The reach of the Alaska attorney general’s common law powers was the central focus In Taylor v. Alaska Legislative Affairs Agency, No. 3AN-21-0639ICI (July 29, 2021). On June 16, 2021, the Alaska Legislature passed an appropriations bill to fund Alaska government for the year. The bill included a provision giving it effect on June 30, 2021, but that provision did not receive the required two-thirds supermajority vote. Under Alaska statutes, the bill would have come into effect in 90 days, after the start of the new fiscal year on July 1, and the government would have had to shut down after that date. The legislature believed that the governor could use funds from a prior appropriation to operate the government and avoid a shutdown, but the attorney general opined that such a course would violate the Alaska constitution.
The attorney general then filed suit against the Legislative Affairs Agency, the agency that provides administrative services for the operation of the legislature. The lawsuit alleged that the LAA told the legislature that the LAA “will have the authority to spend state funds authorized by the FY 2022 budget without limitation,'” in violation of Alaska constitutional law. The lawsuit asked for a declaratory judgment that expenditure of state funds without an effective appropriation is unlawful, with some limited exceptions. The LAA moved to dismiss the suit and the legislature approved the appropriations with a two-third majority before June 30.
The court first determined that even though the case was now moot, because the legislature had appropriated the funds, the suit was subject to the “public interest exception” which applies to cases where (1) the disputed issues are capable of repetition, (2) the mootness doctrine may cause repeated circumvention of the issues; and (3) the issues presented are so important to the public interest as to justify overriding the mootness doctrine. The court found that each of these factors applied in this case.
Turning to the substance of the case, the court reviewed Article III of the Alaska Constitution, which gives the governor the power to bring actions in the name of the state to enforce Alaska statutes, but also provides that this authority “shall not be construed to authorize any action or proceeding against the legislature.” The Alaska supreme court has interpreted this language to prohibit actions brought in the name of the state against the legislature. Because the attorney general was seeking broad relief that addressed expenditure of public funds generally, not just those expended by the Legislative Affairs Agency, the court found that the suit was being brought against the legislature itself, rather than against the Legislative Affairs Agency as a service agency for the legislature.
The attorney general argued that this suit was brought under the attorney general’s “common law authority to file suit to protect the public interest,” which has been recognized and upheld by the Alaska supreme court. The attorney general argued that although this suit sought to enforce compliance with the law, it was brought under the attorney general’s independent common-law powers, “‘not in service of the governor’s responsibility to faithfully execute” the laws.”
The court reaffirmed that the attorney general “has the common law power to bring suits to enforce compliance with Alaska statutes.” However, in this case, the governor stated that he “ha[d] asked my Attorney General to seek a determination of the issue through the Alaska Court System.” The court held, “Despite his independent powers, the Attorney General is the head of a principal executive department, and therefore serves under the supervision of the Governor and at his pleasure. Based on Governor Dunleavy’s statements, . . . the Court concludes that Attorney General Taylor’s suit is a suit by the Governor in the name of the State.”
The court also rejected the attorney general’s argument that even if the governor asked the attorney general to file suit, that “does not rob the attorney general of his independent authority to file suit nor does it bring the lawsuit within the scope of” the limitation on suits against the legislature. The court rejected this argument, noting that it would create a large loophole in the constitutional prohibition against such suits: “The Attorney General is supervised by and serves at the pleasure of the Governor. If the Attorney General’s statutory and common-law powers allow him or her to bring suits against the legislative branch, the Governor could evade Section 16’s prohibition and sue the Legislature whenever he wished simply by directing the Attorney General to bring the suit himself.”