Legislature(2021 - 2022)GRUENBERG 120
03/03/2021 01:30 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| Presentation: Governor's Appointments & Alaska Legislative Council Vs. Dunleavy | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 3, 2021
1:39 p.m.
MEMBERS PRESENT
Representative Matt Claman, Chair
Representative Harriet Drummond
Representative Liz Snyder
Representative Jonathan Kreiss-Tomkins
Representative David Eastman
Representative Christopher Kurka
MEMBERS ABSENT
Representative Sarah Vance
OTHER LEGISLATORS PRESENT
Representative Sara Hannan
COMMITTEE CALENDAR
PRESENTATION: GOVERNOR'S APPOINTMENTS & ALASKA LEGISLATIVE
COUNCIL VS. DUNLEAVY
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
MEGAN WALLACE, Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Services
Juneau, Alaska
POSITION STATEMENT: Presented on Governor's Appointments &
Alaska Legislative Council vs. Dunleavy
ACTION NARRATIVE
1:39:00 PM
CHAIR MATT CLAMAN called the House Judiciary Standing Committee
meeting to order at 1:39 p.m.
Representatives Drummond, Claman, and Snyder (via
teleconference) were present at the call to order.
Representatives Kurka, Eastman, and Kreiss-Tompkins (via
teleconference) arrived as the meeting was in progress.
^Presentation: Governor's Appointments & Alaska Legislative
Council vs. Dunleavy
Presentation: Governor's Appointments & Alaska Legislative
Council vs. Dunleavy
1:39:45 PM
CHAIR CLAMAN announced that the only order of business would be
a Presentation, titled "Governor's Appointments & Alaska
Legislative Council vs. Dunleavy."
CHAIR CLAMAN remarked that the House Judiciary Standing
Committee had previously submitted written questions, provided
in the committee packet, to Legislative Legal Services, and its
Director, Megan Wallace, was scheduled to present the committee
with answers.
1:40:34 PM
MEGAN WALLACE, Director, Legislative Legal Services, Legislative
Affairs Agency, in offering an answer to the first question
regarding what issues Judge Pallenberg addressed in the final
order, first, provided a synopsis in advance of addressing the
committee's previously submitted questions. She said that,
during the Thirty-First Alaska State Legislature, House Bill 309
was passed and enacted, which extended the time for the
legislature to confirm or decline to confirm an appointment
presented by the governor. She added that the specific
provision at issue provided that the failure of the legislature
to act on appointments during the second regular session would
become tantamount to a declination [of the appointment] the
earlier of either January 18, 2021, or thirty days after
expiration of the declaration of disaster from March 11, 2020.
She explained that the expiration of the declaration was
November 15, 2020, and 30 days after that date was December 15,
2020.
MS. WALLACE further explained that on December 16, 2020, the
governor issued letters to the then-presiding officers that the
appointees who had not yet been confirmed would continue to
serve valid appointments. She explained that the continuation
of the service of [the appointees] was the determining factor
for the Legislative Council at the time to file suit in December
of 2020. She referred to the summary judgment issued by Judge
Pallenberg, and she stated that a final judgment in the case,
entered on February 25, 2021, that found that the legislature
enacted House Bill 309 validly and that a violation of neither
the Alaska State Constitution nor the separation of powers
doctrine was found.
MS. WALLACE explained that, as a result of the lawsuit brought
by the Legislative Council, the governor filed a cross motion
for summary judgment claiming that House Bill 309 and the
procedural statute governing appointments, Alaska Statute (AS)
39.05.080(3) were both unconstitutional, neither of which was
found in the judgment. She added that the final judgment found
that Article 3, Sections 25 and 26 of the Alaska State
Constitution does not require the legislature to meet in joint
session to decline appointments. She added that the final
judgment also confirms that the appointments presented by the
governor during the second legislative session of the Thirty-
First Legislative Session became tantamount to declination on
December 15, 2020, and that the governor had no legal authority
to continue the appointments nor to reappoint the same persons
to those positions after their appointment became tantamount to
declination.
1:47:19 PM
MS. WALLACE added that the final judgment further provides that
the appointments were not valid from December 16, 2020, until
the time at which those appointments were presented to the first
session [of the Thirty-Second Alaska State Legislature]. She
drew attention to the final paragraph of the final judgment
stating that the court expressed no opinion on the ability for a
person to contest the action of a person whose appointment was
not valid during the time in question.
