You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Era Aviation v. Campbell (3/29/96), 915 P 2d 606
<![CDATA[
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, telephone (907) 264-0607, fax (907) 276-
5808.
THE SUPREME COURT OF THE STATE OF ALASKA
ERA AVIATION, INC., )
) Supreme Court No. S-6467
Appellant, )
) Superior Court No.
v. ) 3AN-91-8086 CI
) 3AN-93-7929 CI
BRUCE A. CAMPBELL, in his )
capacity as Commissioner of )
Transportation and Public ) O P I N I O N
Facilities; ALASKA DEPARTMENT )
OF TRANSPORTATION AND PUBLIC ) [No. 4332 - March 29, 1996]
FACILITIES; and the STATE OF )
ALASKA, )
)
Appellees. )
______________________________)
)
ALASKA AIRLINES, INC.; REEVE )
ALEUTIAN AIRWAYS, INC.; )
NORTHERN AIR CARGO, INC.; and ) Supreme Court No. S-6468
PENINSULA AIRWAYS, INC., )
)
Appellants, )
)
v. )
)
FRANK G. TURPIN, in his )
capacity as Commissioner of )
Transportation and Public )
Facilities; ALASKA DEPARTMENT )
OF TRANSPORTATION AND PUBLIC )
FACILITIES; and the STATE OF )
ALASKA, )
)
Appellees. )
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage,
Joan M. Woodward, Judge.
Appearances: James N. Leik, Perkins Coie,
Anchorage, for Appellant Era Aviation, Inc.
James N. Reeves, Steven L. Jones and Brenda
T. Rhoades, Bogle & Gates, Anchorage, for
Appellants Alaska Airlines, Inc., Reeve
Aleutian Airways, Inc., Northern Air Cargo,
Inc., and Peninsula Airways, Inc. Carolyn E.
Jones, Assistant Attorney General, Anchorage,
and Bruce M. Botelho, Attorney General,
Juneau, for Appellees.
Before: Rabinowitz, Matthews, Compton and
Eastaugh, Justices. [Moore, Chief Justice,
not participating.]
EASTAUGH, Justice.
I. INTRODUCTION
Air carriers sought refunds of landing fees they paid
to the Alaska Department of Transportation and Public Facilities
(Department) under a regulation subsequently declared illegal.
The superior court dismissed their claims on summary judgment.
We affirm.
II. FACTS AND PROCEEDINGS
In June 1991 the Department promulgated a regulation
which increased landing fees at State rural airports.1 In
September 1991 several air carriers (the Original Plaintiffs),
who are not parties to the present action, brought suit against
the Commissioner of Transportation and Public Facilities, the
Department, and the State, alleging that the regulation was
illegal, and requesting injunctive relief and a refund of the
landing fees paid by them under the regulation. In March 1993
the superior court granted partial summary judgment to the
Original Plaintiffs, holding that the landing fees regulation did
not comply with the Alaska Administrative Procedure Act (APA) and
was thus invalid and unenforceable. The court enjoined the
Department from collecting fees under the regulation and ordered
the Department to reimburse to the Original Plaintiffs the
landing fees they paid under the regulation, with interest. The
Department did not appeal this ruling.
Four days before the court entered its order granting
partial summary judgment to the Original Plaintiffs, Alaska
Airlines, Reeve Aleutian Airways, Northern Air Cargo, and
Peninsula Airways moved to intervene in the original litigation.
The court granted their motion on April 26, 1993. The court
noted that the Department conditionally did not oppose the
intervention, but requested the opportunity to assert new
defenses against the intervenors' claims for refunds.
In August 1993 Era Aviation filed a separate lawsuit
for a refund of landing fees it had paid between September 1991
and March 1993. The court consolidated the actions brought by
Era and the intervenors. The defendants moved for summary
judgment. In June 1994 the court granted that motion, holding
that the intervenors and Era (collectively "Air Carriers") were
required to protest the landing fees when they paid and failed to
do so, that the their fees were not paid under duress, and that
the equal protection provision of the Alaska Constitution did not
require that refunds be given to all carriers despite the refunds
awarded the Original Plaintiffs. This appeal followed.
