Judge to decide Anchorage mayor's veto power on Assembly election decisions

Casey Grove
Timothy Petumenos, lawyer for the Anchorage Assembly, makes a point to Judge Erin Marston in the Nesbett Courthouse on Friday, December 20, 2013. Lawyers for the Mayor's office and Assembly were arguing about the mayor's power to veto the Anchorage Assembly's placement of a voter referendum on the April ballot.
Bob Hallinen
Vince Beltrami, president of the Alaska AFL-CIO, listens to oral arguments in front of Judge Erin Marston in the Nesbett Courthouse on Friday, December 20, 2013. Lawyers for the Mayor and the assembly were arguing about the mayors power to veto the Anchorage Assembly's placement of a voter referendum on the April ballot.
Municipal Attorney Dennis Wheeler talks to the media after oral arguments in front of Judge Erin Marston in the Nesbett Courthouse on Friday, December 20, 2013.
Bob Hallinen

It is now up to a judge to decide if Anchorage's mayor has the power to nix an Assembly decision setting an election date for a referendum that would let voters confirm or repeal a controversial labor law rewrite.

The Assembly voted 6-5 in October to put the referendum on the April 1 municipal election ballot. Mayor Dan Sullivan immediately vetoed that decision. But the Assembly essentially ignored him based on the legal opinion of its attorney, who said the mayor did not have authority to veto a decision on scheduling the vote. The municipality's attorney disagreed, and Sullivan sued the Assembly, sending the issue to court.

It's just the latest battle over Sullivan's labor law rewrite, which limits raises for municipal workers and stifles their ability to strike. After weeks of debate and, ultimately, the Assembly's approval, opponents gathered enough signatures for a referendum that suspended the law until a vote.

Opponents prefer the April election date because, the thinking goes, unions will mobilize more people to vote against the labor law, giving them an advantage amid historically smaller overall voter turnout. Supporters have said they want the referendum delayed until November, when the state election is held, so voter turnout will be greater. That could cancel out any surge by voters opposed to the law.

Mayor Sullivan's lawsuit over his veto powers filled an Anchorage courtroom Friday, when Superior Court Judge Erin Marston heard arguments from both sides: Municipal Attorney Dennis Wheeler, representing the mayor, and an attorney from a firm hired by the Assembly, Timothy Petumenos.

Petumenos argued first.

"The power to set an election resides and rests in 11 elected members, not in one man," Petumenos told the judge.

If the mayor were allowed to continue vetoing the date of a referendum vote, he could delay it until voters lost interest or forgot about the issue altogether, Petumenos said. And based on the outcome of past lawsuits on similar issues, the mayor's veto powers are not that strong anyway, Petumenos said.

The municipal charter made it the Assembly's responsibility to set elections for a reason, Petumenos said.

"When the election is set, there's an opportunity for debate. There's the opportunity for discourse," Petumenos said. "If there are people who want to manipulate the date of the election for political purposes, it is, under the charter, set for 11 elected officials, who can make that charge, rebut that charge, and have it out."

"I find it startling that the mayor's response was, 'Even if I'm doing this for political reasons, I can because I have the authority,'" Petumenos said.

Wheeler countered, saying that taking away the mayor's ability to veto those kinds of Assembly actions would upset the balance of Anchorage's system of government. If the Assembly cannot override the mayor's veto with a super-majority of eight votes, and the veto angers Anchorage residents, they can either vote him out of office during a mayoral election or wait for his term limit to expire, Wheeler said.

If the Assembly had not decided to choose a date for a vote on the referendum, it would have made its way onto a ballot within 75 days regardless, because that is what is required under the charter, Wheeler said.

What if, Wheeler asked, the tables were turned? What if the Assembly wanted to put off a vote on a referendum, effectively delaying the vote indefinitely?

"Why should they get the benefit of that play and not allow it to the mayor?" Wheeler asked. "That's the whole point of this process. Majority, veto, override."

While Petumenos pointed more to examples of legal precedent -- many of which Wheeler said did not apply -- Wheeler's argument centered on the municipal charter. If the charter did not give specific examples of things the mayor could not veto, the veto power was to be considered strong and broad, the municipal attorney said.

"We tend to spend a lot of time talking about our founding fathers and what they meant," Wheeler said. "It seems to me we should give the same level of consideration to what the people meant when they created the charter."

Judge Marston said he had read the "excellent" legal briefs filed prior to the Friday hearing and listened to good arguments.

When asked when to expect a decision, both attorneys said Judge Marston is aware of a mid-January deadline by which a decision must be made for the referendum to make it onto the April ballot. The judge gave no indication as to how long it would take him to make a ruling -- or which way he would rule.

"I'll take this matter under advisement," he said.

Reach Casey Grove at casey.grove@adn.com or 257-4343. Twitter updates: twitter.com/kcgrove.