Ketchikan Assembly votes against continuing funding suit

With the Alaska Supreme Court decision in hand, the Ketchikan Gateway Borough Assembly decided not to pursue the issue on Saturday.

The Supreme Court issued a unanimous decision against the borough’s lawsuit seeking to strike down the required local contribution, a state law mandating the borough fund a portion of its school district’s annual operating costs. Justice Dana Fabe recused herself from the case due to her husband’s education-related work as a lawyer.

One of the lawsuit’s original supporters, Assembly Member Glen Thompson, said during the second day of the Assembly’s annual policy session that the group had completed its effort.

“We’ve taken this case all the way to the Supreme Court and they have decided,” Thompson said. “I think we have gone as far as we need go in this matter because the Supreme Court has decided.”

He noted he was “extremely disappointed” in the decision and “vehemently” disagreed with some of the court’s arguments.

Assembly members briefly debated whether to continue the lawsuit on Saturday. The debate sprang from the question of whether to move into a secret executive session to hear from Louann Cutler, an attorney from K&L Gates, the Anchorage law firm the Assembly hired to litigate the suit.

The state law in question applied to all boroughs and cities with school districts, and in Ketchikan will amount to $4.7 million in the upcoming fiscal year.

While the decision was unanimous, two Supreme Court justices wrote that the borough could have been successful on other grounds.

The borough argued the law amounted to a dedicated state tax, which is prohibited by the Alaska Constitution. The argument succeeded in Ketchikan Superior Court but failed before the Supreme Court.

The court’s opinion hinged on documents from Alaska’s constitutional convention, and justices wrote that the context from the period show delegates meant public schools to be a cooperative project of both the state and local governments.

However, two justices — Chief Justice Craig Stowers and Daniel Winfree — wrote in their decisions that the required local contribution could be overturned by the public schools clause.

The clause states that the state “shall by general law establish and maintain a system of public schools open to all children of the State, and may provide for other public educational institutions.” Assembly Member Mike Painter, another original supporter of the lawsuit, said the group needed to both hear Cutler and support an additional challenge following the Supreme Court decision.

“I look at this like, man we’ve put so much money into this thing that we can’t quit now,” Painter said. “We’ve got one more fender to put on the car, and, man, it’s cherried out.”

The borough spent more than $430,000 arguing the case, all of it paid to K&L Gates.

One new Assembly member, Stephen Bradford, said he didn’t have an “emotional investment” in the case and said the borough should drop it.

“I would assert that we’ve got so much invested in this now we need to stop, and we shouldn’t spend another dime,” Bradford said. “Part of my reasoning is, once again, we don’t know what we would get if we won.”

Assembly Member Bill Rotecki had a similar opinion, saying the borough couldn’t trust the Alaska Legislature.

If the borough was successful in its suit, the Supreme Court would have put the Legislature to the task of rewriting state law to fit the Constitution.

“What happens (if we win)? It ends up in the Legislature,” Rotecki said. “Who controls the Legislature? The Railbelt. They don’t care about us.”

A vote to enter executive session to discuss the lawsuit failed in a 2-4 vote, with Painter and Assembly Member John Harrington approving the move.

Assembly Member Felix Wong was absent from the meeting.

Cutler, who called into the meeting shortly after the vote, said she was hesitant to discuss details of her advice to the Assembly in public. The meeting ended shortly afterward.

Scott Brandt-Erichsen, the borough attorney, noted the Assembly had until Jan. 19 to file a request for reconsideration to the Supreme Court.

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