Lawsuit challenging Dunleavy veto of court system funds over abortion rulings is now in hands of judge

A judge must now decide the fate of a lawsuit challenging Gov. Mike Dunleavy’s veto of judiciary funding over the Alaska Supreme Court’s rulings on abortion.

Anchorage Superior Court Judge Jennifer Henderson will rule on whether the American Civil Liberties Union of Alaska’s lawsuit can move forward. The state has asked that the suit be dismissed.

In oral arguments in Anchorage on Tuesday, an attorney for the ACLU called the veto a “stunning and blatant” act of political retaliation that threatens the very separation of powers enshrined in the Alaska Constitution.

The State of Alaska contends Dunleavy was within his powers as governor to make the veto, and said the decision hadn’t caused the harm to the judiciary’s independence that the ACLU alleges.

Henderson did not rule on the state’s request to dismiss the case on Tuesday. She said she needed time to consider the arguments and would rule later, in writing.

The lawsuit is the result of a single line-item veto Dunleavy made in a season of contentious budget cutting.

In June, Dunleavy vetoed $334,700 from the Alaska Court System’s budget as an openly stated strike against the Alaska Supreme Court, which has repeatedly ruled against attempts to stop the state’s Medicaid program for paying for abortions outside of cases of rape, incest and when the mother’s health is endangered.

“The only branch of government that insists on state-funded elective abortions is the Supreme Court,” Dunleavy wrote in a note attached to the veto. “The annual cost of elective abortions is reflected by this reduction.”

Abortion opponents cheered the decision as a blow against what they see as judicial activism.

In July, the ACLU of Alaska sued, asserting that the veto was retaliatory and unconstitutional.

The lawsuit itself moving forward would politicize the judiciary, an attorney representing the Alaska Department of Law argued Tuesday.

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The ACLU is “asking a judge to unilaterally override the governor’s veto to give the court system more funding,” said attorney Jessica Leeah.

Leeah also questioned the ACLU’s contention that the court system was harmed by the veto.

The Chief Justice of the Alaska Supreme Court issued a statement saying judges would continue to rule without regard to political will after the veto, Leeah said. And judges have since made decisions “adverse” to the interests of the Dunleavy administration, she pointed out.

An attorney for the ACLU argued that the harm is clear, and the stakes high.

Reviewing legal precedent from around the country, it’s hard to find an example that even comes close to Dunleavy’s veto, said ACLU legal director Stephen Koteff.

The veto “represents an unprecedented threat to the integrity of the judiciary,” Koteff told the court.

“This is not some squabble between the legislative and executive branches. This is a direct attack on the independence of the judiciary.”

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Before Tuesday’s hearing, about 50 protesters gathered outside the Boney Courthouse in downtown Anchorage in support of the ACLU’s lawsuit.

“I think it’s scary that Gov. Dunleavy thinks that he can influence the court by punishing them by taking away funds,” said Ceci Humphreys of Anchorage. “It’s a clear separation of powers issue.”

A counter-protest of about a dozen abortion opponents and Dunleavy supporters gathered nearby. Judy Eledge said she attended in support of the governor’s right to veto.

“And the Legislature has the right to override him if they do not like what he did -- which they did not do,” Eledge said. “And I’m here because this ruling has nothing to do with safe and legal abortion. It is still legal in the state of Alaska. We don’t think it should be paid for by us.”

Henderson’s ruling will determine whether the case moves forward in Superior Court, said Joshua Decker, the executive director of the ACLU of Alaska. Both sides will have the right to appeal the outcome of the case — all the way, potentially, to the Alaska Supreme Court.