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Alaska Child Support Enforcement Division v. Beans (9/4/98), 965 P 2d 725

     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, phone (907)
264-0608, fax (907) 264-0878.


OF REVENUE, CHILD SUPPORT     )    Supreme Court No. S-8322
                              )    Superior Court No.
               Appellant,     )    3AN-97-3329 CI
          v.                  )    
PAUL BEANS,                   )    O P I N I O N
               Appellee.      )    [No. 5030 - September 4, 1998]

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                      Dan A. Hensley, Judge.

          Appearances:  Diane L. Wendlandt, Assistant
Attorney General, Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellant.  Jim Kentch, Anchorage, for

          Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.

          COMPTON, Justice.

          The Child Support Enforcement Division (CSED) appeals the
superior court's determination that AS 25.27.246, which provides
for the suspension of delinquent child support obligors' driver's
licenses, is unconstitutional.  We affirm in part and reverse and
remand in part.
          Paul Beans is the father of Nathaniel Kokrine, born in
May 1991.  In 1993 CSED ordered Beans to pay $845 per month in
child support and established an arrearage of $15,377.
          In January 1996 CSED sent Beans a "Notice of Intent to
Suspend or Deny the Issuance or Renewal of Driver's License." 
Beans asked to enter a payment agreement with CSED.  CSED sent
Beans a proposed agreement, to which he did not respond.  In
March 1997 CSED issued a default decision finding Beans not in
substantial compliance with the support order.  In April Beans
moved the superior court to review CSED's decision.  In May the
superior court held a hearing at which the court expressed concerns
about the constitutionality of AS 25.27.246.  The superior court
appointed counsel to represent Beans pro bono and ordered counsel
to brief the constitutional issues potentially raised by
AS 25.27.246.  The court stayed further licensing action pending
resolution of the constitutional issues.
          In June Beans moved for summary judgment, arguing that
AS 25.27.246 violated his rights to substantive due process,
procedural due process, and equal protection of law.  The superior
court granted this motion.  It held that (1) the statute violated
Beans's substantive due process rights because it was not rational;
(2) the statute violated Beans's procedural due process rights
because it denied him a jury trial; and (3) the statute violated
Beans's equal protection rights because it did not contain a "best
efforts"defense like that in a similar statute dealing with
occupational licenses.  This appeal followed. [Fn. 1] 
          Alaska Statute 25.27.246 permits CSED to take adverse
action against a delinquent child support obligor's driver's
license.  It requires CSED to maintain a list of obligors who are
not in substantial compliance with support orders and to whom CSED
has sent a notice of arrearages at least sixty days before it
places them on the list.  See AS 25.27.246(a).  CSED must notify
each person on the list that their driver's license will be
suspended in 150 days and will not be reissued unless they obtain
a release from CSED.  See AS 25.27.246(b).
          Licensees may request review of their inclusion on the
list.  See AS 25.27.246(e)-(f).  CSED must release a licensee from
the list if any of the following conditions is met: (1) the
licensee is found to be in substantial compliance with the support
order; (2) the licensee is in substantial compliance with a payment
agreement negotiated with CSED; (3) the licensee obtains a judicial
finding of substantial compliance; or (4) CSED or judicial review
is not completed within the 150-day period before the licensee's
license is suspended, through no fault of the licensee.  SeeAS 25.27.246(f).
          Following administrative review, a licensee may request
judicial relief from CSED's decision.  See AS 25.27.246(i).  Alaska
Statute 25.27.246(i) limits the court's review to three questions:
"(1) whether there is a support order or a payment schedule on
arrearages; (2) whether the petitioner is the obligor covered by
the support order; and (3) whether the obligor is in substantial
compliance with the support order or payment schedule." 
          We review questions of constitutional law de novo.  See,
e.g., Lantz v. Lantz, 845 P.2d 429, 431 n.1 (Alaska 1993).  We will
"adopt the rule of law that is most persuasive in light of
precedent, reason, and policy."  Wright v. Black, 856 P.2d 477, 479
(Alaska 1993).
     A.   Alaska Statute 25.27.246 Does Not Violate Beans's Right
to Substantive Due Process.
          Article I, section seven of the Alaska Constitution
provides that "[n]o person shall be deprived of life, liberty, or
property, without due process of law."  Substantive due process, we
have explained,
          is denied when a legislative enactment has no
reasonable relationship to a legitimate governmental purpose.  It
is not a court's role to decide whether a particular statute or
ordinance is a wise one . . . .  The constitutional guarantee of
substantive due process assures only that a legislative body's
decision is not arbitrary but instead based on some rational

