## Facts

- The Alaska Constitution provides that certain gubernatorial appointees, including principal department heads and members of boards and commissions, take office only after confirmation by a majority of the legislature voting in joint session.
- Alaska Statute § 39.05.080(3) included a provision stating that if the legislature failed to act to confirm or decline to confirm an appointment within the required time, the failure to act would be treated as a declination of confirmation.
- In 2020, Governor Mike Dunleavy submitted more than 90 appointments requiring legislative confirmation.
- After the start of the COVID-19 public-health emergency, the legislature enacted House Bill 309, which extended the time for legislative action on the pending appointments until after the emergency ended, while still keeping the concept that inaction by a specified deadline would be treated as a declination.
- After the public-health emergency ended, the legislature did not vote in joint session on the appointments by the extended deadline; under the statute as modified by H.B. 309, the inaction would have operated as a rejection.
- The day after the deadline passed, the governor informed the legislature that he believed the appointees could continue serving as recess appointments.
- The Alaska Legislative Council, acting on behalf of the legislature, filed suit in superior court seeking declaratory relief that the appointments were invalid because they had been rejected by operation of the statute and H.B. 309 and therefore could not continue.
- The superior court granted summary judgment to the Legislative Council, ruling the “inaction equals rejection” provisions constitutional; the governor appealed.

## Issues

1. Whether Article III, sections 25 and 26 of the Alaska Constitution permit the legislature to treat its failure to vote in joint session on gubernatorial appointees as a rejection through statute or temporary legislation.
2. If the “inaction equals rejection” provisions are unconstitutional, whether the challenged appointments remain effective until the legislature acts by a joint-session vote.

## Decision

- The Alaska Supreme Court reversed the superior court’s grant of summary judgment for the Alaska Legislative Council and vacated the resulting declaratory judgment.
- The court held unconstitutional the “tantamount to a declination” language in AS 39.05.080(3) and the related provisions in H.B. 309 to the extent they made legislative inaction operate as rejection of appointments subject to joint-session confirmation.
- Because the constitution requires confirmation decisions to be made by majority vote in joint session, the legislature’s failure to act by a statutory deadline could not, by itself, amount to a constitutional rejection.
- The court concluded that the appointments at issue remained in effect unless and until the legislature acted on them in joint session as the constitution requires.

## Legal Principles

- When the Alaska Constitution assigns the legislature a confirmation function “by a majority of the members of the legislature in joint session,” the legislature must convene in joint session and vote to confirm or decline to confirm; nonaction is not an authorized substitute.
- Statutes cannot replace or modify constitutionally specified procedures for confirmation by creating default outcomes (such as automatic rejection) that eliminate the constitution’s voting requirement.
- Where no valid joint-session vote has occurred, appointments requiring confirmation are not rejected merely because a statutory deadline passes; they continue to have effect until the legislature acts through the constitution’s required method.
- Constitutional interpretation begins with the constitutional text and may be confirmed by drafting history; when the text requires a vote in joint session, the legislature cannot achieve the same result through an “inaction” mechanism.

## Conclusion

The Alaska Supreme Court held that Alaska’s constitution requires the legislature to confirm or decline to confirm covered gubernatorial appointees only through a majority vote in joint session, so statutory and temporary provisions treating legislative inaction as rejection are unconstitutional and the appointments remain effective until a proper joint-session vote occurs.


Dunleavy v. Alaska Legislative Council, 498 P.3d 608 (2021)