Legislative Council authorizes up to $100,000 for litigation over governor's Executive Order 137 establishing Department of Agriculture

The Legislative Council on Sept. 10 authorized legislative counsel to contract for legal services not to exceed $100,000 to pursue litigation over the governor's issuance of Executive Order 137, which would establish a Department of Agriculture. Senator Kiel moved the motion under the statutory authority cited in the meeting as "AS 24 20 0 6 0 4 F," and the council voted 9-2 to approve the contract authorization and give the chair authority to direct Legislative Legal Services and outside counsel.

Emily Naumann of Legislative Legal Services briefed members on the basis for the proposed litigation, saying it arose from a dispute between the legislature and the governor over whether the governor has authority under the state constitution to issue an executive order during a special session. Naumann said, "Specifically, this is in front of the legislature now because the governor introduced Executive Order 137, establishing the Department of Agriculture, recently during the special session, and it was returned by the presiding officer to the governor. The governor is asserting that he will give effect to the executive order because it was not specifically rejected or disapproved by the legislature. Thus causing a conflict in the interpretation of the constitution between the legislature and executive officials." (Transcript excerpt.)

Members split on timing and precedent. Representative Kopp said she supported defending the legislature's separation-of-powers authority but urged waiting until there was clearer overt action from the administration, saying she did not want to initiate litigation while the administration may be de-escalating. Representative Prox cautioned that declining to authorize litigation could establish an undesirable precedent that the legislature could effectively act by inaction.

Representative Schrage and Senator Kiel argued for authorization now so the legislature preserves procedural options; Schrage noted the limited timeline and the potential for the executive order to take effect on Jan. 1 without legislative oversight of the new department’s cost and resources. Senator Kiel said he trusted counsel and the chair to refrain from filing suit if the administration de-escalates, but that authorization was necessary to defend the constitution.

Miss Truett conducted the roll-call vote. The motion passed 9 yeas and 2 nays. Recorded nays were Representative Kopp and Representative Prox. The council authorized the chair to direct Legislative Legal Services and outside counsel on the litigation.