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Governor has gone to war against the courts

  • Author: Andy Josephson
    | Opinion
  • Updated: July 31, 2019
  • Published July 31, 2019

Alaska Supreme Court on Wednesday, Oct. 12, 2016. (Bill Roth / ADN)

In “King Lear,” William Shakespeare cautioned against attacking a king, though the Earl of Kent spoke courageously in any case: “To plainness honour’s bound, when majesty stoops to folly.” (Act 1, Scene 1).

A wise politician hesitates to anger a king, a president or a governor. Shakespeare was instructive on this point. But, on penalty of banishment, speaking truth to power remains essential.

Yet, I was raised by parents who celebrated diplomacy. Diplomacy in all things. No raised voices. No broken dishes. Expressions of feelings, yes. Grandstanding and parading about, no.

Sadly, those times are nearly gone for me now, at least at this pivotal moment in Alaska where nothing less than the soul of the state is at stake. It didn’t seem possible that a governor of Alaska — against his self-interest — could become the most divisive in our history after serving just a short eight months in office. This one has.

There can no longer be perfect fealty to diplomacy.

It didn’t seem possible that a governor could pressure a Legislature into damaging Alaska’s own iconic ferry system by threatening its complete demise, while heartlessly stranding coastal Alaskans, needlessly damaging their economies and general well-being. It didn’t seem possible that a governor would force a university system toward something just short of bankruptcy, requiring the termination of 1,300 professors and staff. It wasn’t conceivable that a governor could act so unfeelingly toward those in his charge, those for whom he was hired to have the most empathy. Who would want this legacy? Who would want to devastate people’s dreams? Or destroy their institutions? Certainly not Messrs. Bill Egan, Wally Hickel or Jay Hammond.

While it’s competitive, the most unconstitutional thing the governor may have done on June 28, the day he issued his pitiless vetoes, was slash the Alaska Court System’s budget by $334,700 as a penalty for its decision in an abortion case. Since the times of James Madison (the conservatives’ darling) in 1787, it’s been understood that wise governance requires a separation of powers. This is taught every day, in every school throughout our country. No one seriously disputes it.

The courts have no power to appropriate or raise money, other than by the charging of administrative fees. You can’t keep the lights on or pay salaries with mere administrative fees. It requires us — the Legislature — in combination with the governor, to be reasonable with the court’s budget. (It’s noteworthy that the court system has been imposing its own cuts for years, until it simply couldn’t do it any longer).

In effect, the governor said this: “The court shall conclude whatever a governor and Legislature conclude, when the governor and the Legislature reach the same conclusion.” This is not constitutional, ladies and gentlemen. It’s mere make-believe. In common parlance, “It’s not even a thing.” Indeed, Madison would surely have wanted the courts to intervene to stop politicians from their worst excessive impulses. Even the judges’ own Canon 3 emphasizes this point: “A judge shall not deviate from the law to appease public clamor, to avoid criticism, or to advance an improper interest.” Our governor ignores this rule, as well as the concept of judicial review—a concept easily understood by high-schoolers, but not this governor. As Justice John Marshall wrote in Marbury v. Madison, “It is emphatically the province and duty of the Judicial Department to say what the law is.” When the regular law is in dispute, judges rule — with finality. Move on.

Noteworthy, the justices who have ruled on reproductive freedom must each have a personal opinion on the question of abortion. It cannot be known, however, but to them and their closest associates. Indeed, it’s entirely plausible that each opposes reproductive choice. But they are retained, again, to review cases through a constitutional lens. Also worth noting is that in the six seminal cases on abortion spanning 1997-2019, there has been a complete change-over of personnel on the Supreme Court. Still, the rulings come out similarly, each consistent with the previous ones. Could it be that the court is doing its job?

Our judges are referees, calling balls and strikes. The ultimate prism through which the courts see the world is the Alaska Constitution. The people embedded important concepts like “equal protection” and “privacy” into that great document. The court didn’t ask the people to do that — we did it.

For those understandably sensitive about abortions rulings, on either side, consider that under Gov. Dunleavy’s thesis (that courts must believe what Legislatures and the governor do), could not court budgets be cut in response to any decision the governor disfavored?

This governor has misjudged the soul of his own people, if he ever even knew us. And he’s gone to war with a co-equal branch of government. No institution is more important than our independent court system. If we lose this, we can pack it in.

Rep. Andy Josephson, D-Anchorage, was elected to the Alaska State House of Representatives in 2012 and represents residents in Midtown, the university area, and East Anchorage.

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