The Dunleavy administration is seeking to spend up to $125,000 in state money on a Virginia-based private law firm as it prepares for a lengthy legal fight with Alaska’s public employee unions.
The state is doubling down on an earlier $50,000 contract with Consovoy McCarthy, a firm with strong ties to President Donald Trump and conservative legal causes nationwide.
That contract, signed Aug. 2, calls for the state to pay founding partner Will Consovoy $600 per hour for his work with the state. An associate attorney would be paid $450 per hour. In total, the current contract says the firm can’t bill more than $50,000. According to state records, the Department of Law paid the firm $34,875 on Sept. 27.
When it picked Consovoy McCarthy, the state didn’t put the contract out to bid. State regulations permit no-bid legal-services contracts if they’re worth less than $50,000. The contract can be amended, also without a bid, as long as the total cost doesn’t go above $100,000, the limit for what the state considers “small purchases.”
Senior assistant attorney general Cori Mills said this week that an extension is being negotiated to increase the Consovoy McCarthy contract to $125,000. Under regulation, exceeding the $100,000 limit requires written justification, but Mills said she does not believe such justification yet exists.
Last month, the state and its employee unions traded lawsuits in a dispute over union membership and dues. Under state Attorney General Kevin Clarkson’s interpretation of a 2018 U.S. Supreme Court ruling, the state’s unionized public employees must tell the state annually that they intend to remain members of the union and that it’s OK for the state to automatically deduct union dues from their paychecks. The unions say the state is interfering with the relationships between union members and their unions.
The system envisioned by Clarkson and the administration of Gov. Mike Dunleavy would be the first of its kind in the nation.
Last week, a judge issued a preliminary injunction that prevents the state from implementing Clarkson’s decision, at least temporarily. Clarkson himself said the injunction is a “speed bump” in a “much longer legal battle which will likely reach the U.S. Supreme Court.”
“If your goal is to take it to the U.S. Supreme Court, then this is the firm that you would hire,” said Jahna Lindemuth, who was attorney general under former Gov. Bill Walker. Lindemuth is now in private practice and has represented clients against the state.
Founded in 2014 by Will Consovoy, a former law clerk for Supreme Court Judge Clarence Thomas, and Tom McCarthy, former law clerk to a judge in the D.C. Circuit Court of Appeals, Consovoy McCarthy has grown rapidly and taken on cases across the country, usually representing those seeking a conservative interpretation of the law. A May profile by the National Law Journal described it as a “favorite firm for Trump” and said in its first five years, “it has become a home for numerous former U.S. Supreme Court law clerks, a farm system for top legal jobs in the government and federal judiciary, and served as counsel to the president of the United States.”
The firm has a hand in cases across the United States:
• As the U.S. Supreme Court considers whether civil rights laws cover sexual orientation and gender identity, the firm has defended the right of employers to fire LGBT employees.
• In Kansas, Consovoy McCarthy was paid more than $396,000 by that state for its work in a losing lawsuit against Planned Parenthood.
• In Wisconsin, that state hired Consovoy McCarthy at $500 per hour for an anti-abortion lawsuit.
• The firm is representing President Donald Trump as he attempts to prevent the release of his income tax returns.
• Georgia’s attorney general hired the firm to defend an abortion ban passed by that state’s legislature and signed by its governor.
• It represented Harvard students in a failed attempt to overturn the school’s race-based admissions policy.
Consovoy did not return calls seeking comment for this article. A clause in the firm’s contract with the state says it must “decline any comment” from news media beyond confirming factual information.
Mills said Clarkson himself picked Consovoy McCarthy to help the state “after conducting research on available firms.”
At that time, state ferry workers were on strike, the state was trying to finalize labor contracts with some unions, and Clarkson was working on the legal opinion that led to its showdown with the unions.
“The contract was procured during the IBU strike and while the AG Opinion was being finalized and given the urgent need for immediate services to address possible constitutional issues, a firm qualified and available to serve the Department of Law was selected by the Attorney General,” Mills said.
Hiring additional help isn’t unusual for the Department of Law. In the fiscal year that ended June 30, the state’s online checkbook shows payments to dozens of legal firms for services. Some of those payments are much larger than the contract given to Consovoy McCarthy. The international firm Greenberg Traurig, for example, was paid $1.1 million during the fiscal year to assist the Alaska Gasline Development Corp.
But most of the additional hired help comes from firms within the state, and of the Outside firms hired this year, the online checkbook indicates Consovoy McCarthy is the only one that hasn’t been hired by Alaska state government before.
While this appears to be Consovoy McCarthy’s first contract with the state, it is not new to Alaska issues. It assisted John Sturgeon in his suit against the National Park Service over hovercraft access on Alaska rivers.
Anchorage attorney Matt Findley was Sturgeon’s primary lawyer, and said that when Sturgeon’s case reached the U.S. Supreme Court in 2015, he called around and was told to talk to Consovoy.
“He is a very smart guy. He is very good to work with,” Findley said of his experience with Consovoy himself. “Nothing but respect for his skill as a lawyer.”
For anyone pursuing a case to the U.S. Supreme Court, he said it makes sense to hire a firm like Consovoy’s.
“You get somebody for whom that’s their home turf,” he said.