Tuesday, November 21, 2006

Constitutional Showdown Between Alaska State Legislature And State Supreme Court Over Gay Benefits Looming

On Monday, November 20th, the Alaska State Senate set up a possible constitutional showdown between the legislature and the state Supreme Court by passing House Bill 4001 by an 11-6 margin, which prohibits the governor's comminssioner of administration from adopting the court-ordered new benefits plan extending health benefits to the same-sex partners of gay state employees and retirees. They also passed House Bill 4002 by a 12-5 margin to set up a nonbinding statewide advisory vote in April 2008 allowing voters to say whether they think lawmakers should place a constitutional amendment on the November 2008 ballot to overturn the court's mandate. The Senate then promptly gaveled itself out to conclude the third special legislative session of 2006, putting lame-duck Governor Frank Murkowski squarely in the crosshairs. Last Friday (Nov 17th), the House voted to approve it by a 22-8 margin with 10 absences, then gaveled itself out. Original stories from the Anchorage Daily News and KTUU Channel 2.

Republican majority leaders said their purpose in defying the administration and the courts is to send a message. They said it should be up to the Legislature to mold a benefits plan or to put a constitutional amendment before voters. "It's something we the Legislature want to be involved in. And we are preserving that right for the next Legislature," said Sen. Ralph Seekins, R-Fairbanks.

Senator Fred Dyson, a leader in the fight to overturn the court's decision from the beginning, was even more blunt. “The courts are off the reservation. This is an attempt for us to protect the fundamental rights of the legislative prerogatives,” said Dyson.

However, Democrat Hollis French of Anchorage said the Legislature's action in trying to tie the commissioner's hands sets up an unnecessary fight between the Legislature and the courts. "The court is going to strike the statute down as unconstitutional ... period," he said.

Sen. Tom Wagoner, R-Kenai, said he would like the Legislature to consider other ways of addressing the problem, such as a Texas-style benefits program that allows employees to choose one other person, be it spouse, roommate or same-sex partner, to be covered under their medical plan, in order to de-politicize the problem.

ACLU Alaska executive director Michael MacLeod-Ball said he doubts the measures will make much difference. "The (Supreme) court has made a ruling that it is unconstitutional to continue to provide benefits just to married partners of state employees and not to same-sex partners of state employees and there's nothing in any of these pieces of legislation that affects that," MacLeod-Ball said.

Officials with the Murkowski administration were not available for comment following adjournment of the seven-day session but Commissioner Scott Nordstrand said he will address how the state will proceed with the court order at a press conference this morning (Tuesday November 21st).

How State Senators Voted On HB 4001

SENATORS IN FAVOR: John Cowdery, R-Anchorage; Fred Dyson, R-Eagle River; Lyda Green, R-Wasilla; Lyman Hoffman, D-Bethel; Charlie Huggins, R-Wasilla; Ralph Seekins, R-Fairbanks; Bert Stedman, R-Sitka; Gary Stevens, R-Kodiak; Gene Therriault, R-North Pole; Thomas Wagoner, R-Kenai; Gary Wilken, R-Fairbanks.

SENATORS OPPOSED: Con Bunde, R-Anchorage; Bettye Davis, D-Anchorage; Johnny Ellis, D-Anchorage; Kim Elton, D-Juneau; Hollis French, D-Anchorage; Albert Kookesh, D-Angoon.

EXCUSED: Gretchen Guess, D-Anchorage; Donny Olson, D-Nome; Ben Stevens, R-Anchorage.

Brief Timeline Of Pertinent Events Leading Up To This Point:

-1998: Alaska voters pass constitutional amendment banning same-sex marriages.
-1999: Lawsuit filed in state court on behalf of nine same-sex couples against state of Alaska and Municipality of Anchorage argues it's unconstitutional to require a couple to be married in order to get government employment benefits.
- 2001: Superior Court Judge Stephanie Joannides rules in favor of the state and city.
- 2002: Case appealed by American Civil Liberties Union to Alaska Supreme Court.
- October 2005: Supreme Court unanimously rules it's unconstitutional to deny benefits to the same-sex partners of public employees. Anchorage officials begin steps to offer benefits; state says it needs more time. Supreme Court eventually gives until Jan. 1, 2007, for state to comply with the ruling.
- September 2006: Judge Joannides says benefit regulations being developed by the state are too restrictive. Among the rules proposed: Employees with same-sex partners would have to file affidavits swearing they have been "exclusive, committed and intimate relationships" for at least a year.
- October 2006: After Lt. Gov. Loren Leman says he doesn't believe it's legal for him to sign off on revised regulations providing the benefits, Gov. Frank Murkowski calls a post-election special session of the Legislature to allow the state to offer the benefits.
- November 13, 2006: Special session convenes.
- November 17 and 20, 2006: House and Senate pass measure to prohibit the administration from granting the benefits. They also pass a bill to set up a statewide advisory vote in April asking the public if a constitutional amendment should go on the 2008 general election ballot to overturn the court's ruling and take away those benefits.

Analysis: This dilemna has been triggered by an expanded definition of rights and an inflated sense of entitlement. The most courageous decision would be to limit employee benefits to employees only - let employees make their own arrangements for their spouses/children/partners, etc. And why are retirees being granted benefits? Hasn't anyone heard of Medicare? Unfortunately, changing these rules might conflict with collective bargaining agreements signed with various unions. The more classes of people you grant special protection to, the more conflict you generate and the greater the threat of litigation.

The questions now - will the State Supreme Court hold the state in contempt if a court-compliant plan is not instituted by January 1st? Will either outgoing Governor Murkowski or incoming Governor Palin defy the legislature by implementing a court-compliant plan unilaterally? Stay tuned.

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