III. DISCUSSION2
All parties agree that the Air Carriers' remedy for
relief lies in a common law action in assumpsit.3 However, the
Department argues that in Alaska, an action in assumpsit requires
a protest at the time of payment and a showing of involuntary
payment in order to make a payer eligible for reimbursement of
amounts paid if a statute is later deemed illegal. The Air
Carriers argue that the protest required under Alaska law applies
only to tax payments and that user fees, such as the landing fees
at issue here, require at most a showing that the payment was
made involuntarily.
A. Actions in Assumpsit under Alaska Common Law
Alaska Statute 43.10.210 provides that the Department
of Administration must refund a taxpayer the amount of tax paid
under protest to the Department of Revenue if the taxpayer
recovers a judgment against the Department of Revenue, or if it
is obvious to the Department of Revenue that the taxpayer would
obtain such judgment if he or she undertook legal proceedings.4
In State v. Wakefield Fisheries, Inc., 495 P.2d 166,
172 (Alaska 1972), we held that, in addition to the statutory
remedy provided by AS 43.15.010 (now AS 43.10.210), a taxpayer
could also seek a refund through the common law assumpsit remedy
upon a showing of involuntariness and duress, despite a failure
to protest at the time of payment. In Principal Mutual Life
Insurance Co. v. State, 780 P.2d 1023, 1030 (Alaska 1989), this
court "overrule[d] that portion of Wakefield which holds that
there is no requirement that a taxpayer formally protest the
payment of the tax at the time of payment in order to
subsequently maintain a common law action in assumpsit for a tax
refund." We have since reaffirmed the proposition that, under
common law as well as under statute, a protest at the time of
payment is a prerequisite for an action to recover taxes.5
In essence, the Department argues that the protest
requirement articulated in Principal Mutual applies to all
actions in assumpsit, whether the plaintiffs seek refunds of
taxes, user fees, or license fees. The Air Carriers argue that
Principal Mutual only affected the common law action in assumpsit
for tax refunds and left undisturbed the common law action in
assumpsit for user fees.
The Air Carriers present several arguments in support
of their position that a protest at the time of payment should
not be required for reimbursement of user fees paid under an
illegal regulation. They correctly argue that the majority
common law rule is that protest at the time of payment is not
required for reimbursement of taxes or fees where the payment is
shown to have been made under duress.6 The New Jersey Supreme
Court has reasoned that the requirement that taxes or fees must
have been paid involuntarily arises from the fact that people are
supposed to know the law and thus if one "voluntarily makes a
payment which the law would not compel [one] to make, [one]
cannot afterwards assign [one's] ignorance of the law"as grounds
justifying reimbursement. In re Increase in Fees by N.J. State
Bd. of Dentistry, 423 A.2d 640, 643 (N.J. 1980) (citing 3 T.
Cooley, Taxation ' 1282, at 2565 (4th ed. 1924)). See also S.S.
& O. Corp. v. Township of Bernards Sewerage Authority, 301 A.2d
738, 748 (N.J. 1973) (stating that the question a court must ask
in determining whether payment should be reimbursed is, "has the
person complaining been constrained to do what he otherwise would
not have done"). Thus, substantial authority supports the rule
that a showing of involuntary payment is sufficient under the
common law to support reimbursement. Indeed, a showing of
protest alone may be insufficient under the common law.
Restatement of Restitution ' 75 cmts. f & h (1937).7
The Air Carriers also argue that denying a refund of
fees paid under an illegal regulation undermines AS 37.10.050,
which prohibits the collection of unauthorized fees.8 Finally,
the Air Carriers argue that the rationale behind the requirement
of a protest at the time of payment should not apply where the
State did not alter its fiscal plan even when the Original
Plaintiffs protested, and in fact spent the landing fees on
operations.
