State of Alaska, Office of the Governor Mike Dunleavy, in an official capacity v. The Alaska Legislative Council, on behalf of the Alaska State Legislature ( 2021 )

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
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THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, OFFICE OF )
THE GOVERNOR, GOVERNOR ) Supreme Court No. S-18003
MIKE DUNLEAVY, in an official )
capacity, ) Superior Court No. 1JU-20-00938 CI
)
Appellant, ) OPINION
)
v. ) No. 7567 – November 12, 2021
)
THE ALASKA LEGISLATIVE )
COUNCIL, on behalf of THE )
ALASKA STATE LEGISLATURE, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, First
Judicial District, Juneau, Philip M. Pallenberg, Judge.
Appearances: Margaret Paton Walsh, Assistant Attorney
General, Anchorage, Janell Hafner, William E. Milks,
Assistant Attorneys General, and Treg R. Taylor, Attorney
General, Juneau, for Appellant. Megan A. Wallace, Hilary
Martin, and Marie Y. Marx, Alaska State Legislature,
Legislative Affairs Agency, Division of Legal and Research
Services, Juneau, for Appellee.
Before: Winfree, Maassen, Carney, and Borghesan, Justices,
and Fabe, Senior Justice.* [Bolger, Chief Justice, not
participating.]
MAASSEN, Justice.
I. INTRODUCTION
Under the Alaska Constitution, many executive positions subject to
appointment by the governor — including agency heads and members of boards and
commissions — require legislative confirmation. This case concerns the effect of the
Alaska Legislature’s failure to exercise its confirmation power during the disruptions in
regular government activity due to the COVID-19 pandemic. The legislature relies on
a preexisting statute and a 2020 modification of it to assert that its failure to act is the
same as a denial of confirmation for all those appointees, with the consequence that they
could not continue to serve as recess appointments. The governor argues that his
appointees remain in office and continue to serve until the legislature votes on their
confirmation, one way or the other, in joint session. The superior court granted summary
judgment to the legislature, and the governor appealed.
In April 2021 we considered the appeal on an expedited basis and reversed
the superior court’s judgment in a brief order. We concluded that the laws defining
legislative inaction as tantamount to rejection violate article III, sections 25 and 26 of the
Alaska Constitution, which require that the legislature consider a governor’s appointees
in joint session. This opinion explains our reasoning.
*
Sitting by assignment made under article IV, section 11 of the Alaska
Constitution and Alaska Administrative Rule 23(a).
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II. FACTS AND PROCEEDINGS
A. Legal Background
The Alaska Constitution directs that “[a]ll executive and administrative
offices, departments, and agencies of the state government and their respective functions,
powers, and duties shall be allocated by law among and within not more than twenty
principal departments, so as to group them as far as practicable according to major
purposes.”1 Each of these “principal departments” is headed by either “a single
executive”2 or “a board or commission.”3 The appointment process is the same in each
case. Under article III, section 25, an individual named to head a principal department
as “a single executive” “shall be appointed by the governor, subject to confirmation by
a majority of the members of the legislature in joint session.” And under article III,
section 26, “[w]hen a board or commission is the head of a principal department or a
regulatory or quasi-judicial agency, its members shall be appointed by the governor,
subject to confirmation by a majority of the members of the legislature in joint session.”
The legislature has further defined by statute the process for confirming
these appointees. Alaska Statute 39.05.080(3) provides, among other things, that a
“person whose name is refused for appointment by the legislature” may not hold an
interim appointment while the legislature is in recess. The statute also provides that the
effect of legislative inaction in the confirmation context is “tantamount to a declination
1
Alaska Const. art. III, § 22.
2
See id. § 25.
3
See id. § 26.
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of confirmation.”4 The central legal question in this case is whether this latter provision
violates article III, sections 25 and 26 of the Alaska Constitution.
B. Facts
In 2020, during the Second Regular Session of the Thirty-First Alaska State
Legislature, Governor Mike Dunleavy presented over 90 appointees to the legislature for
confirmation.5 Soon after, the global COVID-19 pandemic disrupted the normal
functioning of government. In March 2020 the governor declared a public health
emergency.6
Later in the month the legislature, uncertain about when the pandemic
would allow it to physically meet, passed legislation effectively extending the deadline
for confirmation of the governor’s appointees beyond the end of the regular session.7
House Bill 309 allowed the Second Session of the Thirty-First Alaska State Legislature
to act on appointments “at any time.”8 It overrode the statutory deadline of
4
AS 39.05.080(3) (“Failure of the legislature to act to confirm or decline to
confirm an appointment during the regular session in which the appointment was
presented is tantamount to a declination of confirmation on the day the regular session
adjourns.”).
