COPY KEVIN F. McCOY <Original Received MARY C. GEDDES JUL 1 8 2019 1113 N Street Anchorage, Alaska 99501 l<[email protected] Clerk of the Trial Courts (907) 360-2832 IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT ANCHORAGE KEVIN F. McCOY and MARY C. GEDDES, ) ) Plaintiffs, ) vs. ) ) MICHAEL J. DUNLEAVY, Governor of ) Case No. 3AN-19-08301 Cl the State of Alaska, ) ) ) Defendant. ) ~~~~~~~~~~~·) REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR EXPEDITED CONSIDERATION In this pleading, Plaintiffs jointly respond to the Defendant's opposition to their Motion for Expedited Consideration. This matter should proceed on an expedited basis because: • Contrary to Defendant Dunleavy's claim, Plaintiffs· as citizen-taxpayers - and their fellow citizens of Alaska- have suffered irreparable harm stemming from the Legislature's lost opportunity to timely reconsider, as a single body, the Defendant's 182 line-item vetoes at a lawfully convened Special Session. (Appendix D, the record of the Alaska Legislature, 31st Legislature (2019-2020) Bill History/Action for Legislature for CCS CCHB 39 titled "Approp.: Operating Budget/Loans/Funds," showing "VETO Reply to Defendant's Opposition to Plaintiffs' Motion for Expedited Consideration Kevin F. McCoy & Mary C. Geddes v. Michael J. Dunleavy, Governor NO. 3AN-19-08301 Cl Page 1 of 4 SUSTAINED," page 1, and entry for "7/10/2019 at 2019 "GOVERNOR LINE ITEM VETOES SUSTAINED Y37 N1 E4 A18"). The Governor's unlawful Executive Proclamation caused at least 18 members of the Legislature to go MIA and deprived the Plaintiffs and the citizens of Alaska of their attendance, any engagement in the collective deliberative legislative process, and ultimately their vote of record on re~onsideration. • There is nothing in the Governor's Supplemental Executive Proclamation of July 17, 2019, (Appendix E) that redresses the Legislature's lost opportunity to consider the vetoes to the operating budget as a body, in accordance with Article II, section 16, of the Alaska Constitution. • The issues presented in the lawsuit are noncomplex because they involve only a single state constitutional question, i.e. whether the Governor's Executive Proclamation calling the Legislature to a Second Special Session in Wasilla violate the separation of powers doctrine notwithstanding the language in AS 24.05.1 OO(b) allowing the Governor to "designate" the location of a special session. If the Proclamation is unconstitutional, the court would necessarily find that the Second Special Session was unlawfully convened. This ruling would invalidate the Governor's 182 line-items vetoes inasmuch as the constitutionally- required period allowed for the Legislature's consideration under Article II, sec. 16, of the vetoes is limited to the first five days within the next lawfully-convened regular of special session of the Legislature; Reply to Defendant's Opposition to Plaintiffs' Motion for Expedited Consideration Kevin F. McCoy & Mary C. Geddes v. Michael J. Dunleavy, Governor NO. 3AN-19-08301 Cl Page 2of4 • The constitutional question has extraordinary public importance because they concern the Governor's 182 budget line-item vetoe3 amounting to cuts on the order of $444 million and affecting a broad spectrum of state seNices and contracts for services; • The parties have already explored a pretrial resolution and have determined that no agreement is forthcoming; • The Defendant's lawyers in the Department of Law should be ready to fully litigate this question on an expedited basis because: o The legality of AS 24.05.100(b), amended in 1982 by CS HB 184, was first reviewed by the Department of Law 27 years ago during the Twelfth Legislative Session (see Appendix A, noting the attendance of Assistant Attorney General Peter Froehlich at a 1982 House Judiciary Committee hearing chaired by Rep. Barnes and his representation that the Department of Law takes no position on HB 184) o Following the Governor's Executive Proclamation on June 13, the Attorney General Kevin Clarkson, the Governor's lawyer, defended the legality of the Wasilla venue (Appendix B (Associated Press, June 26, 2019, "Dueling legal analyses raise questions about special session"; KTUU June 26, 2019, "Alaska AG: Governor can sue legislators who don't appear at Wasilla special session"; Anchorage Daily News, June 26 and 27, 2019 "Dispute over special session location escalates")) indicating that the Governor's lawyers Reply to Defendant's Opposition to Plaintiffs' Motion for Expedited Consideration Kevin F. McCoy & Mary C. Geddes v. Michael J. Dunleavy, Governor NO. 3AN-19-08301 Cl Page 3of4 had fully researched the issue by the time of Clarkson's statements, if not before; o The Defendant through his attorneys has sufficient resources to expeditiously litigate this issue. • Plaintiffs ask the court pursuant to Alaska Evidence Rule 201 to take judicial notice of the continuing barrage of media reports as to the immediate and imminent impacts of the Governor's line-item vetoes. See e.g. Anchorage Daily News, July 18, 2019 (Elizabeth Earl, Alaska Journal of Commerce, "Providers await impacts of Medicaid cuts; dental services axed") (Appendix C) For all these reasons, Plaintiffs propose the following expedited schedule: the Defendant to file any Opposition to the Motion for Preliminary Injunction by the close of business, Friday, July 19, 2019; any Reply by the Plaintiffs would be due by noon, Monday, July 22, 2019; and, that the Matter be calendared for oral argument on Tuesday, July 23, 2019. 