The Alaska Attorney General's office says the Alaska House lacks the authority to substitute itself for a legislative committee in the appeal of a lower court's decision to allow Gov. Bill Walker's Medicaid expansion.
The legal filing Monday by the Alaska Department of Law comes less than two weeks after the House of Representatives attempted to appeal its lost Superior Court case to the state Supreme Court.
The Alaska Legislature, through the House-Senate Legislative Council, initially filed the lawsuit last year over the Walker administration's unilateral expansion of Medicaid through the Affordable Care Act. In March, a Superior Court judge ruled against the Legislature and concluded that Walker acted within the law.
The case was originally brought by the Legislative Council, a committee of legislative leaders which can sue in the name of the Legislature when the Legislature isn't in session.
Now controversy centers on how lawmakers are proceeding with the high-profile lawsuit and who's calling the shots.
On May 5, the Legislature's outside attorneys filed the appeal in Supreme Court, naming the Legislative Council as the appellant. However, the council never voted to continue the case, and under an opinion by the Legislature's lawyer, the council had no authority to decide on the appeal even if it wanted to. The legal opinion said the Legislative Council's authority to sue expired when the full Legislature went into session, and the Senate and House would have to vote on continuing the case.
Neither took such a vote.
Shortly after filing the appeal, the Legislature asked Superior Court Judge Frank Pfiffner, who delivered the original verdict, to change the named plaintiff in the case to the Alaska House. That's the motion opposed by the Alaska Attorney General as the representative of the defendants, Walker and his Health and Social Services commissioner, Valerie Davidson.
"As far as the defendants can determine, the Supreme Court appeal and this motion appear to have been filed at the direction of a single representative — Craig Johnson," the Attorney General's Office wrote. "But Rep. Johnson is without any authority to undertake this unilateral action — absent a majority vote authorizing it, he does not speak for the House of Representatives or for the Legislative Council and he cannot ask this court to substitute that body for the Council in this litigation."
Stacey Stone, an attorney with the Anchorage law firm Holmes Weddle & Barcott, said in an interview Tuesday that her firm's contract with the Alaska Legislative Council required it to continue with an appeal.
The scope of work includes "not only filing the litigation, but filing the appeal also," Stone said.
According to a copy of the contract provided to Alaska Dispatch News, a "project director" is authorized to stop the firm's work on litigation.
"As part of the contract there are two project directors. While one project director could not give us an affirmative yes or no, the other project director did," Stone said.
She said the project director who gave the go-ahead on the appeal was Johnson, R-Anchorage. The other project director was Sen. John Coghill, R-Fairbanks.
But the contract lists the project directors as Chad Hutchinson and Mark Higgins, two legislative aides. Stone said those two worked under the direction of Johnson and Coghill. But neither lawmaker is mentioned in the contract.
Stone equated the change in the plaintiff to a married couple filing a lawsuit. She said if she filed a lawsuit with her husband on behalf of both of them and then he decided to drop out, "it wouldn't be new litigation."
"We're the same party," she said.
The motion filed by lawmakers' attorneys in Superior Court to substitute the House as the new plaintiff says that the Senate "indicated informally that it no longer wishes to proceed with the litigation."
But the attorneys for the Walker administration argue that there must be a majority vote for the Legislature of the Legislative Council to act.
"And although the Council's motion alleged 'informal' wishes of the Senate, it offers no authority for the proposition that the House may be substituted as a party without any evidence that it desires to pursue an appeal any more than the Senate," said Monday's legal filing from the Attorney General's Office,which opposed the motion to change the name of the plaintiff.
Johnson did not return a call for comment Tuesday.
Margaret Paton-Walsh, an assistant attorney general and a member of Walker's defense team, said in an interview Tuesday that if the Superior Court denies the lawmakers' motion to change the plaintiff to the House, the state will move to dismiss the appeal.
"We don't have any problem with litigating this as an ordinary appeal, but it has to be done by an appellant who has made the decision to appeal," she said. "This is a very peculiar circumstance, I think."
Medicaid expansion started in fall 2015.
Coghill said earlier this month that the $450,000 allocated for the lawsuit would not see the case through the Supreme Court.