The problem with the Air Carriers' analysis is that
their arguments regarding user fees would apply equally to claims
for reimbursement of taxes and license fees. We have already
resolved, on grounds of public policy, the question whether a
taxpayer must file a protest at the time of payment in order to
seek a refund. As this court has stated:
The burden of requiring a taxpayer to file a
protest at the time of payment of the tax is
at most minimal. On the otherhand the
requirement of a protest serves the important
function of providing state government with
notice of the claimed tax illegality, the
grounds advanced in support of the claimed
illegality, and affords the state the
opportunity to fashion budget appropriations,
or expenditures, taking into account the
magnitude of the claimed tax illegality.
Principal Mut., 780 P.2d at 1030-31. Other jurisdictions have
also upheld protest at the time of payment on grounds of public
policy. See Brandt v. Riley, 33 P.2d 845, 847 (Cal. App.
1934)(statute requiring written protest is intended not only to
furnish proof of involuntary payment but also to warn collector
that the tax is claimed to be illegal); Reynolds v. City and
County of San Francisco, 125 Cal. Rptr. 673, 674 (Cal. App. 1975)
(same). Courts have also stated that the requirement of a
protest at the time of payment is designed to liberalize the
repayment of illegally collected levies by eliminating the need
to make the often difficult showing of duress. Principal Mut.,
780 P.2d at 1030 ("The purpose of [AS 43.10.210] is to liberalize
recoveries by creating rights where formally none existed.")
(quoting Pacific Am. Fisheries, Inc., v. Mullaney, 105 F. Supp.
907, 909 (D. Alaska 1952)); Carpenter v. City of Ann Arbor, 192
N.W.2d 523, 524 (Mich. App. 1971) ("The effect of the payment
under protest statute is to make such a payment involuntary
irrespective of any question of duress."). Alaska Statute
43.10.210(c), which applies to license taxes, further supports
the Department's case because license taxes are analytically
identical to user fees. Carlson v. State, 798 P.2d 1269, 1280
(Alaska 1990). See Restatement of Restitution ' 75 cmt. c
(distinguishing "compulsory contributions" which cannot be
avoided by refusing to receive the benefits from charges "made
only to users of the service").
We hold that the requirement of a formal protest at the
time of payment, see Principal Mutual, 780 P.2d at 1030, applies
to all actions in assumpsit brought against a government entity.
In addition to the reasons discussed above, this rule is also
beneficial because it establishes a uniform requirement for all
actions in assumpsit, ensuring greater certainty about the
procedure one must follow when paying a sum to the government
under what is believed to be an invalid statute or regulation.
Thus, whether the Air Carriers are entitled to a refund of fees
paid under the invalid regulation depends on whether they
protested the regulation at the time of payment.
B. Protest at Time of Payment
As noted above, a protest at the time of payment
provides the government with notice of the claimed illegality and
allows the State to more accurately budget revenues by taking the
magnitude of the allegedly illegal levy into account. Principal
Mut., 780 P.2d at 1030. Thus, the protest must not only notify
the State that the payer believes the levy to be illegal, but
must also signal that the payer intends to seek a refund of the
monies illegally levied. Private Truck Council of America, Inc.
v. State, 517 A.2d 1150, 1156 (N.H. 1986); City of Buffalo v.
Wysocki, 447 N.Y.S. 386, 389 (N.Y. Sup. 1982). Without a
protest, the State would not be able to accurately determine the
likely budgetary impact of the allegedly illegal levy.
Air Carriers argue that even if a protest is required,
they met that requirement because: (1) Air Carriers stated their
opposition to the landing fees on numerous occasions; and (2) the
suit filed by the Original Plaintiffs gave the Department notice
that the collection of landing fees from the Air Carriers could
be illegal. Both of these arguments fail.
The Air Carriers' opposition to the landing fee
regulation does not constitute a protest of payment. The Air
Carriers lobbied extensively before the Department and the
legislature in an attempt to prevent the adoption of the landing
fees program. After the regulation was adopted, the Air Carriers
continued their attempt to persuade the Department to pursue an
alternate method of increasing its operating revenues.
However, as the Department points out, virtually every
regulation or statute is opposed by some subset of the polity.