5
See 2020 House Journal 1528-37.
6
Office of Governor Mike Dunleavy, Governor Issues Public Health Disaster
Emergency Declaration for COVID-19 (Mar. 11, 2020),
https://gov.alaska.gov/newsroom/2020/03/11/governor-issues-public-health-disaster­
emergency-declaration-for-covid-19/; see AS 26.23.020(c) (granting governor power to
declare public health emergencies).
7
Ch. 9, SLA 2020 (H.B. 309); ch. 10, SLA 2020 (S.B. 241). The legislation
enacted only uncodified laws; we refer to the laws by their bill numbers for ease of
reference.
8
Ch. 9, § 1(a)(1), SLA 2020.
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AS 39.05.080(3) by making the failure to act on confirmations by the end of the
legislative session “not tantamount to a declination of confirmation” until the earlier of
January 18, 2021, or 30 days after either the expiration of the governor’s March public
health emergency order or a proclamation that the emergency no longer existed.9 Senate
Bill 241 extended the governor’s declaration of a public health emergency to November
15, 2020. The legislature then went into extended recess, having confirmed no
appointees.
The governor’s public health emergency declaration expired on
November 15. Under H.B. 309, the legislature’s failure to act on the governor’s
nominations became “tantamount to a declination of confirmation” on December 15.10
The next day the governor asserted in letters to the senate president and the speaker of
the house that his appointees would “continue to serve under valid appointments” and
that he was “exercising [his] constitutional authority under the Alaska Constitution,
article III, Section 27” — the recess appointment clause — “to continue their
appointments.”
C. Proceedings
In December 2020 the Legislative Council filed a complaint against the
governor in superior court. The Legislative Council requested a declaration that the
governor had violated AS 39.05.080, H.B. 309, and article III, sections 25 and 26 of the
Alaska Constitution, and that his attempt to continue the appointments beyond the
9
Id. § 1(b) (emphasis added).
10
In their superior court pleadings both parties cited December 16 as the date
on which the appointments were deemed declined under H.B. 309, but the superior court
calculated the effective date as December 15. The Legislative Council uses this date in
its brief in this appeal, whereas the governor continues to use December 16. Like the
superior court we do not consider this difference critical, but like the superior court we
calculate December 15 to be the date confirmation was considered denied.
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deadlines provided by law was unlawful. The Legislative Council also requested
injunctive relief prohibiting the governor both from continuing the appointments and
from reappointing these persons to the same positions before the next legislature
convened. The governor, in his answer and counterclaim, argued that the laws the
Legislative Council claimed he violated — AS 39.05.080(3) and H.B. 309 — themselves
violated article III, sections 25 and 26. He argued that his appointees were never
lawfully rejected and, in the alternative, that he had validly exercised his recess
appointment power to reappoint them. The governor and the Legislative Council filed
cross-motions for summary judgment.
In February 2021 the superior court granted the Legislative Council’s
motion, deciding that AS 39.05.080 and H.B. 309 were constitutional, the appointees had
therefore been effectively rejected by the legislature, and they were ineligible for recess
appointment. The court entered a final declaratory judgment for the Legislative Council.
The governor appealed to this court and asked for expedited consideration,
which we granted. On April 8, 2021, following oral argument, we issued an order
reversing the superior court’s summary judgment order and vacating the final judgment.
We concluded that AS 39.05.080(3) violated the Alaska Constitution, article III, sections
25 and 26.
III. STANDARD OF REVIEW
“We review a grant of summary judgment de novo and will affirm the
judgment if there are no contested issues of material fact and if the moving party is
entitled to judgment as a matter of law.”11 “We apply our independent judgment to
11
Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183, 189 (Alaska
2007).
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questions of constitutional law and review de novo the construction of the Alaska and
federal Constitutions.”12
IV. DISCUSSION
A. The Alaska Constitution Does Not Authorize The Legislature To
Define Legislative Inaction On The Governor’s Appointments As The
Equivalent Of Rejection.
