Juneau -- In a letter sent today to Attorney General Bruce Botelho, members of the Alaska House and Senate urged the state to appeal the March 16 ruling by Superior Court Judge Sen Tan in the case of Planned Parenthood of Alaska v. Karen Perdue, and also to request a stay of the judge's order pending resolution of the appeal.

"The Alaska constitution grants exclusive authority to elected legislators to appropriate public funds, but now in the Planned Parenthood v. Perdue decision we see a non-elected judge extending his power into the appropriations process by telling the legislature how and why it can spend public funds," stated Representative Fred Dyson (R-Eagle River), who initiated the letter signed by 21 members of the House and 11 members of the Senate.

In the Planned Parenthood v. Perdue decision, Anchorage Superior Court Judge Sen Tan found fault with the Legislature's decision in 1998 to create a new program to provide medical assistance to lower-income Alaskans, called the "Chronic and Acute Medical Assistance Program" (CAMA). Because the CAMA program pays for pre-natal care for pregnant women, the judge ruled that the fund must also pay for elective abortions. Failure of the state to pay for abortions, the judge opined, would violate a woman's "fundamental right to privacy" because it is a "coercive financial incentive" that interferes with her decision on whether or not to have an abortion.

In the letter sent to Botelho, the lawmakers noted that Judge Tan's logic could be used to invalidate numerous other actions by the Legislature: "Similar to the U.S. Congress and other state legislatures, the Alaska Legislature has long employed financial incentives and disincentives to encourage or discourage certain forms of behavior, even those that are legal (e.g., smoking). These incentives can take the form of a decision to grant or not grant a subsidy, or the decision to impose taxes, or create a tax exemption. Reasonable people can disagree on which behaviors ought to be encouraged and which deserve to be discouraged through the use of financial incentives. These decisions are thoroughly political in nature - and therefore the proper domain of elected officials who are held accountable for their decisions by the voters."

Representative Dyson described Judge Tan's ruling as another example of the judiciary expanding its power beyond what the constitution allows. "Last year in the Bess v. Ulmer decision, the Alaska Supreme Court decided it could deny Alaskans their right to vote by rewriting or even removing proposed constitutional amendments from the ballot. Now this month we have a Superior Court judge interfering with the budget process by ruling the legislature cannot control and prioritize state expenditures by the appropriation process. We must have the courage to call a spade a spade - these decisions constitute an unlawful 'power grab' on the part of the judiciary, and they must be resisted if we are to preserve elected government in this state. It's time to remind judges that they are constitutionally limited judges of the law, not lawmakers."

March 26, 1999

The Honorable Bruce Botelho
Attorney General of Alaska
PO Box 110300
Juneau, AK 99811-0300

Dear Attorney General Botelho:

We write to express our grave concern with the March 16 decision of Superior Court Judge Sen K. Tan in the case of Planned Parenthood of Alaska v. Perdue (3AN 98-7004 CI). We believe Judge Tan has impermissibly extended judicial power into the process of legislative appropriations, thereby violating the separation of powers doctrine implicit in the Alaska Constitution.

As you are aware, Article II of the state constitution grants law-making authority to the legislature. In addition, Section 13 of Article IX states clearly:

"No money shall be withdrawn from the treasury except in accordance with appropriations made by law. No obligation for the payment of money shall be incurred except as authorized by law." [emphasis added]

In Planned Parenthood v. Perdue the Superior Court has ruled that a decision by the legislature to not subsidize a legal medical procedure "impermissibly interferes" with an individual's right to obtain that procedure. Judge Tan argues that the legislature is employing a "coercive financial incentive" by choosing to fund some legal medical services, but not others:

"Once it [the legislature] undertakes to fund medical treatment for indigent Alaskans, it cannot withhold funds from some eligible persons because they choose to exercise a constitutional right."

We believe the chain of reasoning employed by Judge Tan sets a dangerous precedent that could potentially undermine numerous past and future legislative enactments, depending on how future courts interpret and expand upon this ruling.

Similar to the U.S. Congress and other state legislatures, the Alaska Legislature has long employed financial incentives and disincentives to encourage or discourage certain forms of behavior, even those that are legal (e.g., cigarette smoking). These incentives can take the form of a decision to grant or not grant a subsidy, or the decision to impose taxes or create a tax exemption.

In general, a decision to withhold a subsidy is a less coercive means of achieving a desired end than imposing taxes. Yet both tools have been used by the legislature - and both means are protected by the constitution.

Reasonable people can disagree on which behaviors ought to be encouraged and which deserve to be discouraged through the use of financial incentives. These decisions are thoroughly political in nature - and therefore the proper domain of elected officials who are held accountable for their decisions by the voters.

For example, smoking cigarettes is certainly a form of legal, constitutionally protected behavior. Yet the legislative history behind the tobacco tax enacted in 1997 makes it abundantly clear that one of the motivations for imposing the tax was to create a financial disincentive for smoking. In short, the legislature chose to favor one form of legal behavior over another.

Similarly, in 1996 the legislature enacted a major welfare reform bill creating the "Alaska Temporary Assistance Program" (AS 47.27). Sizable reductions in welfare caseloads have been realized under ATAP because of financial incentives and disincentives. For example, under ATAP a family is denied financial assistance for a certain period of time if their need for assistance is the result of the adult applicant's "voluntary separation from suitable employment without good cause." Certainly in our society a person can choose whether he or she wishes to hold employment or not. It is reasonable to assume the Alaska courts would find that both choices are legal and constitutionally protected. Yet, through ATAP, the state clearly conditions receipt of public assistance on a person's decision to hold or not hold a job. Again, the state shows a clear bias in favor of one form of legal, constitutionally protected behavior.

We believe the Planned Parenthood v. Perdue decision raises the significant issues of separation of powers and the appropriate role of the judicial branch under our constitutional system of self-government. We respectfully urge you to file a notice of appeal with the Supreme Court and also request a stay of the Superior Court's order pending the resolution of the appeal.

Sincerely,