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Press Release

Attorney General releases formal AG Opinion on constitutionality of prior education funding appropriation

May 9, 2019

(Anchorage, AK) – Attorney General Kevin G. Clarkson released today his first formal Attorney General Opinion. The Attorney General was asked "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." The Opinion finds that the appropriation violates the constitutional annual budgeting process, the dedicated funds clause, and the Executive Budget Act. This leads to the conclusion: "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."

The following are some excerpts from the Opinion:

"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."

"…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."

"The key to the Court's holding in Sonneman is that the anti-dedication clause is violated whenever the legislature attempts to restrict the use of future revenues to a single purpose—thus making the future funds immune from either a future legislature's appropriation power or a future executive branch's reach."

"Given these basic constitutional rules, it is our opinion that an appropriation that seeks to expend future money (in contrast to an appropriation authorizing revenues that have been received by the state in the current fiscal year to be spent in a future fiscal year) is unconstitutional."

Attorney General Clarkson had submitted a letter to legislative leadership on April 9, 2019 alerting the legislature to the potential constitutional problem with relying on the prior appropriation of future revenues. At the conclusion of the letter, he stated: "I am in the process of fully vetting this issue and plan on issuing a formal attorney general opinion on the subject in the near future. But I thought it was important to raise this concern with you now so you can consider this information as you continue your deliberations on the FY20 budget."

The process for a formal Attorney General Opinion involves multiple attorneys researching and reviewing the opinion, followed by a thorough review and editing directly by the Attorney General. The process occurs solely within the Department of Law and represents the Attorney General's legal opinion on the matter, not a policy position.

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Department Media Contact: Senior Assistant Attorney General Cori Mills at (907) 465-2132 or cori.mills@alaska.gov.