The first challenged law on this appeal is the last sentence of
AS 39.05.080(3), which reads: “Failure of the legislature to act to confirm or decline to
confirm an appointment during the regular session in which the appointment was
presented is tantamount to a declination of confirmation on the day the regular session
adjourns.” The second challenged law is the legislature’s attempt to adapt this statutory
mandate to the circumstances of the COVID-19 pandemic, providing in H.B. 309 that
the legislature’s failure “to confirm or decline to confirm an appointment presented by
the governor during the Second Regular Session of the Thirty-First Alaska State
Legislature” is not “tantamount to a declination of confirmation” until later dates as
dictated by the public health emergency.13 The superior court determined that these
provisions were constitutional and that the governor’s slate of appointees was therefore
constructively rejected by the legislature’s failure to act on it. The governor argues that
the provisions are unconstitutional and that his appointees could therefore continue to
serve until the legislature affirmatively decided whether to confirm their appointments.
“A party raising a constitutional challenge to a statute bears the burden of
demonstrating the constitutional violation. A presumption of constitutionality applies,
12
Id.
13H.B. 309, ch. 9, §§ 1(a)-1(b), SLA 2020.
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and doubts are resolved in favor of constitutionality.”14 The starting point for our
analysis of a constitutional question not directly controlled by precedent is the plain text
of the constitutional provision, as clarified by its drafting history.15 Applying these rules
we conclude that the Constitution’s plain text, as supported by its drafting history,
requires a joint session vote to either confirm or reject a governor’s appointees. Alaska
Statute 39.05.080(3) and H.B. 309, by defining legislative inaction to mean a denial of
confirmation, nullify the requirement of a joint session vote. We therefore conclude that
AS 39.05.080(3) and H.B. 309’s “tantamount to a declination” provisions are
unconstitutional.16
1. The Constitution’s plain text requires a joint session vote.
“Our analysis of a constitutional provision begins with, and remains
grounded in, the words of the provision itself.”17 “Unless the context suggests otherwise,
14
Alaskans for a Common Language, 170 P.3d at 192 (quoting State, Dep’t
of Revenue v. Andrade, 23 P.3d 58, 71 (Alaska 2001)).
15
Forrer v. State, 471 P.3d 569, 585 (Alaska 2020) (citing Wielechowski v.
State, 403 P.3d 1141, 1146 (Alaska 2017)).
16
The governor also argues that even if rejection by inaction is constitutional,
AS 39.05.080(3)’s limitation on recess appointments still violates the Constitution,
meaning that he was still able to use his recess powers to reappoint any appointees after
rejection. Because rejection by inaction is unconstitutional, none of the governor’s
appointees were in fact rejected; the governor had no need to fall back on his recess
appointment powers. Our conclusion that the final sentence of AS 39.05.080(3) is
unconstitutional resolves this case, so we do not address either party’s arguments on
recess appointments.
17
Wielechowski, 403 P.3d at 1146 (quoting Hickel v. Cowper, 874 P.2d 922,
927-28 (Alaska 1994)).
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words are to be given their natural, obvious and ordinary meaning.”18 “We are not
vested with the authority to add missing terms or hypothesize differently worded
provisions . . . to reach a particular result.”19
The governor relies on the plain language of sections 25 and 26 for his
argument that appointees continue to serve until the legislature affirmatively votes to
reject their appointments. He points to the phrase “subject to confirmation by a majority
of the members of the legislature in joint session” and argues that the delegates “intended
that confirmation would turn on a joint session majority vote.”20 He argues that
“[c]onfirmation and declination are simply two sides of the same coin”; both are results
of a process that can “necessarily only be effectuated by a vote.”
We agree with the governor’s analysis. Both of the Constitution’s
confirmation provisions, article III, sections 25 and 26, declare that appointments are
“subject to confirmation by a majority of the members of the legislature in joint
session.”21 The provisions’ text dictates the manner in which confirmation must be done:
by majority vote in joint session.
The Legislative Council argues that article III’s plain language requires a
joint session vote only for confirmation, not declination. But we believe this to be an
oversimplification of the Constitution’s text. Confirmation may be defined as the
successful result of a confirmation vote — an interpretation the Legislative Council
18
Hammond v. Hoffbeck, 627 P.2d 1052, 1056 n.7 (Alaska 1981) (quoting
Cty. of Apache v. Sw. Lumber Mills, Inc., 376 P.2d 854, 856 (Ariz. 1962)).
19
Wielechowski, 403 P.3d at 1146 (alteration in original) (quoting Hickel, 874
P.2d at 927-28).
20
Alaska Const. art. III, §§ 25-26.
21
Id. (emphasis added).