               . . . The party claiming a denial of
substantive due process has the burden of demonstrating that no
rational basis for the challenged legislation exists.  This burden
is a heavy one, for if any conceivable legitimate public policy for
the enactment is apparent on its face or is offered by those
defending the enactment, the opponents of the measure must disprove
the factual basis for such a justification.

Concerned Citizens of South Kenai Peninsula v. Kenai Peninsula
Borough, 527 P.2d 447, 452 (Alaska 1974) (footnote omitted).
          CSED clearly articulates a legitimate public policy for
targeting the driver's licenses of delinquent obligors:  the State
needs to collect child support from all obligors, whether they are
subject to income withholding or not.  The threat of driver's
license suspension is a particularly effective enforcement tool
against those obligors who resist income withholding.  Beans has
not disproved this contention, as required by Concerned Citizens of
South Kenai Peninsula. 

          Beans first argues that license revocation makes it more
difficult for an obligor to earn the money to pay child support.
Because this effect is contradictory to the State's asserted desire
to collect child support, argues Beans, the statute is arbitrary.
But Beans misses the point of the statute: an obligor who is
willing to pay child support will not lose his or her license.  As
soon as an obligor enters into and begins to comply with a payment
agreement negotiated under AS 25.27.246(f)(1) then, under
subsection (f), CSED must release the obligor's license. 
          Beans next suggests that the lack of relationship between
the sanction (forfeiting a driver's license) and Beans's underlying
conduct makes AS 25.27.246 arbitrary.  This argument focuses on the
wrong relationship entirely.  Whether there is a direct
relationship between Beans's underlying conduct and the potential
sanction has little or nothing to do with whether the sanction is
particularly effective against a certain class of delinquent
obligors.  It is this particular effectiveness that makes the
sanction of losing a driver's license rational.  
          Beans argues that, because CSED only pursues licensing
action against delinquent obligors whose former spouses have used
CSED's collection services, the authorizing statute has no rational
basis.  Beans provides no authority for the proposition that this
method of selection renders a statute unconstitutional.  CSED
responds that "[a] statute is not arbitrary . . . merely because
the enforcement tool provided by that statute is used only in those
cases in which the state's enforcement mechanism has been
triggered."  CSED's position is more persuasive.  It is not
irrational to limit CSED's enforcement efforts to cases in which
CSED is already implicated or in which its aid is requested.  
          Finally, Beans argues that the statute does not
distinguish between obligors who are avoiding payment and obligors
who simply cannot pay.  It is true that the statute does not
explicitly draw that distinction, and we agree that such a
distinction is necessary for the statute to satisfy the
requirements of substantive due process.  The statute, however,
provides CSED with the flexibility to draw a distinction between
obligors who are unwilling to pay and obligors who are unable to
pay, as follows:  CSED must release an obligor's license if the
obligor is in substantial compliance with a payment schedule
negotiated with CSED under subsection (f)(1).  The statute does not
circumscribe CSED's authority to negotiate such a payment schedule. 
In order to comport with the requirements of due process, CSED is
simply required to exercise that authority to negotiate a payment
schedule on arrearages that is within an obligor's ability to pay.
[Fn. 2]
          This court has explained that "[a] statute may be
unconstitutional either on its face or as applied.  A statute is
facially unconstitutional if 'no set of circumstances exists under
which the Act would be valid.'"  Javed v. State, Dep't of Public
Safety, 921 P.2d 620, 625 (Alaska 1996) (quoting United States v.
Salerno, 481 U.S. 739, 745 (1987) and citing Gilmore v. Alaska
Workers' Comp. Bd., 882 P.2d 922, 929 n.17 (Alaska 1994)).
Furthermore, AS 01.10.030 requires that any statute that does not
contain a severability clause (which AS 25.27.246 does not appear
to contain) be construed as though it contained the following
               If any provision of this Act, or the
application thereof to any person or circumstance is held invalid,
the remainder of this Act and the application to other persons or
circumstances shall not be affected thereby.

