The Alaska Legislature is suing Gov. Mike Dunleavy for not sending out the school funding this week that legislators had appropriated in 2018.
The complaint was filed Tuesday in Superior Court in Juneau, the day after the state was supposed to start distributing funding to public K-12 schools for the current fiscal year, which started July 1. The funding was not sent Monday, triggering the lawsuit.
Earlier this year, legislators braced for this scenario and were prepared to send their dispute with Dunleavy to court. The lawsuit comes as a series of other disagreements play out, including a divided Legislature wrestling with Dunleavy’s $444 million in vetoes to the state operating budget.
The latest lawsuit boils down to whether it’s legal for the Legislature to forward fund education, which is what it did last year. As the court answers the question, both Dunleavy and legislators say they’d like monthly payments to continue to go out to public schools to minimize disruption.
Their dispute over education funding stems from 2018. Legislators then approved two years of funding for public schools, saying at the time that they wanted to provide schools with some stability. They agreed to fund schools in 2019-20 at the same level as the prior year, with an additional $30 million, one-time grant. Then-Gov. Bill Walker approved the budget.
“That issue went to the governor for veto, and Walker chose not to veto it, so it became law,” said Sen. Gary Stevens, R-Kodiak and chairman of the Legislative Council, the group that voted to file the lawsuit. “So our contention is the governor doesn’t have the right to veto it again.”
But Attorney General Kevin Clarkson said in a legal memo that the second year of funding, for the 2019-20 school year, is unconstitutional. It violates the annual budgeting process mandated by the state constitution, the memo says. It also violates the governor’s right to veto and the prohibition against dedicated funds, it says.
Legislators say the funding is legal. The governor, by withholding the money, is failing to follow a constitutional appropriation by the Legislature, they say. This year, legislators didn’t include the 2019-20 education funding in the operating budget for the current fiscal year — despite calls from the governor to do so. Legislators said they didn’t have to because they already approved the funding last year.
“The separation of powers says that the Legislature is the only body that can pass the budget,” Stevens said. “If we pass a budget and the governor decides he doesn’t want to enforce that budget, then there’s no reason for a Legislature.”
Dunleavy’s administration says that since the 2019-20 funding isn’t legal, schools are not funded in the current fiscal year.
Still, in a joint motion filed Tuesday, both Dunleavy’s administration and the Legislature asked the court to order monthly payments to continue to go out to schools amid the lawsuit. The payments will not include the one-time $30 million, said the motion. A judge will have to sign off on the request.
Some school district officials have warned that schools could close if the funding comes too late.
In a statement Tuesday, Clarkson characterized the dispute as “a clear constitutional disagreement.”
“But that should not impact our schools,” he said. “Both the governor and the Legislature agree funding should continue, even if we disagree on whether there is a valid appropriation to fund schools.”
The $30 million one-time payment will depend on the final court ruling in the case, according to assistant attorney general Maria Bahr.
The complaint in the lawsuit was filed by the Legislative Council on behalf of the Legislature. But not all legislators agree with it.
In May, legislators authorized the council to sue the governor after a 23-14 vote in the House and a 14-4 vote in the Senate. In a statement Tuesday, Rep. Lance Pruitt, R-Anchorage, called the lawsuit “absolutely unnecessary.”
“No matter who prevails, this sets potentially dangerous precedent for the future,” said Pruitt, one of the governor’s staunchest supporters.
Alaska Education Commissioner Michael Johnson and Kelly Tshibaka, commissioner of the state Department of Administration, are also named as defendants in the lawsuit.