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appears to advance — but it may also be defined as the process by which an appointee
is determined to be either confirmed or rejected. Confirmation as a process is a check
on a governor’s appointment power.22 Because the Constitution describes the governor’s
appointment powers as “subject to” confirmation, it is clear to us that “confirmation” in
this sense is the check, or the process of confirmation, rather than the result of that
process.23 And the Constitution mandates that this process — whether it results in
confirmation or rejection — be done by joint session vote.
The Legislative Council argues that AS 39.05.080(3) and H.B. 309 merely
establish procedures for rejection and therefore do not conflict with the Constitution’s
plain language. But although the legislature may set out its own procedure when the
Constitution is silent on process, the Constitution is not silent here: the phrase
“confirmation by a majority of the members of the legislature in joint session” is
descriptive enough for us to consider it a mandate. As we stated in Bradner v.
Hammond, “[s]ections 25 and 26 of [a]rticle III describe the outer limits of the
legislature’s confirmation authority.”24 Allowing inaction to substitute for a joint session
22
See Bradner v. Hammond, 553 P.2d 1, 7 (Alaska 1976) ( “[C]onfirmation
is . . . a part of the executive power of appointment which has in turn been delegated in
some specific instances by constitution to the legislative branch of government.”
(citations omitted)).
23
Alaska Const. art. III, §§ 25-26. See Check, BLACK’S LAW DICTIONARY
(11th ed. 2019) (defining “check” as “[t]o control or restrain” and defining “subject” as
“[u]nder the power of dominion of another,” “[e]xposed, liable, or prone,” or
“[d]ependent on or exposed to (some contingency); esp. being under discretionary
authority”). Appointment is controlled by confirmation as a check, while confirmation
as a result merely affirms the governor’s appointment. The Constitution’s plain language
imposes a check.
24
553 P.2d at 7 (“[W]e conclude that [s]ections 25 and 26 mark the full reach
(continued...)
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vote pushes beyond those “outer limits.”
The Legislative Council also argues that the governor’s position requires
adding language to the Constitution, because under his reading appointments are “subject
to confirmation or declination” by a majority of the members of the legislature in joint
session. The Legislative Council argues that adding these words to article III, sections
25 and 26, “would require a complete restructuring of the established procedure for
legislative confirmation and upset the system of checks and balances that has been in
existence since before statehood.” The Legislative Council is correct in that requiring
joint session action to reject an appointee means that appointments continue indefinitely
unless and until the legislature acts to decline them. But this is not inconsistent with our
prior case law or other constitutional provisions.25 Nor does it require adding a term to
the Constitution as long as we recognize that confirmation is the process by which an
appointment may be either confirmed or rejected — the procedural check on the
governor’s appointment power.
In sum, because the rejection-by-inaction language of AS 39.05.080(3) and
H.B. 309 conflicts with the Constitution’s joint session requirement, those provisions of
the laws are unconstitutional.
24
(...continued)
of the delegated, or shared, appointive function to Alaska’s legislative branch of
government.”).
25
We have previously described confirmation as a veto power that occurs
after appointment. See Cook v. Botelho, 921 P.2d 1126, 1130 n.4 (Alaska 1996)
(“Confirmation occurs after appointment. . . . ‘[T]his power to confirm actually is more
in the nature of a power to veto the appointment after the fact.’ ” (quoting State ex rel.
Todd v. Essling, 128 N.W.2d 307, 313 (Minn. 1964))).
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2. Constitutional history shows that the delegates intended a
confirmation process involving a joint session vote.
“Legislative history and the historical context, including events preceding
ratification, help define the constitution.”26 The governor argues that the delegates’
discussions during Alaska’s Constitutional Convention show that they intended
confirmation to “turn on a joint session majority vote.” Again we agree with the
governor’s position.
The concept of joint session deliberations came up repeatedly during the
convention debates about the confirmation process. It originated with the drafters of the
article on the judiciary, who applied it first to “the appointment of the lay members to the
judicial council.”27 When Delegate Victor Rivers presented the article on the executive,
he explained his committee’s deliberate decision to also adopt the joint session
confirmation process:
We vest in the governor the appointive power for the heads
of these departments. That is subject to confirmation by the
houses of the legislature meeting in joint session. All the way
through [this article] you will note that we have given the
power of approval of the governor’s appointments to a joint
session of the legislature. We did so after checking with the
department on the legislative which was following a similar
procedure in the matter of approval of appointments. I might
also add that the approval of appointments has been done in
26
Wielechowski v. State, 403 P.3d 1141, 1147 (Alaska 2017) (quoting State
v. Ketchikan Gateway Borough, 366 P.3d 86, 90 (Alaska 2016)).