This opposition is generally expressed in the same ways used by
the Air Carriers to express their opposition to the landing fee
regulation -- by writing letters, giving public testimony, and
lobbying legislators. Those opposing new regulations will
sometimes state their belief that the proposed regulations are
illegal, as the Air Carriers did here. Nonetheless, the
frequency of such opposition and the tendency of many to accept
disagreeable laws and regulations without legal challenge renders
opposition to a regulation insufficient notice that those voicing
their opposition will someday sue the government and seek a
refund of monies they have paid under the regulation. Because
the purpose of the protest requirement is to provide notice to
the State that a payer intends to seek refund of monies it
believes to have been illegally collected, expressions of
disagreement which do not provide this notice should not be
considered protests authorizing reimbursement. The Air Carriers'
opposition to implementing this landing fees regulation was not
sufficient to put the Department on notice that Air Carriers
intended to legally challenge the regulation and seek
reimbursement of monies collected thereunder.
Air Carriers suggest that letters in the record voicing
their opinion that the fees were inequitable and discriminatory
create a genuine issue of material fact justifying remand.
Nothing in the record suggests that the Air Carriers provided
notice, contemporaneous with their payment, that they intended to
seek reimbursement.
We do not feel that it is profitable to inquire into
whether a given complaint of unfairness is vociferous enough to
give notice of an impending legal challenge. Theoretically a
payer might make clear to the State that it intends to seek
reimbursement for a given payment without actually saying so.
However, the uncertainty that the State would face were we to
sanction such a possibility would far outweigh any benefits that
might accrue should this eventuality arise. Moreover, courts are
ill suited to reconstruct, ex post facto, the State's perspective
on a payer's communication of dissatisfaction.
To later bring an action in assumpsit, a payer must
specifically notify the State, whether by the words "paid under
protest" or otherwise, that it intends to seek reimbursement.
Because there is no evidence in the record that such notice was
given, summary judgment was proper.
Similarly, the lawsuit filed by the Original Plaintiffs
did not satisfy or excuse the Air Carriers' obligation to protest
when paying. That lawsuit could have satisfied only the Original
Plaintiffs' protest obligation. Cf. Corporate Property Investors
v. Board of Assessors, 545 N.Y.S.2d 166, 170 (N.Y. Sup. 1989)
(holding that commencement of declaratory judgment action
challenging tax assessment satisfied the requirement of protest
at time of payment). Even though, as the Air Carriers assert,
that lawsuit notified the Department that the legality of its
landing fee regulation was in question, it did notify the
Department that the Air Carriers would also challenge the
regulation and seek a refund of landing fees they had paid under
the regulation. As we have seen, a protest is required because
the State must be able to determine accurately what part of its
collected revenues might be subject to refund. This ability
would be undermined if a single lawsuit (which was not even a
class action) were deemed sufficient notice to make all payers
under the regulation eligible for refunds.
The Air Carriers' strongest argument is that, as the
Department concedes, the State spent all the money collected from
every air carrier, and did not separate landing fees collected
from the Original Plaintiffs from landing fees collected from the
intervening air carriers and Era. A failure by the State to use
the protest for the purpose intended might imply that the State
is using the protest requirement to arbitrarily bar claims of
some payers, rather than to formulate a dependable fiscal
projection. It is equally inferable, however, that the State
determined that it was not fiscally imperative here to segregate
the disputed landing fees. Regardless, this court has held that
the State should be given the opportunity to consider the
potential effect of refund claims when assessing its financial
condition. There has been no showing that this opportunity is of
no utility or has been abused. We hold that the lawsuit filed by
the Original Plaintiffs did not satisfy the Air Carriers' protest
requirement.
