Legal losses show limits of Gov. Dunleavy’s ability to push conservative change

On Thursday, an Alaska Superior Court judge in Juneau ruled in favor of the Alaska Legislature and against the administration of Gov. Mike Dunleavy in an education funding lawsuit.

It was the sixth significant loss by the Alaska Department of Law in a major policy case this year. State legislators and some of Alaska’s most experienced lawyers say there’s a pattern in those losses: The state is on the cutting edge as it attempts to implement conservative policies.

“You’ve got a governor who promised change, and you’ve got an attorney general who’s trying to create change. But one thing that doesn’t change is the constitution. They’re running up against constitutional hard lines,” said Joe Geldhof, a registered Republican and former Department of Law attorney who has pursued high-profile cases both against and for the state.

“They’re losing cases because they’re picking difficult battles,” said Jeff Feldman, an Alaska attorney who now teaches at the University of Washington law school and is a Democratic partisan.

The losses have alarmed some lawmakers who worry about the cost and that the state’s pursuit of conservative policies will suck resources away from the Department of Law’s duty to fight crime.

“If they lose, and they lose repeatedly, I think it’s incumbent upon the Legislature to ask itself: Why are we investing in these losing efforts?” asked Rep. Andy Josephson, D-Anchorage and chairman of the House subcommittee that sets the budget for the Department of Law.

The sweep of legal setbacks is significant. In addition to Thursday’s ruling:

• The state settled a lawsuit alleging it declared a false emergency to justify Medicaid cuts.

• After a lawsuit from a public employee union, the state agreed that it must study the privatization of the Alaska Psychiatric Institute before beginning to privatize the hospital.

• A judge granted an injunction stopping the state’s move to put new restrictions on union membership, saying the state was unlikely to win.

• A Superior Court judge overruled the rejection of a ballot measure that seeks to implement ranked-choice voting.

• The state supported a lawsuit by mine developer Pebble Limited Partnership and a group of Bristol Bay commercial fishermen to keep a fisherman-funded marketing group from campaigning against the mine. The lawsuit was tossed out.

Some of those cases have been appealed, meaning the state’s defeats are not final. Additional cases, such as those relating to the recall campaign against the governor, three lawsuits alleging the administration illegally fired state employees and a lawsuit alleging the administration illegally vetoed funding from the court system budget, have not been ruled upon.

Even without verdicts in those cases, Rep. Matt Claman, D-Anchorage and chairman of the House Judiciary Committee, said he believes there is a trend.

“It certainly appears they are taking a number of positions that are consistent with some very, very legally conservative perspectives,” he said.

Those patterns “are pretty inconsistent with longstanding precedent of many opinions of the Alaska Supreme Court,” which makes them “very unlikely to succeed,” he said.

The Alaska Department of Law said Clarkson was unavailable for an interview when asked several questions about the series of defeats and the legal policy of the state. It supplied a written statement:

“The court system is an important part of our government structure. The courts offer a venue for addressing serious issues facing Alaska today. There is a process for the judicial system to work, and the Department of Law is faithfully adhering to that process. Once the Superior Court has rendered a decision, it is the Alaska Supreme Court that will have the final word,” the statement said.

The attorney general is both legal adviser to the governor personally and to the state of Alaska.

“It looks like the attorney general’s advice is becoming more and more off the center line,” said Sen. Donny Olson, D-Golovin, chairman of the Senate subcommittee that sets the Department of Law budget.

Sen. Gary Stevens, R-Kodiak, said it would be a mistake to blame the attorney general. Stevens served two terms as Senate president and worked alongside Dunleavy when the governor was a senator.

“This is the governor. That’s going to be his approach. I don’t think anyone is representing him out of line from what he wants,” Stevens said.

It is not clear how much money the state has spent on its losing positions. In three contracts covering two of the illegal-firing cases and the union-membership cases, the state has spent $200,000 on hiring help outside the Alaska Department of Law.

This week, the state opened the bidding process for continued help on the union-membership case, saying it was prepared to sign a contract worth $500,000 to $600,000 for that case alone.

On social media, politically conservative Alaskans said the string of defeats is due to unfairness by judges, who they believe are biased against the governor and conservative policies.

“I’ve always kind of felt that the court systems in Alaska lean liberal,” said Rep. Ben Carpenter, R-Nikiski.

Carpenter said he doesn’t think the lean is due to malfeasance, just an inclination by the judiciary toward statist solutions.

“Maybe the extreme folks are going to say the courts are not doing their job, but I don’t think that’s true," Stevens said when asked whether the courts are biased. "I haven’t seen any evidence of that in my years in the Legislature.”