Senator says Medicaid lawsuit can't proceed without vote by House and Senate

JUNEAU — A key senator says that the full House and Senate must vote on whether to pursue an Alaska Supreme Court appeal of the Legislature's lawsuit against Gov. Bill Walker over Medicaid expansion, not just the committee that authorized the case last summer.

A vote of both chambers would force all legislators to put their positions on pursuing the costly lawsuit on the record.

The Legislature would have to appeal to preserve any hope of winning the case. It lost the first round last week when Anchorage Superior Court Judge Frank Pfiffner issued a 26-page ruling dismissing the lawsuit, which asked him to overturn Walker's decision to expand the health care program without legislative approval.

The next day, Sen. John Coghill, R-North Pole, who led the push for the lawsuit, said the Legislature would appeal, saying it was a separation-of-powers matter that should be resolved by the Alaska Supreme Court. But in an interview Wednesday, Sen. Gary Stevens, R-Kodiak, said the Legislature couldn't take that step without a floor vote.

Stevens chairs the Legislative Council, the 14-member House-Senate committee that includes just one member of the Democratic minority, Rep. Sam Kito of Juneau.

The council has the power to initiate lawsuits on the Legislature's behalf between regular legislative sessions. It voted 10 to 1 in August to sue Walker in Superior Court.

But with lawmakers currently working in Juneau, Stevens said Wednesday that he's received an opinion on the appeal from the Legislature's chief lawyer, Doug Gardner. The opinion says a vote by the full House and Senate is required before Pfiffner's ruling can be appealed to the Supreme Court, Stevens said.

The Legislature has until the end of the month to act under court rules, based on a 30-day clock that began ticking when Pfiffner's decision was issued March 1.

Stevens wouldn't release the legal opinion from Gardner, saying he hadn't shared it yet with other legislators. But he said that Gardner told him, "It's not enough to depend on what the Legislative Council said."

"It should not proceed to the Supreme Court without some action by the Legislature," Stevens added.

Gardner told Stevens' office that either the House or Senate could vote to pursue the case in its own name without the other chamber but would also likely have to cover the costs.?

Coghill, in an interview Wednesday, said Gardner's opinion is "debatable."

He noted that the contract for the Legislature's attorneys in the Medicaid case includes a clause laying out compensation for a Supreme Court appeal — and he pointed out that the contract was signed by the same legal department that drafted the opinion for Stevens.

Coghill said he hadn't made up his mind whether to support or oppose a vote by the full House or Senate. But he acknowledged that such a vote could be politically delicate.

Some of the moderate members of the Republican-led majority caucuses in both chambers, including Stevens, say they support Medicaid expansion. It's 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 before scaling back to 90 percent by 2020.

But lawmakers have never taken an up-or-down vote on the issue, with conservative legislative leaders refusing to advance expansion bills to the floor during last year's session.

After Walker announced in July that he'd expand Medicaid unilaterally, Legislative Council members who voted to sue him said their case was about the separation of powers — not the merits of expansion itself.

Coghill, however, acknowledged that a debate in the House or Senate over whether to appeal to the Supreme Court would likely get wrapped up in the broader fight over expansion.

"How do you keep it on the separation of powers?" Coghill asked. "Politically, right now, it gets so ramped up."

Coghill said legislative leaders will likely wait to decide how to proceed until after the House and Senate wrap up their work on the state operating budget, which should be finished by early next week.

House Democrats plan to force the issue Thursday, when they will offer a budget amendment to revoke the $150,000 for the Alaska Supreme Court appeal that the Legislative Council approved in its contract with a Washington, D.C., law firm.

"Why should we spend $150,000 on further appeal to the Supreme Court when all indications are that we will lose again?" said Rep. Matt Claman, D-Anchorage, who will introduce the amendment.

In interviews Wednesday, four moderate members of the House majority — Republicans Paul Seaton of Homer, Gabrielle LeDoux of Anchorage and Cathy Munoz of Juneau and Democrat Bryce Edgmon of Dillingham — wouldn't say how they would vote on such an amendment.

Munoz was the only one of the four who would offer an opinion on whether the appeal to the Supreme Court should proceed. She said it shouldn't.

Nathaniel Herz

Nathaniel Herz is a reporter for the Anchorage Daily News. He’s been a reporter in Alaska for nearly a decade, with stints at ADN and Alaska Public Media. He’s reported around the state and loves cross-country skiing.