C. Equal Protection
The Air Carriers argue that denying them reimbursement
while reimbursing the Original Plaintiffs violates the Equal
Protection Clause of the Alaska Constitution.9 The Air Carriers
and Department agree that this classification must satisfy the
"rational basis" test, which requires that a classification be
reasonable and not arbitrary and that it rest upon a distinction
"having a fair and substantial relation to the object of the
legislation." Herrick's Aero-Auto-Aqua Repair Serv. v. State,
754 P.2d 1111, 1114 (Alaska 1988) (quoting Isakson v. Rickey, 550
P.2d 359, 369 (Alaska 1976)). The Department argues that
distinguishing between protesting and non-protesting payers is a
legitimate, rational basis for refunding the fees paid by the
Original Plaintiffs while refusing to refund the fees paid by the
Air Carriers. The Air Carriers concede that this distinction
would arguably justify the differential treatment, except that
the Department did not in fact segregate the fees paid by the
Original Plaintiffs. The Air Carriers argue that because the
Department did not segregate those fees, the Department's
justification rests upon a hypothetical claim that if the Air
Carriers had protested, the Department would have changed its
fiscal plans in preparation for the possibility of this
additional refund.
Air Carriers assert that a classification for purposes
of equal protection may not be based on hypothetical facts. See
Herrick's, 754 P.2d at 1114; Isakson, 550 P.2d at 362. The
distinction between protesting and non-protesting payers is not
hypothetical; it is an actual distinction which is present in
this case. We articulated the justification for this distinction
in Principal Mutual, 780 P.2d at 1030, and for the reasons noted
supra, part A, it is rational. Moreover, as noted above,
although the Department does not appear to have changed its
fiscal plans in response to the Original Plaintiffs' lawsuit,
that circumstance does not demonstrate that the Department would
not have changed its fiscal plans if it had known that additional
air carriers also intended to seek refunds of the fees they paid.
Consequently, we hold that the Department's refusal to refund the
landing fees paid by the Air Carriers did not violate their right
to equal protection.10
IV. CONCLUSION
Having failed to protest when paying the fees imposed
by a regulation later held to be invalid, the Air Carriers are
not entitled to a refund of those fees. Further, the
Department's refusal to refund those fees does not violate Air
Carriers' right to equal protection. We AFFIRM the judgment
below.
_______________________________
1 The regulation became effective on August 1, 1991, and
provided that air carriers would pay forty cents per 1,000 pounds
of certificated maximum gross takeoff weight (CMGTW) per landing.
The regulation provided that these landing fees would apply to
certified rural airports and excluded certain types of aircraft.
The regulation further provided that payment of landing fees
would be submitted by the 15th of the month following the month
in which the landings occurred.
2 We will uphold an order of summary judgment if the
record presents no genuine issue of material fact and "the moving
party was entitled to judgment on the law applicable to the
established facts." Newton v. Magill, 872 P.2d 1213, 1215
(Alaska 1994). When the lower court makes this determination,
all reasonable inferences of fact from the record must be drawn
against the moving party and in favor of the non-moving party.
Sea Lion Corp. v. Air Logistics of Alaska, Inc., 787 P.2d 109,
116 (Alaska 1990). If in reviewing the summary judgment order we
must answer questions of law, we will adopt the rule of law which
is most persuasive in light of precedent, reason and policy.
Ford v. Municipality of Anchorage, 813 P.2d 654, 655 (Alaska
1991).
3 In addition, Era argues that this court could provide a
remedy by recognizing an implied private right of action for
enforcement of AS 37.10.050(a). Because this issue was not
adequately briefed, we will not consider it on appeal. Petersen
v. Mutual Life Ins. Co., 803 P.2d 406, 411 (Alaska 1990).
4 AS 43.10.210 provides that:
Recovery of overpayments and protested
payments. (a) The Department of
Administration shall, with the approval of
the attorney general and the Department of
Revenue, refund to a taxpayer the amount of a
tax paid to the Department of Revenue under
protest and deposited in the treasury if
(1) the taxpayer recovers judgment
against the Department of Revenue for the
return of the tax; or
(2) in the absence of a judgment, it is
obvious to the Department of Revenue that the
taxpayer would obtain judgment if legal
proceedings were prosecuted by the taxpayer.
(b) The Department of Administration
shall refund the amount of an overpayment to
a taxpayer if the Department of Revenue, on
audit of the account in question, determines
that a remittance by the taxpayer exceeds the
amount due.
(c) If the department and the attorney
general determine that a licensee has paid a
license tax and is prevented from using the
license by court order, administrative
decision, or other cause beyond the control
of the taxpayer, the Department of
Administration shall refund the amount of the
license tax to the licensee.