27
3 Proceedings of the Alaska Constitutional Convention (PACC) 2177
(Jan. 14, 1956) (statement by Delegate George Sundborg).
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Alaska in that manner for many years by a joint session of
both houses.[28]
A day later, in further discussions of the executive article, Delegate Rivers suggested to
the convention that “the body go on record unanimously as to what method they desire
to approve in confirming appointments” across the board, rather than having to decide
on a confirmation process every time they discussed an executive appointment.29 He
asked “unanimous consent that this group express as a policy the intent that approval of
appointments shall be confirmed by legislatures in joint session and that we will correct
our proposals to conform to that policy.”30
Several delegates objected, contending that joint session requirements ran
contrary to the idea of a bicameral legislature and that confirmation “by the advice and
consent of the senate” might therefore be a better choice.31 But when Delegate Maynard
Londborg asked for “one good reason why we should run it with both houses,” he got
a number of responses.32 Delegate Thomas Harris suggested that if confirmation were
left to the 20-member senate it could become bogged down in horse-trading:
[T]he senate is going to get together and say, “Well, if you
will appoint this man, I’ll help you and you help me, and
we’ll slice it up like a piece of pie and we’ll all get our
28
Id. at 1988 (Jan. 13, 1956).
29
Id. at 2177 (Jan. 14, 1956).
30
Id. at 2178.
31
See id. at 2170-72, 2177-81. Delegate Maurice Johnson, for example,
argued that “we have adopted a bicameral legislature and we ought to operate as one.”
Id. at 2172.
32
Id. at 2180.
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friends in.” That’s what we didn’t want. We want the
governor to make the appointments, not the senate.[33]
Delegate Robert McNealy had the perhaps less cynical view that involving both houses
would make it more likely there would be a legislator with personal knowledge of an
appointee to help shape the consensus:
[Y]our representatives will be elected from 24 representative
districts and it may be that one of the governor’s appointees
may be next door or right in the bailiwick of one of the
representatives [whereas the appointee] might live at some
little distance from one of the senators, and I think it’s a
certainty that every member of the house of representatives
should know . . . anyone that is appointed from his particular
district, . . . and would [therefore] be able to advise and vote
intelligently and in that manner assist the senate in this joint
confirmation.[34]
And Delegate John McNees added that “an appointment by your executive department
and a confirmation by your legislature as a total would mean the truest reflection of your
entire elective thinking.”35 These arguments prevailed, as the delegates ultimately agreed
with Delegate John Hellenthal’s motion that “it shall be the policy of this body that such
confirmation be made by both houses of the legislature jointly assembled.”36
The Legislative Council argues, however, that the delegates “did appear to
recognize that inaction would mean rejection.” It notes language proposed during the
discussion of recess appointments that seemed to equate inaction with rejection by
implying that a legislature’s failure to act on an appointment would create a vacancy
33
Id.
34Id. at 2181.
35
Id.
36Id. at 2185-86.
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requiring a recess appointment.37 But this proposal was not adopted. Delegate Victor
Rivers moved successfully to withdraw it, and Delegate Vic Fisher supported the move
by explaining that there was “presently . . . a law to this effect in our statute books” and
it therefore did not need to be included in the Constitution: “I think that the subject can
be very adequately covered by legislation.”38 Delegate Mildred Hermann agreed,
explaining that “the mere statement that this is the law that we have at the present time
is sufficient to describe it as a statutory measure and as a statutory measure it does not
belong in the constitution.”39
As the law to which the delegates were referring, the Legislative Council
identifies AS 39.05.080’s predecessor, a territorial statute that was carried over into
statehood and recodified as AS 39.05.080.40 But this statute did not define legislative
inaction as equivalent to rejection until its amendment in 1964.41 Nothing about the
constitutional delegates’ discussion of the issue in 1956 indicates that this is what they
had in mind.
37
Alaska Constitutional Convention Committee Proposal 10a, at 8 (Jan. 12,
1956) (“After the end of the session no ad interim appointment to the same office shall
be made unless the Governor shall have submitted to the Senate a nomination to the
office during the session and the Senate shall have adjourned without confirming or
rejecting it. No person nominated for any office shall be eligible for an ad interim
appointment to such office if the nomination shall have failed of confirmation by the
Senate.”).
