Alaska Supreme Court to decide if Dunleavy could create a department during a special session

Governor Mike Dunleavy tried to create a state Department of Agriculture by executive order after the Legislature declined to act. A Juneau judge voided the order as unconstitutional on Dec. 31, 2025, a day before it was to take effect. The Alaska Supreme Court is scheduled to hear the appeal at 9 a.m. Thursday, Nov. 19, 2026, at the Boney Courthouse in Anchorage, with 20 minutes per side. Agriculture remains a division inside the Alaska Department of Natural Resources until the court rules.

The case turns on one phrase in article III, section 23 of the Alaska Constitution, which gives the Legislature "sixty days of a regular session, or a full session if of shorter duration" to reject a governor's reorganization order. Dunleavy argues in his brief that a special session is "a full session" too, so an order takes effect if one ends without a veto. The Legislative Council, a joint House and Senate committee that sued on the Legislature's behalf, reads it to mean a regular session only.

Executive Order 136, issued Jan. 21, 2025, would have moved the Division of Agriculture out of natural resources effective July 1, 2025, but the legislature took no action. Dunleavy then called a special session for Aug. 2, 2025, on creating a Department of Agriculture and education reform, and issued Executive Order 137 the day before it opened. The presiding officer returned it. The Alaska Senate Journal records that the Legislature refused to accept the order for consideration, citing constitutional concerns. The governor's brief puts it differently: the Legislature "chose not to vote on EO 137 at all."

The Legislative Council sued. At its Anchorage meeting on Sept. 10, 2025, the council voted 9-2 to authorize up to $100,000 in outside legal services. Representative Louise Stutes said the order had already been voted down: "What part of no don't you understand?" Dissenting, Representative Mike Prax said a win would set a precedent "that the legislature can act simply by doing nothing, which is not a sound practice for any organization."

Juneau Superior Court Judge Marianna C. Carpeneti ruled Dec. 31, granting the legislature summary judgment, a decision made without a trial because neither side disputed the facts. Chief Counsel Megan A. Wallace quoted the holding in a memo to the council: "[t]he Constitutional drafting history is clear: the framers intended that the Governor transmit a proposed executive order to the Legislature only during a regular session."

Wallace wrote that costs reached $92,050 of the $100,000 authorized and that Stoel Rives LLP estimated the appeal at $75,000 to $85,000. On Feb. 11 the council raised the contract to a total not to exceed $185,000, 11-0.

The governor appealed Jan. 2 and twice sought emergency scheduling. Briefing closed May 8, and nothing on the docket records a stay, so the ruling holds while the appeal is pending.