Lawyers spar over whether Alaska House can appeal in Medicaid expansion lawsuit

Lawyers hired by Alaska lawmakers to sue Gov. Bill Walker over Medicaid expansion said in a court filing last week that the Alaska House can properly take over the appeal of a case originally brought by the Alaska Legislative Council even though no legislative body has voted to approve the move.

But one of the Senate leaders, John Coghill, R-North Pole, who supported the original lawsuit, said Wednesday that he didn't think the House could insert itself into the already-existing contracts between the two hired law firms and the 14-member Alaska Legislative Council, a committee of House and Senate lawmakers that meets year-round and that voted to sue Walker.

The Senate has refused to move forward with an appeal in the Medicaid expansion case, and the Alaska Legislative Council never voted on whether to appeal after it lost the case in Superior Court. The House has attempted to file the appeal on its own, which has led to sparring between attorneys and lawmakers.

"They think they can substitute themselves into the contract, I think they're wrong," Coghill said of the House. "They are proceeding with an appeal of their own and it doesn't fly under this contract."

Rep. Craig Johnson, R-Anchorage, the member of the House leadership who initiated the appeal, disagreed. He said the House "absolutely can" operate under the original contracts with the two law firms.

"Under the contract, there is the ability to substitute," Johnson said Friday. "We're the successor."

Attorneys for Walker from the Attorney General's office and the privately hired legislative attorneys continue to argue in a series of filings in state Superior Court over whether the House can legally substitute itself for the Legislative Council in appealing the council's loss in the original lawsuit.


The lawsuit started with a Legislative Council vote in 2015 and its hiring of a law firm in Washington, D.C., for a maximum of $400,000, and one in Anchorage, for up to $50,000. Among its administrative powers, the council can initiate lawsuits on the Legislature's behalf between regular legislative sessions. In August, it voted 10-1 to sue Walker in Superior Court after he decided to expand Medicaid without legislative approval.

Medicaid was expanded in Alaska, the council lost the Superior Court case and the House filed an appeal last month in the state Supreme Court.

Senate President Kevin Meyer, R-Anchorage, said Wednesday the Senate Majority did not have enough support to follow through with an appeal. There was never a vote, he said, but that was the feedback Senate leaders received.

Chad Hutchison, a staff member to Coghill and the official listed as project director for the Legislative Council's contracts with the two hired law firms, said Wednesday, "We made it crystal clear that neither the Senate nor the Legislative Council is party to the appeal."

Both the contract with the Washington firm, Bancroft PLLC, and the Anchorage firm, Holmes Weddle & Barcott, said the project director, Hutchison, has the authority to "oversee and direct the activities" of each firm and to approve periodic payments. Both contracts list a House aide, Mark Higgins, as vice project director. Higgins can oversee the activities of the law firms, but he can only direct activities and approve payments "in the event that Mr. Hutchison is not available," according to the contracts.

Hutchison said he never gave the go-ahead to file an appeal.

But Higgins did, under the direction of Johnson, said Stacey Stone, one of two named attorneys in the contract with Holmes Weddle & Barcott. Stone made that assertion in an interview May 17. Coghill said that Hutchison wasn't removed from the position of project director until Monday, about two weeks later.

"The removal of the project director is for the purpose of the current House appeal and the ongoing proceedings," Meyer wrote in an email on May 30 to attorneys, legislative staff and legislators.

"We're trying to not get in their way," Coghill said.

Both Anchorage and Washington law firms signed their latest court filing Tuesday, a direct response to the Alaska Attorney General's office opposition to the House taking over the appeal. It included Meyer's email as a piece of evidence and the Attorney General's office took issue with that.

In the Attorney General's opposition filed May 16 they wrote that the appeal was filed "at the direction of a single representative — Craig Johnson." They said Johnson did not have the authority to take the unilateral action without a majority vote authorizing it.

In a court filing Thursday, the Attorney General's office wrote that the court shouldn't consider Meyer's email because it's "essentially an unsworn affidavit produced solely for purposes of this litigation." They said there is no evidence that the House wants to participate in the lawsuit.

"This litigation is not a game of tag or hot potato," they wrote. "The Legislative Council cannot make the House an involuntary party simply by saying the House is 'it' or by tossing the unwanted case files to a legislative aide."

The Legislature's outside attorneys wrote in Tuesday's filing that the existing contracts were executed by the Legislative Council, the Senate and the House and the scope of work included handling any appeal to the Alaska Supreme Court.

But copies of the contracts themselves show that the only legislators that signed them were Sen. Gary Stevens, chair of the Legislative Council; Senate President Meyer; and House Speaker Mike Chenault, not the entire Senate and House. Meyer and Chenault are also members of the Legislative Council.

The Holmes Weddle & Barcott contracts says an appeal is to be covered by the $50,000 fee paid by the Legislature. The Bancroft contract allows for an additional $150,000 for an appeal.

"It would take an affirmative vote by the Council to rescind its authorization of the lawsuit to stop an appeal," the outside attorneys wrote. "But that has not occurred."


The attorneys wrote that after the Senate said it would not continue with an appeal, Hutchison, working for the Senate, "was directed to turn over all materials to Representative Johnson and the House Vice Project Director, Mark Higgins."

Sen. Coghill said that this did not mean the Senate abandoned the contracts.

Rep. Johnson said that when Coghill told Hutchison to turn over the materials, that's when the House became the project director.

"How could you be the project director if you don't have the material?" Johnson said.

As of Wednesday, Hutchison said, the Anchorage law firm was paid "a few thousand dollars under" $50,000 and the Bancroft law firm had been paid $250,000.

Coghill said the Senate would not make any more payments and he did not know where money for the appeal would come from.

Johnson said that when the Alaska Legislative Council initiated the lawsuit and approved the contracts, it anticipated the case would go all the way to the Supreme Court. That's why another vote to approve an appeal wasn't needed, he said.

Johnson said he expected that the appeal process would be completed within the funding caps in the already-established contracts. If it went over, it would be by a "minuscule amount," nothing compared to what the state might have to pay for Medicaid expansion, he said.


Medicaid expansion was projected to offer health care to about 40,000 low-income Alaskans, with the federal government paying 100 percent of the bill through the end of this year and scaling back to 90 percent by 2020.

If the federal government backs out, Johnson said, "then we're on the hook for hundreds of millions of dollars."

The decision on expanding Medicaid should have been made by the Legislature, he said.

House Speaker Chenault, R-Nikiski, and House Majority Leader Charisse Millett, R-Anchorage, did not respond to requests seeking comment last week.

In their brief, the outside lawyers argued that who represents the Legislature's interests is nobody's business but the Legislature's under the Alaska Constitution's separation of powers doctrine. It's not something that the courts or Walker should decide.

"The Council is an entity that acts on behalf of the House," they wrote. "The House is therefore obviously a party in interest to any litigation to which the Council is a party."

Tegan Hanlon

Tegan Hanlon was a reporter for the Anchorage Daily News between 2013 and 2019. She now reports for Alaska Public Media.