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Judge to issue initial ruling Friday on Alaska Legislature's Medicaid lawsuit

  • Author: Nathaniel Herz
  • Updated: September 28, 2016
  • Published August 27, 2015

Live stream: Superior Court Judge Frank Pfiffner is delivering his ruling on the Alaska Legislature's lawsuit to stop Gov. Bill Walker from unilaterally expanding the public Medicaid health care program.

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Original story:

A trial court judge said Thursday he would deliver an oral ruling Friday on the Alaska Legislature's lawsuit to stop Gov. Bill Walker from unilaterally expanding the public Medicaid health-care program.

After initial oral arguments in the case, Judge Frank Pfiffner told a full courtroom Thursday afternoon he'd issue his ruling at noon the following day.

The ruling, Pfiffner said, will approve or deny the Legislature's request to temporarily bar Medicaid expansion while legal questions are fully argued.

Friday's decision will not address the underlying question of whether Walker's executive power allows him to use federal money to expand the Medicaid program without legislative approval.

Pfiffner said his schedule was being squeezed because Anchorage courts are closed to nonemergency proceedings early next week, due to security measures stemming from a U.S. State Department conference and a visit from President Barack Obama. The Walker administration plans to start signing people up for the expanded Medicaid program Tuesday unless Pfiffner bars it from doing so.

Lawmakers, top aides from the Legislature and the Walker administration, and citizens packed the benches in Pfiffner's courtroom in downtown Anchorage on Thursday, spilling over into a separate courtroom where an audio feed was played.

But Pfiffner made it clear during the 75 minutes of argument that his word would not be final.

The case will be appealed "in an instant" to the Alaska Supreme Court, "no matter how much time I spend on this issue, no matter whether I issue a lengthy decision — and I'm known for writing lengthy decisions," Pfiffner said.

Thursday's debate came after a flurry of motions and filings over the last few days, with a pair of state attorneys working until 3 a.m. Thursday morning.

The arguments pitted a lawyer from the state attorney general's office, Dario Borghesan, against Erin Murphy, an attorney for Bancroft Pllc., a Virginia-based firm that's often taken up conservative causes -- including the Supreme Court challenge of the Affordable Care Act, or "Obamacare," by more than two dozen states.

The hiring of Murphy's firm at a cost of up to $400,000 was authorized last week in a 10-1 vote by a legislative committee, with all 10 members of the House and Senate Republican-led majorities lined up against Rep. Sam Kito III, the committee's lone representative from the Democratic minority.

The lawsuit followed Walker's announcement in July that he would unilaterally expand Medicaid to newly cover as many as 40,000 low-income Alaskans under "Obamacare" — some of whom face steep health care costs without the federal subsidies the law created for people earning more money.

Walker, a Republican-turned-independent, had asked lawmakers to accept federal money to cover the cost of expansion during the legislative session earlier this year. But the Republican-led majorities first stripped expansion money from the governor's budget proposal, then wouldn't take votes on a stand-alone expansion bill that Walker offered later.

The federal government pays the full cost of expansion through 2016 — with the exception of administrative costs — before scaling back its support to 90 percent in 2020. The Walker administration says expansion will save Alaska millions of dollars annually by replacing state health care spending with federal money.

Some legislators, however, have said they're wary of adding new recipients to the Medicaid program when Congress could adjust its level of support for the program, and with Alaska facing a budget crisis. They've also cited reports that Medicaid enrollment under "Obamacare" has exceeded projections.

But Murphy, the attorney working for the Legislature, on Thursday reiterated majority lawmakers' arguments that the suit wasn't about the merits of Medicaid expansion.

She made her arguments on a projector screen in the courtroom, speaking from a glassed-in East Coast office as the sun appeared to set behind her.

"We're not here to talk about whether Medicaid is or is not good for Alaska," Murphy told Pfiffner. "This case is about who has the power to make that decision under the laws and the constitution."

Walker is trying to expand Medicaid unilaterally under an established committee process that allows him to spend federal money without legislative approval.

Lawmakers from the House and Senate majorities argue, however, the move violates a separate state statute that requires legislative approval before Medicaid can be expanded to groups whose care isn't required under federal law.

The Legislature is asking Pfiffner to issue a temporary restraining order or injunction blocking Medicaid expansion from starting Sept. 1, to prevent Walker from inflicting "immediate and irreparable injury" on the state.

"The governor's blatant disregard for the state's Medicaid statute and constitution are alone enough to establish irreparable harm to both the Legislature and the state's residents," one of the Legislature's court filings said.

Worse still, the filing adds that "enrolling individuals in a program for which they are not eligible threatens to engender massive confusion … and to expend scarce resources implementing and administering a state program that ultimately will need to be undone."

Borghesan, the Walker administration's attorney, argued the Legislature hadn't proven that starting Medicaid expansion on Sept. 1 would result in irreparable harm if the move is ultimately deemed unlawful. The worst that could happen, he said, is legislators are left unsure about the extent of their powers for a few weeks or months.

"That's not an irreparable harm — that's not even a real harm," Borghesan said.

Borghesan emphasized the impact expansion would have on the state's residents, ticking through a list of people who'd submitted affidavits about horrific medical problems they said would be helped by Medicaid coverage.

At one point, though, Pfiffner interrupted.

"I understand what you're saying, that there are all kinds of valid policy arguments to support what the governor is doing. The Legislature, on the other hand, says, 'We ain't got no money! We can't afford this,'" Pfiffner said. "But is that really my job here now, to evaluate those different policy considerations?"

He then quoted a passage from the Supreme Court Chief Justice John Roberts' opinion in the landmark lawsuit over the ACA. The opinion says judges can only interpret the law, and policy decisions are up to elected leaders "who can be thrown out of office if the people disagree with them."

"It is not our job to protect the people from the consequences of their political choices," Pfiffner quoted the decision as saying.

Pfiffner shot sharp questions at both attorneys and gave little indication about how he'd rule when he returns to his courtroom Friday.

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