          If AS 25.27.246 were applied so as to take away the
license of an obligor who was unable to pay child support, it would
be unconstitutional as applied in that case.  At that point there
would be no rational connection between the deprivation of the
license and the State's goal of collecting child support.  CSED's
flexibility in negotiating payment plans, however, ensures that the
statute need not be applied in such a manner; it is not
unconstitutional on its face.  Beans does not allege that CSED
applied the statute to Beans in such a manner.
          We note that AS 25.27.246(i) purports to limit the
grounds on which judicial relief may be requested, and does not
explicitly include inability to pay.  This is, of course,
ineffective to prevent a litigant from challenging an
unconstitutional application of the statute.  Subsection (i) cannot
be applied to prevent a litigant from seeking judicial relief based
on inability to pay.  With that limitation, subsection (i) passes
constitutional muster.  We read out of subsection (i) only the
language purporting to limit judicial review to the determination
of the three enumerated issues.  In seeking relief on the basis of
inability to pay, the obligor will bear the burden of proving his
or her inability to pay by a preponderance of the evidence.  See
Johansen v. State, 491 P.2d 759, 766-67 (Alaska 1971) (placing this
burden on the obligor in an analogous case involving civil
     B.   Alaska Statute 25.27.246 Does Not Violate Beans's Right
to Equal Protection.

          Alaska Statute 25.27.244 provides for the suspension of
occupational licenses for failure to pay child support.  Alaska
Statutes 25.27.244 and 25.27.246 both provide that obligors may
avoid losing the licenses at issue if they are in "substantial
compliance"with a support order or payment schedule.  Alaska
Statute 25.27.244(s)(6)(C) [Fn. 3] (Supp. 1997) includes in the
definition of "substantial compliance"obligors who are making
their "best efforts possible under the . . . circumstances."  The
analogous subsection of AS 25.27.246 (the statute at issue in the
instant case) does not include such a provision.  Beans argues
that, because of this distinction, AS 25.27.246 violates Alaska's
Equal Protection Clause.  
          We have determined that AS 25.27.246 would be
unconstitutional as applied if used to revoke the license of an
individual incapable of paying the demanded support.  That
determination moots this issue.  CSED may not require, in payment-
schedule negotiations, payments beyond the "best efforts"of the
obligor. [Fn. 4]
     C.   Alaska Statute 25.27.246 Does Not Unconstitutionally Deny
Beans the Right to a Jury Trial.