38
3 PACC 2264 (Jan. 16, 1956).
39
Id. at 2265.
40
The territorial statute was ch. 64, § 4, SLA 1955.
41
Compare ch. 64, § 4, SLA 1955, with ch. 1, § 3, 1964.
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The Legislative Council also argues that the delegates’ discussion does not
reveal any intent to limit the legislature’s power to establish its own confirmation
procedures. It points out that the delegates, while declining to include a “detailed
procedure” for confirmations in the Constitution, were open to the idea of defining it by
statute. We do not disagree that procedural details were left for later legislation, and that
AS 39.05.080 filled in some of these details;42 but the legislature could not undo by
statute the constitutional requirement that confirmation be “by a majority of the members
of the legislature in joint session.”43
The Legislative Council also cites Munson v. Territory of Alaska,44 a
territorial case, to support its assertion that the framers intended legislative inaction to
amount to rejection. The federal district court in Munson held that “the failure of the
legislature to act on [an appointee’s] ‘appointment’ is, in effect, rejection.”45 The
Legislative Council argues that this shows a longstanding legal history in Alaska of
treating inaction as rejection in the confirmation context. But Munson was decided after
the constitutional convention; the framers could not have had the case in mind when they
were discussing the confirmation process.46 And because Munson precedes statehood,
42
For example, AS 39.05.080(1) requires that the governor present
appointees’ names “within the first 15 days after the legislature convenes in regular
session”; section .080(2) requires “the presiding officer of each house” to then “assign
the name of each appointee to a standing committee of that house for a hearing, report,
and recommendation.”
43
Alaska Const. art. III, §§ 25, 26.
44
16 Alaska 580 (D. Alaska 1956).
45
Id. at 590.
46
The convention took place between November 1955 and February 1956.
(continued...)
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it lacks any sort of constitutional analysis that would make it persuasive to us now.
Whether or not Munson shows a general pre-statehood understanding that inaction
amounts to rejection, both the plain text of the Constitution and the framers’ discussion
evidence a different intent.47
If anything, the constitutional convention shows Alaska’s break with other
jurisdictions’ approach. A benefit of the state’s small population was the hope that a
joint session of both houses of the legislature would be more likely to include legislators
who knew the appointees personally and could comment on their qualifications, thus
making more informed decisions about whether to confirm and ensuring that the entire
state was represented in the process.48 Rejection by inaction negates every benefit of a
joint session; it casts no reflection whatsoever on the appointees’ fitness for the positions
to which they were appointed, and it is especially difficult to see how it could be read as
a legislative judgment that they were unfit to serve as recess appointments. A failure to
act also may lead, as it did here, to a large number of critical vacancies in the executive
46
(...continued)
See 1 PACC 1 (Nov. 8, 1955); 3 PACC 3962 (Feb. 6, 1956). Munson was decided in
December 1956. See 16 Alaska 580.
47
For the same reason we reject the Legislative Council’s reliance on cases
from other jurisdictions. See, e.g., State ex rel. Oberly v. Troise, 526 A.2d 898, 899 (Del.
1987) (holding that governor’s nominations were invalid after a period of legislative
inaction); State ex rel. McCarthy v. Watson, 45 A.2d 716, 724 (Conn. 1946) (deeming
inaction as rejection despite express statutory mandate to act); Uniform Rules of the
United States Senate, Rule XXXI(6) (providing that nominations neither confirmed nor
rejected within a session may not be again considered unless the president makes the
same nomination).
48
See 3 PACC 2181 (Jan. 14, 1956).
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branch, effectively weakening it while serving no articulable purpose consistent with the
framers’ intent.49
We therefore conclude that AS 39.05.080(3) and H.B. 309’s “tantamount
to declination” provisions violate article III, sections 25 and 26 of the Alaska
Constitution.
V. CONCLUSION
We REVERSE the superior court’s summary judgment order and VACATE
the final judgment.
49
The governor submitted the affidavit of Gina Ritacco, Director of Boards
and Commissions for the Office of the Governor, claiming that if the legislature lawfully
rejected the governor’s appointees — and thus disqualified them from recess
appointments — boards and commissions including the Medical Board, Board of
Fisheries, and Commission for Human Rights would be left without a legal quorum to
conduct business, while agencies including the Department of Revenue, the Public
Defender Agency, and the Attorney General’s Office would be left without an appointed
commissioner or agency head.
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