One of the hallmarks of the 2015-16 Alaska Legislature has been the refusal to debate or vote on whether up to 42,000 more low-income Alaskans should be allowed to sign up for health care coverage under Medicaid, with nearly all of the costs paid for by the federal government.
Nearly 17,000 Alaskans have enrolled since late last summer, when Gov. Bill Walker took action on his own to expand coverage, arguing it was allowed under state law.
Legislators could have voted anytime in 2015 to prevent Walker from taking that step, or they could have acted this year to overturn his decision and deny health insurance coverage to single adults who make up to about $20,000 a year or couples earning about $27,600.
Rather than go on the record about Medicaid expansion, legislators have tried to force the judicial branch to legislate from the bench.
For a flat fee of $250,000, they hired Washington, D.C. lawyers to try to overturn Walker’s decision. The principals of Bancroft PLLC, who usually collect fees of $500 to $1,350 an hour, represented the NFL in the football tampering case with Patriots quarterback Tom Brady.
Most of the air went out of the legislative Medicaid case in March, when Anchorage Superior Court Judge Frank Pfiffner said the governor had followed the law. “The way for the Legislature to exercise its constitutional power to control the state’s assets is through its constitutional power to pass laws,” he said, a bit of legal advice that has gone unheeded.
The preliminary paperwork has been filed for an appeal to the Alaska Supreme Court, but legislative resolve is dissolving as more legislators recognize this is not a good way to set policy.
The Legislative Council, the legislative committee that filed the lawsuit last year, has given up. The state Senate has declined to push an appeal, as a majority of its members support Medicaid expansion, and the state House, where the situation is probably the same, has also never voted to appeal.
However, there are holdouts in the state House leadership who don’t have the votes but they think they have the power to keep the case going.
Anchorage Republican Rep. Craig Johnson said he asked the lawyers to file the appeal and they did so.
Perhaps they should have asked how they are going to get paid first.
The state contract with Bancroft says it could collect a flat fee of $150,000 for a Supreme Court appeal under one condition — the project director selected by the Legislative Council has to sign off on the second phase of the contract.
“If the project director elects to not proceed to the Supreme Court, then Phase 2 does not apply and the services and payments are complete,” the contract states.
Project director Chad Hutchison, a staff member for Sen. John Coghill, R-North Pole, has not told Bancroft PLLC to appeal because the council is not appealing the case.
That means “payments are complete” and the $150,000 should remain in state savings.
Though he does not have a signed contract with the legal team, it appears Johnson wants to use the money to pay the lawyers.
That doesn’t sound like the right thing to do, especially since an aide to Johnson has said that $20,000 more would be needed from the office of House Speaker Mike Chenault, R-Nikiski, to keep this going for a year and a half or longer.
At Johnson’s direction, the Washington, D.C., lawyers have placed the name of their firm on the appeal paperwork before the Supreme Court, but there are problems with that move as well.
The appeal falsely claims the Legislative Council initiated the filing and the state House has asked that it become the substitute plaintiff in the case.
A May 5 notice to the court begins with the words “Comes now appellant Alaska Legislative Council and Alaska House of Representatives,” but the council is not an appellant and neither is the House. The council was not consulted, said Sen. Gary Stevens, R-Kodiak, chairman of the council.
A day later the attorneys filed a claim in Anchorage Superior Court, repeating the false claim that the request to allow the House to take over the case came with the backing of the council.
“The state Senate has indicated informally that it no longer wishes to proceed with the litigation,” the attorneys said. “Therefore it is appropriate for this court to substitute the Alaska State House of Representatives for the Alaska Legislative Council.”
Until there is a vote by the 40 members of the state House to appeal the case and appropriate money to pay the lawyers, this will not be an effort by the House of Representatives, but merely by the House of Johnson.
The courts have every reason to reject the appeal and the transfer.
The Alaska Supreme Court should insist, and Alaskans have the right to expect, the Legislature to get its house in order.
Dermot Cole, a journalist for 40 years in Alaska, lives in Fairbanks. One of his children is a deputy press secretary to Gov. Bill Walker. The views expressed here are the writer’s own and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary(at)alaskadispatch.com.