          In disputing whether obligors are entitled to have a jury
decide their ability to pay, Beans and CSED focus on the character
of the license-revocation sanction.  Beans argues that suspending
his license until he complies with a support order or payment plan
is punitive, and thus criminal in nature, and that the Alaska
Constitution therefore entitles him to a jury trial. [Fn. 5]  CSED
argues that the sanction is remedial, and thus civil in nature, so
that Beans is not entitled to a jury trial.
          In Johansen v. State, 491 P.2d 759, 762 67 (Alaska 1971),
we decided whether imprisonment for "civil"contempt, to coerce an
obligor to comply with a child support order, triggered a right to
a jury trial, and other criminal-procedural protections, on the
issue of ability to pay.  After analyzing the history and theory of
contempt, we concluded that "traditional contempt doctrine cannot
satisfactorily answer whether child support contempt hearings are
'criminal' or 'civil' in nature."  Id. at 767.  Treating the case
as a hybrid, we held that imprisonment to coerce payment triggers
a right to a jury trial on ability to pay, but does not trigger any
other criminal-procedural protections.  See id. at 766 67.  We did
not rely on labels, but "instead looked to a balancing of the
parties' interests to determine what procedure [to] follow[,] . . .
draw[ing] from both sides of the law."  Id. at 767.  We said that
we had no doubt that "further procedural questions will arise in
future cases,"and promised to "continue to weigh the interests as
we have done here."  Id. [Fn. 6]  This is obviously such a case,
and so we must focus on the real interests affected by the
procedural choice it presents.
          It is important to remember that, as we discussed in Part
V.A above, the Alaska Constitution requires that an obligor who
cannot negotiate a feasible payment schedule with CSED, and who
insists that CSED is demanding higher payments than he or she can
really make, have the right to have a judge review the issue of
ability to pay.  The question that Beans's jury-trial claim thus
raises is whether our constitution -- as precedent, policy, and
reason guide us to interpret it -- requires not only judicial
review of ability to pay, but the further safeguard of the right to
invoke a jury's judgment to settle the issue.
          Beans makes a strong argument from precedent that it
does.  He asks us to combine the rule of Johansen -- that a threat
of imprisonment to coerce support payments entitles an obligor to
have a jury decide whether he or she really can afford to pay --
with our definition of a "criminal prosecution"for purposes of the
right to a jury trial.  See Baker v. City of Fairbanks, 471 P.2d
386, 401 02 & nn.28 29 (Alaska 1970).  That definition is not
limited to proceedings that may yield incarceration or heavy fines;
it also includes those that may result in "the loss of a valuable
license, such as a driver's license."  Id. at 402.  Beans's
argument has obvious force:  one has a right to a jury trial before
being imprisoned to coerce payment, and we have treated loss of a
driver's license the same as imprisonment for purposes of the right
to jury trial in criminal prosecutions.  It might be formalistic to
deem the proceeding here "civil"or "administrative,"rather than
"criminal,"and therefore deny Beans the right to a jury trial.
          While we would need to extend Baker and Johansen only
slightly to encompass this case, we do not think that the
constitution requires that step.  The sanction here substantively
differs from those in Baker and Johansen.  The differences make
judicial review a constitutionally adequate safeguard in those
cases, hopefully few, in which an obligor believes that CSED is
insisting on a payment schedule beyond his or her ability to pay.
          Unlike Mr. Johansen, obligors in Beans's position only
face license suspension, not imprisonment.  And they differ from
people facing license revocations in "criminal prosecutions,"as
envisioned in Baker, in three ways.  First, they do not face the
collateral consequences of a formally "criminal"conviction --
i.e., the stigma of being labeled a "criminal,"and the
possibilities of trouble in finding employment or perhaps credit. 
See Baker, 471 P.2d at 395 96. [Fn. 7]  Second, they face the loss
of their licenses only to coerce them to meet an obligation, not to
punish them for past misconduct. [Fn. 8]  The distinction between
coercive and punitive aims is not metaphysical: unlike someone
whose license a court is about to revoke in order to punish them
for past misconduct, Beans can still do something about his
impending fate.  He can convince either CSED or a judge that some
specific amount is as much as he can reasonably pay, and then
promise to begin paying that amount.  Third, unlike criminal or
punitive civil cases, child-support proceedings do not only
vindicate a general social interest in law enforcement.  Granting
additional safeguards to delinquent obligors also risks impairing
the compelling practical and moral interests of the specific
individuals -- i.e., children and custodial parents -- to whom the
obligors have allegedly not fulfilled their duty.
          The sanction that delinquent obligors face under
AS 25.27.246 is not as severe as that in Johansen.  It has fewer
collateral consequences and is less inevitable than that in Baker. 
Of course, the contemnor in Johansen could also have avoided prison
by paying.  Although we held that Johansen had a right to a jury
trial, we denied him other criminal-procedural protections.  See
Johansen, 491 P.2d at 766.  In so doing, however, we did not rely
uncritically on the classic rationale that he did not need those
protections because he could simply avoid imprisonment by paying. 
Indeed, we noted that circular reasoning is a "serious problem
inherent in the civil contempt [i.e., coercive-not-punitive]
doctrine."  Id. at 765.  That doctrine rests on one key belief:
          [C]ivil contemnors do not need criminal
procedural safeguards since they are not placed under the criminal
sanction of a fixed sentence; that is, they "carry the keys of
their prison in their own pockets."  However, this may not be true: 

               . . . The contemnor may . . . be
incapable of [paying], yet the determination of [that] fact[] is
made without criminal safeguards even though imprisonment hinges on
the outcome of that determination.

