Plaintiff in Legislature case won’t seek further action for now

Lawyer says legal action may come in the future

The Juneau man whose lawsuit effectively brought the Alaska State Legislature back to the Capitol will not be taking legal action against bills passed this week, his lawyer Joe Geldhof said.

On May 14, Eric Forrer of Juneau submitted a lawsuit against the Department of Revenue Commissioner Lucinda Mahoney for allegedly violating the state constitution by allowing the governor to make an appropriation through the RPL process.

Not long after Forrer submitted his lawsuit Thursday, lawmakers were instructed by caucus leaders to return to the Capitol by Monday.

The RPL process allows the governor to add money to certain programs while the Legislature is not in session. Gov. Mike Dunleavy tried to avoid bringing lawmakers back to Juneau by proposing distributing over $1 billion in federal COVID-19 relief money using the process.

However, RPLs can only add money to programs which already have the legal ability to get federal funds, making RPLs appropriate for some programs, such as school-related programs which already receive federal money annually, but inappropriate for state programs like small business loans or revenue sharing.

Legislative lawyers had warned the Legislative Budget and Audit Committee about potential legal challenges, but the governor and the majority of lawmakers agreed RPLs were the fastest way to distribute the much needed federal funds.

Forrer and Geldhof argue that even during an emergency, the state constitution cannot be circumvented, and called for lawmakers to come back to Juneau to make the appropriation according to the constitution.

When lawmakers met in Juneau Tuesday, they passed a bill to ratify the governor’s distributions, not to appropriate the money themselves. Legislative leaders who crafted the bill said they chose ratification because it satisfies all the issues raised by Forrer’s lawsuit, without getting the Legislature bogged down in partisan politics.

“Going through an appropriation process would have been similar to the budget process,”said Senate President Cathy Giessel, R-Anchorage. “It would have been a 30-day process. Always the goal was to get the money to Alaskans as soon as possible.”

Giessel said lawmakers had been careful when drafting their ratification bill, using a 1987 state Supreme Court case concerning RPLs, State of Alaska v. Fairbanks North Star Borough, as a guide.

Tuesday morning Geldhof told the Empire Forrer had instructed him not to pursue an injunction against the Legislature’s ratification, even as they found lawmakers’ actions insufficient.

“It is obviously inconsistent with the normal constitutional requirements,” Geldhof said. “They didn’t make the expenditure. They’re ratifying nothing, and they think that’s good enough. There is an open legal question.”

But even with the less-than-satisfactory outcome, Geldhof said Forrer didn’t want to get in the way of the distribution of money people are desperately waiting for.

Forrer “is not going to contest the unconstitutional actions by the Legislature,” Geldhof said.

Geldhof said Forrer was willing to accept Tuesday’s action over the approval of RPLs last week despite considering both to be unconstitutional because Forrer did not want to intervene in the business of the Legislature.

“We got them here, got them into session, he’s satisfied that they convened, he’s satisfied that they acted,” Geldhof said.

Although Geldhof said no legal action would be taken regarding the ratification bill, the lawsuit would be kept open.

“We’re not going to have that argument in the next day or two,” Geldhof said. “We will sort out what they did, the constitutionality of it, down the trail.”

Contact reporter Peter Segall at psegall@juneauempire.com. Follow him on Twitter at @SegallJnoEmpire.

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