Gov. Mike Dunleavy holds a press conference at the Capitol on Tuesday, April 9, 2019. (Juneau Empire file photo)

Gov. Mike Dunleavy holds a press conference at the Capitol on Tuesday, April 9, 2019. (Juneau Empire file photo)

Judge rules against governor on appointments

The decision by Superior Court Judge Philip Pallenberg came in a case brought in late December by the Legislative Council

By Becky Bohrer

Associated Press

JUNEAU — Alaska Gov. Mike Dunleavy was barred by law from making recess appointments of the same individuals lawmakers had failed to confirm to the posts, a state court judge ruled Thursday.

The decision by Superior Court Judge Philip Pallenberg came in a case brought in late December by the Legislative Council, which argued appointments presented by Dunleavy in early 2020 lapsed in December after lawmakers failed to act on them. Attorneys for the state, representing Dunleavy, had argued that some provisions of law dealing with government appointments were unconstitutional.

The council, composed of House and Senate leaders, had asked Pallenberg to block Dunleavy from continuing with the appointments and from reappointing people to posts until the start of the legislative session, which began on Jan. 19. Pallenberg, in a ruling last month, refused.

His decision Thursday came in the underlying case.

Traditionally, the House and Senate meet jointly to consider gubernatorial appointments near the end of a regular session. But last year amid COVID-19 concerns, lawmakers passed a law allowing them to adjourn and take up confirmations later.

The law said if lawmakers didn’t act on the appointments either a month after an initial pandemic disaster declaration expired or by Jan. 18 — whichever was first — that amounted to them declining to confirm those people. The declaration ended Nov. 15.

Dunleavy, in a letter to legislative leaders on Dec. 16, said he viewed as valid appointees the Legislature had not acted to confirm. He said he would resubmit the names of individuals who had not been confirmed and submit any new picks for consideration during the session now underway.

Appointments affected included the state revenue commissioner, state public defender and members of many boards and commissions.

Pallenberg wrote the question of whether the Legislature’s “rejection of these appointees by failing to act was a wise or prudent thing to do” was not for the court to answer.

“The fact is the appointees were rejected as of December 15, 2020 by operation of law, and the Governor now claims that he had the power to reappoint them by recess appointment the next day, despite a law prohibiting him from doing so,” Pallenberg wrote.

Alaska has a longstanding law prohibiting a governor from making a recess appointment of someone already rejected by the Legislature, Pallenberg wrote.

The Department of Law, in a statement, said it was reviewing the order and awaiting a final judgment to determine future options, including a possible appeal. Appointees continue to serve under the governor’s reappointments that occurred after the Legislature convened Jan. 19, the statement says.

A message seeking comment also was sent to the Legislature’s top lawyer.

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