5 Kenai Peninsula Borough v. Port Graham Corp., 871 P.2d
1135, 1139 (Alaska 1994) (reaffirming Principal Mut. and holding
that State and local law supplanted the common law remedy for tax
reimbursement); Saunders Properties v. Municipality of Anchorage,
846 P.2d 135, 139 n.7 (Alaska 1993) (stating in dictum that,
"[a]ctions to recover taxes paid under protest, both under
subsection (a) [of AS 29.45.500] and at common law, require a
formal protest at the time of payment"); Carlson v. State, 798
P.2d 1269, 1280 (Alaska 1990) (interpreting Principal Mut.) ("we
[have] clearly held that both under the statute and common law,
the taxpayer must formally 'protest the payment of the tax at the
time of payment in order to subsequently maintain' either a
common law or statutory cause of action"); Bethel Util. Corp. v.
City of Bethel, 780 P.2d 1018, 1021 (Alaska 1989) ("Insofar as
Wakefield allowed an action for recovery of taxes without
following the statutory requirement that the taxes be paid under
protest, it has been overruled").
6 See Brandt v. Riley, 33 P.2d 845, 846 (Cal. App. 1934)
(taxes illegally collected under duress may be reclaimed unless
statute provides that written protest is required); Whyte v.
State, 294 P. 417, 418 (Cal. App. 1930) ("when payment is made
under compulsion, no protest is necessary, in the absence of a
special statute to the contrary"); Ves Carpenter Contractors,
Inc. v. City of Dania, 422 So. 2d 342, 345 (Fla. App. 1982)
(applying principal that the payment of an illegal tax, even
without protest, in order to avoid forfeiture of the right to do
business is not a voluntary payment); Broward County v. Mattel,
397 So. 2d 457, 460 (Fla. App. 1981) (stating the fact that tax
not paid under protest "does not determine whether it was paid
voluntarily or involuntarily and has little or no weight on the
question"); Selectmen of Hull v. County Comm'rs of Plymouth, 422
N.E.2d 787, 788 (Mass. App. 1981) (stating the "general rule"
applied in tax cases where no statute makes provision to the
contrary that one may not recover money paid under a claim of
right unless payment has been made under duress); Private Truck
Council of America, Inc. v. State, 517 A.2d 1150, 1156 (N.H.
1986) (in order to recover taxes under common law plaintiffs must
prove they paid tax involuntarily) (citing Ward v. Love County,
253 U.S. 17, 22 (1920)); Continental Trailways, Inc. v. Director,
Div. of Motor Vehicles, 509 A.2d 769, 781 (N.J. 1986) (when an
illegal levy is voluntarily paid the assumption that money
illegally collected by the government must be refunded does not
apply) (citing In re Increase in Fees by N.J. State Bd. of
Dentistry, 423 A.2d 640 (N.J. 1980)); City of Buffalo v. Wysocki,
447 N.Y.S.2d 386, 389 (N.Y. Sup. 1982) (only taxes paid under
protest or duress may be recovered); Union Bag & Paper Corp. v.
State, 295 P. 748, 751 (Wash. 1931) ("where payments are
involuntary, and made under legal duress, there has never been
any rule requiring a specific protest.").
This court stated in Principal Mutual:
The general rule at common law is that if an
illegal tax is voluntarily paid by the
taxpayer without compulsion it cannot be
recovered back in an action at law. . . .
Accordingly, there is also authority which
holds that taxes . . . cannot be recovered
where there was no protest made at the time
of payment.
780 P.2d at 1030 (footnotes omitted).
7 Section 75 of the Restatement of Restitution provides
in relevant part:
(1) Except as otherwise provided for by
statute, a person who without mistake of fact
pays a tax or assessment to a municipal
corporation, or to a State if a suit for
restitution is permitted against the State,
is entitled to restitution of the amount paid
if, but only if,
(a) the statute, ordinance, or
administrative order by virtue of which the
tax or assessment was levied and paid was
void as to the payor, and
(b) the payor reasonably believed
that if the payment was not made the means
taken to enforce collection of the tax or
assessment would subject him to serious risk
of imprisonment or of the loss of possession
of his things or of other substantial loss.