Id. (quoting In re Nevitt, 117 F. 448, 461 (8th Cir. 1902), and
Comment, The Coercive Function of Civil Contempt, 33 U. Chi. L.
Rev. 120, 125 (1965) [hereinafter Comment, Coercive Function])
(alterations added).
          The circularity problem is as follows.  We are choosing
who should ultimately decide whether an obligor can pay -- judge or
jury.  If an obligor in fact cannot pay, then license revocation is
not in any meaningful way "coercive."  Whatever CSED's intent, you
cannot "coerce"blood from a stone.  To rely on the coercive-not-
punitive rationale is partly to presume the answer to the ability-
to-pay question while purporting only to decide who should answer
that question.  It is like saying, "presuming that you are able to
pay, the sanction is only coercive, and therefore you do not need
the safeguard of a jury to decide whether you are able to pay." 
This danger of circular reasoning led us in Johansen to note that 
          [a] better rationale for denying procedural
safeguards rests on the position of the plaintiff.  In criminal
contempt . . . the granting of procedural safeguards does not
conflict with the rights of any individual.  "But granting
additional safeguards to the defendant in a civil contempt
proceeding is directly opposed to the interests of the complainant
to whom the defendant owes a duty by reason of a prior judicial

Id. (quoting Comment, Coercive Function, at 125). [Fn. 9]
          Focusing instead on the undeniably weighty interests of
obligors' children, and those childrens' custodial parents, we
conclude that the differences between this sanction and the
sanctions in Johansen and Baker tip the scale against a right to a
jury trial.  Beans's right to have a judge review CSED's
determination that it is not trying to coerce him to pay more than
he truly can pay is constitutionally sufficient.  In the classic
justification for coercive imprisonment, contemnors "carry the keys
of their prison in their own pockets."  In re Nevitt, 117 F. at 461
(quoted in Johansen, 491 P.2d at 765).  CSED believes that obligors
like Beans carry the keys to their cars in their own pockets. 
Since we are only concerned with the keys to a car, not to a prison
cell, it is enough that obligors can have a judge review their
claims that they do not in fact possess those keys.
          We AFFIRM only to the extent that we find AS 25.27.246(i)
to be ineffective to prevent a litigant from seeking judicial
relief based on inability to pay.  Otherwise, we REVERSE and REMAND
for further proceedings consistent with this opinion.


Footnote 1:

     The court awarded Beans attorney's fees.  Both parties have
disputed aspects of this award on appeal but, because we reverse on
the merits, Beans is no longer the prevailing party, and we thus
reverse the fee award as a matter of course without needing to
address the parties' arguments regarding the merits of that award.

Footnote 2:

     We note that AS 25.27.246(e) authorizes and requires CSED to
establish review procedures to "allow a licensee to have the
underlying arrearages and relevant defenses investigated, . . . or
to provide a licensee with assistance in the establishment of a
payment schedule on arrearages if the circumstances warrant."  As
we read ability to pay into this section as a constitutionally
required defense, subsection (e) necessarily applies to this

          We also note that any current court-ordered support was
presumably within the obligor's ability to pay when ordered under
Alaska Civil Rule 90.3.  It is only arrearages that may, in
cumulation with current payments, be beyond the ability of the
obligor to pay.  Of course, if the obligor's circumstances change,
such that a prospective modification of an outstanding support
order would be appropriate, no provision in the statute would bar
the court from staying licensing action pending a decision on a
modification motion.