1:48:26 PM
MS. WALLACE referred to the next question by the committee,
which read [original punctuation provided]:
How did the final order differ from his earlier
decision denying the request for injunctive relief?
MS. WALLACE explained that, after the Legislative Council filed
its complaint in [the Alaska] Superior Court, it sought a
preliminary injunction preventing the governor from permitting
the continuation of appointments as he did through his December
16, 2020, letter to the then-presiding officers. She stated
that the order of the injunction was not based on its merits but
on purely legal issues and no factual disputes, which led to
summary judgment.
1:50:01 PM
MS. WALLACE suggested that the primary question related to the
judgment is the third question asked by the committee, which
read [original punctuation provided]:
What is the impact of Judge Pallenberg's decision on
re-appointment of commissioners who were never
confirmed?
MS. WALLACE explained that the legislature never disputed the
governor's power to reappoint persons that had been considered
declined by apparition of law. She added that the reason that
the ability of the governor to reappoint appointees was not
contested is due to language in AS 39.05.080(3) which read:
. The governor may not appoint again the same person
whose confirmation was refused for the same position
or membership during the regular session of the
legislature at which confirmation was refused. The
person whose name is refused for appointment by the
legislature may not thereafter be appointed to the
same position or membership during the interim between
regular legislative sessions.
MS. WALLACE explained that since the restriction on
reappointment was only in the interim between regular sessions,
the governor, under AS 39.05.080(3) the governor was free to
reappoint those persons at the beginning of [the first regular
session of the Thirty-Second Alaska State Legislature], which,
in large p[art, is what he did.
1:51:55 PM
MS. WALLACE drew attention to question 3. a. by the committee,
which read as follows [original punctuation provided]:
Is the federal structure different than our state
structure?
MS. WALLACE explained that the difference between state
appointments and federal appointments is that state appointments
may begin serving immediately, whereas federal appointees must
await confirmation before serving.
1:52:36 PM
MS. WALLACE next addressed the fourth question, which asked how
the Pallenberg decision affected several categories of
appointees, the first listed read as follows [original
punctuation included]:
A Governor's appointee named in 2020 before the
legislature adjourned (example: Lucinda Mahoney,
Revenue Commissioner);
MS. WALLACE restated that it had not been disputed that the
governor had the power to reappoint persons who had previously
been considered declined by apparition of House Bill 309 for
consideration in [the Thirty-Second Alaska State Legislature]
and the legislature is free to consider appointments made during
the current legislative session for confirmation in a joint
session.
1:53:42 PM
MS. WALLACE addressed the next category of appointees listed
which read as follows [original punctuation provided]:
A Governor's appointee named in 2020 after the
legislature adjourned or 2021 (example: Treg Taylor,
Attorney General);
MS. WALLACE stated that the lawsuit and Pallenberg decision
specifically addressed only appointments submitted to the
legislature during the second regular session of the Thirty-
First Alaska State Legislature and that any appointments made
after that time would follow the prescribed statutory
confirmation process, which she stated her understanding to be
what had occurred with the example asked by the committee.
1:54:50 PM
MS. WALLACE addressed the next category of appointees listed
which read as follows [original punctuation included]:
A Governor's appointee named in 2020 before the
legislature adjourned who was subject to a statutory
process before the governor's appointment (example:
Samantha Cherot, Public Defender);
MS. WALLACE stated that she did not feel comfortable to offer a
specific opinion on any statutory appointments, adding that
there exist statutory appointments which have their own
statutory requirements. She advised that because there is
ongoing litigation, the committee should ask the Alaska Judicial
Council any questions about the impact of the lawsuit on the
Public Defender's appointment or the council's position on the
matter.
1:55:52 PM
MS. WALLACE addressed the final category of appointees listed,
which read as follows [original punctuation provided]:
A Chief Justice's appointee named in 2020 before the
legislature adjourned (example: a public member
appointee to the Select Committee on Legislative
Ethics).