1 Dated at Anchorage, Alaska this 18 h day of July, 2019. ~ ~Ul~ KEiN( McCOY / Pro Se Plaintiff (Alaska Bar# 7705042 Retired) -~~.G6!'JDES c_JhL Pro Se Plaintiff (Alaska Bar# 8511157 Inactive) Reply to Defendant's Opposition to Plaintiffs' Motion for Expedited Consideration Kevin F. McCoy & Mary C. Geddes v. Michael J. Dunleavy, Governor NO. 3AN-19-08301CI Page 4 of 4 Info bases 7/17/19, 2:18 PM 31st Legislature(2019-2020) Info bases Contents Members Present: Chairman Barnes Next Rep. Anderson Rep. Freeman Rep. Phillips Previous Members Absent: Rep. Buchholdt Rep. O'Connell Rep. Meekins ~HB~ »184~ Relating to an advisory note on convening special sessions anywhere in Alaska. Next CSHB 52 Amending Alaska Transportation Commission Statute. Prev. Hit WITNESS: Peter Froelich Assistant Attorney General Home Department of Law Position Statement: He stated that the Department didn't really have How a position on WfB44&1itl84114. to Query »HB~ »184~ Previously brought up in committee. CSHB 52 Previously heard in committee. 82 HJUD 82/02/17 1315 ? http ://www. legis .state.a k.us/basis/fo I io.as p Page 1 of 1 Info bases 7/17/19, 2:27 PM 3 lst Legislature(2019-2020) Info bases Contents WITNESS: Next NONE Position Statement: NONE Previous ~HB1<1 *1844-4 Previously brought up in committee. HB 438 Previously brought up in committee. /.,....... - ....- ........... 4 ___ i Tape#l4 ) Query ~ ......................... " ....... ,,..,,.. Next " Recording Hit ' Number 0617 The meeting of the House Judiciary Committee was called to order by Chairman Barnes at I: 15 p.m. Bill Cook recommended that ~HB,~0~184~ was a statute, Prev. Hit not an advisory vote -- so it had been drafted by Legal Services. Adds a subsection (b) that says a special session can be held anywhere. If it is called by the Governor, he designates the Home place. If the Legislature calls the special session, they designate the place. Rep. How Phillips made a motion to pass CSHB 184 out of to Query committee. No Objection. So ordered. Number 0751 Rep. Meekins arrived 1:50. Rep. Phillips moved the 4 conceptual motions on HB 438 made the previous day by Rep. Meekins. Cook went over 4 motions. Rep. Meekins made a motion to Standing and Special Committees 82 HJUD 82/03/04 1315 .,... http ://www. leg is .state.a k.us/basis/folio.as p Page 1 of 1 Dueling legal analyses raise questions about special-<;,sion - SFGate 7/18/19, 10:25 AM SfGATE https://www.sfgate.com/news/article/Memo-questions-Dunleavy-authority-to-call-Wasilla-14051985.php Dueling. legal analyses raise questions about special session Becky Bohrer, Associated Press Updated 6:10 pm PDT, Wednesday, June 26, 2019 JUNEAU, Alaska (AP) -Alaska's attorney general said Wednesday that Republican Gov. Mike Dunleavy has the authority to call a special session where he wishes and the option of seeking a court order to compel rebellious lawinakers to convene in his chosen location of Wasilla. How far Dunleavy plans to push the issue - his latest THE DAILY dustup with lawmakers - remains to be seen. DAILY NEWSLETTER SFGATE's top stories from across the Bay Area. Attorney General Kevin Clarkson's position is at odds You agree to our Terms of Use. Your vvith that of the Legislature's top legal adviser, Megan information will be used as described in our Privacy Notice. Wallace, who in a m.e1no said a governor does not have the constitutional power to compel the Legislature to meet in a location other than the i capital of Juneau. Clarkson told reporters the writers L--,~~~~~~~-~~~~~~~~~ of the state's constitution, if they wished, could have limited where a special session could be held but didn't. sion and for lawmakers to call them.selves asilla, where he's from. But House Speaker eek said the Legislature instead plans to Clarkson said Dunleavy asked him for his legal options. Clarkson said he could seek a court order https://www.sfgate.com/news/a rticle/Memo-questions-Dun leavy-autho rity-to-cal 1-Wasilla-1405198 5. php Page 1 of 3 Dueling legal analyses raise questions about specia'...--...,sion - SFGate 7/18/19, 10:25 AM -compelling lawmakers not present in Wasilla to go there and have Alaska State Troopers roundup those who defy aiiy such court order.