Footnote 3:

     The legislature added this "best efforts"provision to
subsection (q)(6), effective July 1, 1997. See Ch. 87, sec. 117,
SLA 1997.  It was then called AS 25.27.244(q)(6)(C).  This is the
numbering to which the superior court referred in its August 7,
1997, summary judgment order.  The 1997 amendments also added two
new subsections to AS 25.27.244 concerning commercial fishing
licenses, effective January 1, 1998.  See Ch. 87, sec. 118,
SLA 1997. 
The revisor of statutes relettered section .244 so that these new
subsections became subsections (q) and (r), and the definitions
were relettered from (q) to (s), so that the definition of
"substantial compliance"at (q)(6) became (s)(6), effective January
1, 1998.  See AS 25.27.244, Revisor's notes, at 256 (Supp. 1997). 
The various 1997 amendments, finally, automatically expire on July
1, 1999.  See Ch. 87, sec. 148(c), SLA 1997.  Unless the
acts further, the "best efforts"provision, now
AS 25.27.244(s)(6)(C), will be repealed on that date, and the
definition of "substantial compliance"that was relettered as
AS 25.27.244(s)(6) on January 1, 1998, will return to being
lettered AS 25.27.244(q)(6).

Footnote 4:

     We note that the language concerning the "best efforts"
defense contained in AS 25.27.244(s)(6)(C) (Supp. 1997) is subject
to a delayed amendment, effective July 1, 1999, that would
eliminate that language.  See supra note 3.  Our decision today,
however, that the constitution requires that judicial review of an
obligor's ability to pay be available prior to a license
revocation, is and will remain equally applicable in the context of
a professional-license revocation.

Footnote 5:

     Article I, section 11 of Alaska's Constitution provides in
part that "[i]n all criminal prosecutions, the accused shall have
the right to a . . . trial[] by an impartial jury."

Footnote 6:

     See also Champion v. State, Dep't of Pub. Safety, 721 P.2d
131, 133 (Alaska 1986) ("The fact that [an administrative license-
revocation] proceeding is civil is not determinative of the
applicability of [procedural] protections [created for criminal
drunk-driving prosecutions].  We have avoided relying on
formalistic categorizations of proceedings as 'criminal' and
'civil' when determining if strict due process safeguards are

Footnote 7:

     See also State v. O'Neill Investigations, Inc., 609 P.2d 520,
537 (Alaska 1980) (holding that large fines did not make a
nominally civil enforcement action a "criminal prosecution"under
Baker in part because the defendant firm did not face the
collateral consequences of a criminal conviction).

Footnote 8:

     We did not specify in Baker that, for potential loss of a
license to make a proceeding a "criminal prosecution,"the
revocation must serve to punish the licensee for past misconduct. 
But that is the implicit sine qua non of a "criminal prosecution." 
We also noted in Baker that the right to a jury trial does not
extend to "administrative proceedings where lawful criteria other
than criminality are a proper concern in protecting public welfare
and safety, as the basis of revocation . . . [is] that the
individual is not fit to be licensed, apart from considerations
only of guilt or innocence of crime."  Baker v. City of Fairbanks,
471 P.2d 386, 402 n.28 (Alaska 1970).  

          The revocation here has nothing to do with whether Beans
is fit to drive, or threatens public welfare and safety.  It serves
a different end than either a classic "criminal"revocation (i.e.,
punishment), or a fitness-based administrative revocation (i.e.,
public safety).  Its aim is to coerce future performance of an
obligation unrelated to driving.  Its purpose falls between that
for which Baker expressly requires a jury trial, and that for which
Baker expressly states that a jury trial is not required, and so we
must look beyond Baker to resolve this appeal.

Footnote 9:

     The coercive-not-punitive rationale, however, is not wholly
circular.  There is, hypothetically, some set of cases in which a
judge will uphold CSED's demands where a jury would not.  In those
cases, the option of meeting CSED's demands by increasing one's
payments, or one's ability to pay, will not be impossible, like
legally escaping a prison sentence based on a valid conviction.  It
will simply require substantial effort -- more effort than CSED
could have convinced a jury that it was reasonable or fair to
demand.  Although the coercive-not-punitive rationale thus has some
substance, we prefer to emphasize the interests of obligors'
children and those children's custodial parents.