MS. WALLACE explained that appointments to the Select Committee
on Legislative Ethics is governed by AS 24.160.130 and requires
that appointees be ratified by two-thirds of the membership of
both legislative bodies; however, it does not specify that a
joint session is required. She stated her understanding to be
that those appointments had been ratified by each body prior to
the extended recess in 2020. She stated her understanding that
the Pallenberg decision would not have any impact on those
appointments.
1:57:16 PM
MS. WALLACE drew attention to question 5 by the committee, which
read as follows [original punctuation provided]:
Does a committee that holds a confirmation hearing
have the option of:
a. Not moving that nomination forward following a
hearing in the committee and, having "held" a
nomination in committee, thereby have the power to
prevent the joint session from considering that
nomination?
b. Not holding a confirmation hearing in committee
and, similar to 6.a., thereby have the power to
prevent the joint session from considering that
nomination?
c. What is the impact in scenario 6.a. or 6.b. (one
body not moving a nomination forward) if the other
body forwards that nomination to the joint session?
MS. WALLACE said AS 39.05.080, which governs the procedure for
appointments, "contemplates" that committees will consider the
governor's appointees prior to a joint session; however, "those
provisions related to committee action are legislative
procedural statute." She said the courts are, in general,
unwilling to invalidate actions wherein the legislature should
fail to follow its own rules of procedure, as long as the
constitutional requirement is not impacted by that procedural
violation. She added that the issue had, to her knowledge,
never been litigated, " so it would be a matter of first
impression." She continued as follows:
I think when you look at the Alaska Supreme Court's
decisions regarding the unwillingness to weigh in in
matters of legislative procedure in the absence of a
constitutional requirement, that the committees'
failure ... to take up ... an appointment or to not
pass it out or to hold the appointment in committee
would not impact the legislature's ability to hold a
vote on that appointment in joint session. In other
words, the Alaska Constitution, for example, doesn't
require the ... appointee to pass out of a committee
before the legislature has the power to confirm that
individual. So, ... it's my opinion that even if a
committee were unable or unwilling to forward the
name, that when the ... body gets together in joint
session and becomes the unicameral body, that the body
can still act on that ... appo1intment that was
presented to the legislature.
2:00:45 PM
MS. WALLACE drew attention to question 6 by the committee, which
read as follows [original punctuation provided]:
Is the Governor raising any issues on appeal that
Judge Pallenberg did not decide?
MS. WALLACE stated that the appeal is just getting underway.
She said that the statement of points on appeal indicates that
has been filed indicates that the Superior Court erred in
granting summary judgment in favor of the legislature and
concluding that AS 39.05.080(3) and House Bill 309 purport to
authorize the legislature to reject appointments by inaction and
do not violate Article 3, Sections 26 and 27 of the Alaska State
Constitution. She continued as follows:
They also contest that this governor didn't have
recess appointment authority under Article 3, Section
27 of the Alaska State Constitution.
MS. WALLACE offered to entertain additional questions from the
committee and cautioned that there is ongoing litigation, so she
may not be able to answer all questions.
2:03:32 PM
CHAIR CLAMAN asked whether a federal appointee whose appointment
was declined could be reappointed by the President.
2:04:05 PM
MS. WALLACE stated her understanding that the President may not
reappoint a person who has been declined, citing that this
historically has not occurred. She disclosed that she is not an
expert on the federal appointment process.
2:04:36 PM
CHAIR CLAMAN asked whether the governor's 2020 appointments were
reappointed with a new date of appointment or the same date and
whether [the date of reappointment] was significant.
MS. WALLACE answered that the documents that she had seen
contained the same dates. She added that a large number of
appointments had been submitted on January 19, 2021, which was
prior to the decision by the court. She stated her uncertainty
regarding the position of the governor pertaining to the
reappointments since the ruling, and she noted that the term
dates of the appointments had not changed.
2:07:01 PM
REPRESENTATIVE EASTMAN asked what the committee's intention
would be to proceed considering the information put forward in
the presentation.
2:07:37 PM
CHAIR CLAMAN stated that the committee would proceed by
conducting confirmation hearings on appointees referred to the
committee, and that the length of the hearings would be based on
public participation.
2:08:23 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:08 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| 2021.03.02 Topics and Questions for House Judiciary Committee Meeting on March 3, 2021.pdf |
HJUD 3/3/2021 1:30:00 PM |