said she would issue a written decision as soon as possible.