The decision by Gov. Bill Walker to halve the size of the Permanent Fund dividend this year because of the state's financial crisis will resurface just before the checks come out.

Sen. Bill Wielechowski, an Anchorage Democrat, said he plans to file a court challenge in about 10 days, disputing Walker's authority to slice the dividend to $1,000 per person.

He hopes for an expedited court review and an October surprise.

But I wouldn't count on a check any higher than $1,000 next month.

Wielechowski believes that a 1994 decision by the Alaska Supreme Court proves that an annual appropriation is not required for the dividend.

If an appropriation is not required, it follows that it is impossible for Walker to veto any part of it. Therefore, the dividend should be about $2,000, according to this view.

Wielechowski is correct that in a 1994 Supreme Court decision, the justices said that an annual appropriation is not made for dividend payments.

"A percentage of money in the reserve account is automatically transferred to the dividend fund at the end of each fiscal year," the court said 22 years ago.

This would seem to settle the case in Wielechowski's favor.

But there are problems with drawing any conclusions about the Permanent Fund dividend from that 1994 case.

The Supreme Court was wrong.

For 33 years, the money for the dividend has not been on autopilot; legislators have made annual appropriations to fund the dividend formula called for in state law.

"While the Alaska Supreme Court has apparently assumed that the Permanent Fund Dividend transfer is made automatically without an appropriation, this is incorrect," Mike Barnhill, a senior assistant attorney general, wrote in a 2009 opinion. "These funds have annually been appropriated from the earnings reserve account to the Permanent Fund Dividend fund since our opinion in 1983 advising that such transfers should be made by appropriation."

Over this time, eight governors and hundreds of legislators have believed that an annual appropriation is necessary or they would not have put it in the budget time after time.

The court made a statement to the contrary in its 1994 decision, so Wielechowski's case will come down to asserting that the annual dividend appropriations have been superfluous.

The text of the 1994 decision provides little guidance, as it contains only five sentences about the dividend. It was a small part of an unrelated case. There was no history or analysis of the dividend mechanics.

The current practice dates from an action in 1983 during the Sheffield administration after Attorney General Norm Gorsuch said the dividend required an annual spending decision by the Legislature. This reversed the approach taken by the Hammond administration.

Gorsuch said an argument could be made that the transfer did not need annual action, but he said it would be a "tremendous exception" to the constitutional ban on dedicated funds.

"I share your concern that our state government avoid the problems associated with statutory dedications of revenue," Gorsuch wrote to then-Sen. Don Bennett of Fairbanks.

He said the most reasonable interpretation of the Alaska Constitution was that the state "may not transfer income to another fund or authorize it to be spent without an appropriation."

The ban on dedicated funds in Alaska came about because the authors of the Alaska Constitution had seen how other states had created inflexible systems that made it impossible for representative governments to react to changing conditions.

The pending court case on the Permanent Fund dividend veto deals not with a broad policy question about state finances but with technical operational requirements.

We ended up in this position because the Legislature has not been up to the task of dealing with the budget, ducking necessary decisions about cutting the budget, cutting the dividend and enacting new taxes. This legal challenge is a distraction.

Since the inception of the dividend, more than $21 billion has been appropriated and distributed to Alaskans.

For the court to conclude that no appropriations have been required over all these decades — including those dealing with what in some years has been the most costly part of state government — would mean a fundamental change in the power of the executive to control the budget.