Judge to decide whether to dismiss ACLU lawsuit against Dunleavy over abortion veto
Attorneys for the State of Alaska are asking an Anchorage judge to dismiss a lawsuit against Gov. Mike Dunleavy over a controversial veto to the court system.
In June, Dunleavy vetoed $334,700 from the appellate courts 2020 budget, citing the Alaska Supreme Court's recent ruling on government-funded abortions:
"The Legislative and Executive Branch are opposed to State funded elective abortions; the only branch of government that insists on State funded elective abortions is the Supreme Court. The annual cost of elective abortions is reflected by this reduction. The Federal Government also prohibits any federal funds paying for elective abortions."
The American Civil Liberties Union of Alaska announced its filing of a lawsuit against Dunleavy over the move in July, calling the governor's action unconstitutional, brazen and vindictive. The cut represents one of Dunleavy's smaller vetoes, but the ACLU warns it could set a dangerous precedent if left unchecked.
ACLU of Alaska Executive Director Joshua Decker said the veto represents an act of retaliation because Dunleavy's personal political views are at odds with the court's ruling and the lawsuit claims the move violates the separation of powers doctrine.
The lawsuit also represents two other plaintiffs — attorney John Kauffman and former Republican legislative aid Bonnie Jack — and its requests include a declaration from the courts that Dunleavy's veto over abortion funding is unconstitutional, as well as a restoration of the vetoed funds.
Attorneys for the state and the governor filed a motion to dismiss the lawsuit. On Tuesday, Superior Court Judge Jennifer Henderson heard oral arguments on the issue from both sides.
"These plaintiffs filed this case because Governor Dunleavy’s veto represents an unprecedented threat to the integrity of the judiciary in this state," said the ACLU of Alaska's legal director Stephen Koteff. "In all of the cases, in all of the law review articles, the scholarly works on the separation of powers and judicial independence, nowhere, nowhere, can one find reference to such a stunning and blatant act of retaliation against a court for carrying out its constitutional duty."
Attorney Jessica Leeah, representing the governor, argued the court cannot make a decision on issues raised in the lawsuit without politicizing itself.
"This lawsuit is political and by asking this court to dive into a political dispute that implicates the powers of all three branches of government it is plaintiffs who are trying to politicize the judiciary," she said.
Later, Leeah discussed the role of the legislative branch in addressing a governor's vetoes.
"They also have a constitutional power to either override a veto or not override a veto, and they did not override the veto," she argued. "So what plaintiffs are asking you to do, one judge, to step into the shoes of 45 legislators and that’s problematic."
The symbolic amount of the vetoed funds, Leeah argued, did not constitute an "actual interference" with the court system.
"The veto is a constitutional power that the governor has. The governor exercised that veto. The only issue, I mean, the only issue is that the governor added a political statement to it. Had he made a more benign statement, he could have vetoed that money and there would be no issue at all," Leeah said.
On behalf of the plaintiffs, Koteff implored the court to deny the motion to dismiss the lawsuit.
"This is not some squabble between the legislative and executive branches of government. This is a direct attack on the independence of the judiciary. The court is being called upon here to exercise its inherent power," he argued, later telling the judge, "N
In a previous interview with KTVA, when asked about the veto contradicting his statement as a candidate, the governor said:
"The Legislature sent us a budget. And in the budget, it stated that the Legislature did not want money going to funding abortions, state money. I’m pro life as well. And so, again, the idea is that if this is a unilateral decision by the courts, they should help assist in paying for these procedures."
The veto, now at the center of the ACLU lawsuit, is also cited as grounds for a recall petition, by the group working to recall Dunleavy.
Henderson said she would take time to consider the arguments from both parties and will issue her decision in writing.
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