Comment f states that restitution is allowed if the payment was
made under duress, including the threat of inability to continue
or retain one's business. Comment h states that payment under
protest is not sufficient evidence of duress standing alone and
that the failure to object at time of payment will not prevent
later restitution except, as stated in Comment j, where the payer
seeks to recover from an officer who has paid over the money.
Restatement of Restitution ' 75.
The Department argues that the landing fees are outside
the scope of ' 75, citing Comment c, which states that the
section does not apply to charges made only to the users of the
service. However, the distinction between user fees and other
types of assessments appears immaterial.
Although the Restatement cites no case law supporting a
distinction between user fees and other taxes and assessments,
the language of Comment C suggests that user fees are presumed
voluntary because one chooses to become a user. See also, 36A
C.J.S. Fee at 249 (1961) (a fee can be defined as a "voluntary
payment for a particular privilege"); Stewart v. Verde River
Irrigation & Power Dist., 68 P.2d 329, 335 (Ariz. 1937) ("a fee
is always voluntary in the sense that the party who pays it
originally has, of his own volition, asked a public officer to
perform certain services for him which presumably bestow upon him
a benefit not shared by other members of society"). Nonetheless,
case law does not distinguish between user fees and other
assessments in determining whether reimbursement should be
allowed. See, e.g., In re Increase in Fees by N.J. State Bd. of
Dentistry, 423 A.2d at 644 (holding that occupational fees were
involuntarily paid and thus should be reimbursed); Pacific Am.
Fisheries v. Mullaney, 105 F. Supp. 907, 909 (D. Alaska 1952)
(the common law of assumpsit encompasses any "money had and
received," not just taxes, when the duty to pay the money is
imposed by law). Moreover, precluding recovery of user fees on a
theory they are presumed voluntary serves no purpose because the
payer is nevertheless required to demonstrate the fee was paid
involuntarily to be eligible for a refund. Thus, even if user
fees were not covered by ' 75, the analysis would be nearly the
same under the common law doctrine of business compulsion. See
Totem Marine Tug & Barge, Inc. v. Alyeska Pipeline Serv. Co., 584
P.2d 15, 21-22 (Alaska 1978) (satisfying business compulsion test
requires that one party involuntary accepted the terms of another
as a result of the other party's coercive acts and that the
circumstances permitted no alternative). Finally, AS 43.10.210
covers license fees as well as taxes. Thus, the Alaska
legislature did not distinguish between at least some types of
user fees and taxes in adopting AS 43.10.210.
8 AS 37.10.050(a) provides:
A state agency may not charge for the
provision of state services unless the charge
(1) is set or otherwise authorized by
statute; and (2) where a regulation is
necessary, is set by or provided for in a
regulation that meets the standards of AS
44.62.020 and 44.62.030. A fee or other
charge that is set by regulation may not
exceed the estimated actual costs of the
state agency in administering the activity or
providing the service unless otherwise
provided by the statute under which the
regulation is adopted; this limitation does
not apply to sales of property by a state
agency. Unless specifically exempted by
statute, a state agency authorized to collect
or receive fees, licenses, taxes, or other
money belonging to the state shall account
for and remit the receipts, less fees to
which the collector is entitled by statute or
regulation, to the Department of Revenue at
least once each month. The commissioner of
administration shall separately account under
AS 37.05.142 for receipts deposited under
this subsection.
9 Article I, section 1 of the Alaska Constitution
provides:
This constitution is dedicated to the
principles that all persons have a natural
right to life, liberty, the pursuit of
happiness, and the enjoyment of the rewards
of their own industry; that all persons are
equal and entitled to equal rights,
opportunities, and protection under the law;
and that all persons have corresponding
obligations to the people and to the State.
10 As we uphold summary judgment on several other grounds,
it is not necessary to address the Department's argument that Air
Carriers waived their right to claim reimbursement.
]]>
