The Honorable Michael J. Dunleavy
AGO FY20
No. FY20
Alaska Attorney General Opinion
May 8, 2019
The
Honorable Michael J. Dunleavy
Governor
State
of Alaska
P.O.
Box 110001
Juneau,
AK 99811-0001
Re:
FY20 Education appropriation
Dear
Governor Dunleavy:
You
have asked for a legal opinion on whether an appropriation of
future revenues for K-12 education spending for fiscal year
2020 included in an appropriation bill enacted in 2018 was
consistent with the requirements of article IX of the Alaska
Constitution.
I.
SUMMARY AND SHORT ANSWER
It is
the opinion of the Department of Law that the appropriation
is unconstitutional because it contravenes the annual
budgeting process required by the Alaska Constitution and it
is an improper dedication of funds. Over 25 years ago, the
Alaska Supreme Court held that the Alaska Constitution
mandates an annual budgeting process—"the
constitutional framers believed that the legislature would be
required to decide funding priorities annually on the merits
of the various proposals presented."1 Less than two years
ago the Court again emphasized this annual budgeting process
in the legal dispute over whether the permanent fund dividend
must be appropriated each year—"[a]bsent another
constitutional amendment, the Permanent Fund dividend program
must compete for annual legislative funding just as
other state programs."2 As detailed below, we
believe last year's appropriation for FY20 K-12 education
spending improperly binds a future legislature and future
governor in contravention of the annual budgeting process and
violates the constitutional prohibition against dedicating
state revenues. Absent an appropriation for FY20 K-12
education in the budget bills passed this legislative
session, the only appropriation for education will be one
that is unconstitutional in the view of the Department of
Law.
II.
DETAILED ANALYSIS
A.
The FY20 operating budget and education spending.
The
FY19 operating budget bill included an appropriation for
education spending in FY20.3 Although the
legislature’s action in this regard has been referred
to as “future funding,” the more appropriate
description of the legislature’s action is
“future appropriating.”4 In essence, in FY19 the
legislature future appropriated future FY20 revenue for
education in FY20. The three FY20 operating budget
submissions (November 30, December 15, and February 15) all
included a proposed appropriation for FY20 K-12 spending as
well. The legislature, however, did not include these
appropriations in the versions of the operating budget
recently passed by each house.5 Although the legislature
has the opportunity to include an appropriation for FY20 K-12
spending in other appropriation bills pending in the
legislature, it has not done so as of the time of this
opinion.
B.
An annual budget has been the norm and Alaska law recognizes
an annual budget process.
The
Alaska Constitution, court decisions, and historical practice
demonstrate that Alaska has a well-established annual
budgeting model. The Alaska Constitution mandates that the
governor submit a budget “for the next fiscal
year” that sets forth “all proposed expenditures
and anticipated income of all departments, offices, and
agencies of the State.”6 The legislature, in turn,
has the responsibility to determine how much to spend and on
what, and to pass appropriations bills authorizing that
spending.7
The
Alaska Supreme Court at various times has described an annual
budget process in which legislators consider the competing
demands for state funding. For example, the Court has stated
that the legislature and the governor have a “joint
responsibility . . . to determine the State’s spending
priorities on an annual basis.”8 The Court, in its
recent Permanent Fund dividend decision, pointed out that
“[a]bsent another...
