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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Eagle v. State, Dept. of Revenue (03/02/2007) sp-6105
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| PETER EAGLE, | ) |
| ) Supreme Court No. S- 12004 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-03-14150 CI |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| DEPARTMENT OF REVENUE, | ) |
| ) | |
| Appellee. | ) No. 6105 - March 2, 2007 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Morgan Christen, Judge.
Appearances: Peter Eagle, pro se, Anchorage.
Chris C. Poag, Assistant Attorney General,
David W. M rquez, Attorney General, Juneau,
for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
MATTHEWS, Justice.
I. INTRODUCTION
Peter Eagle, a former Navy servicemember, claims that
he was a resident of Alaska for purposes of receiving a 2003
Permanent Fund Dividend (PFD). The Permanent Fund Dividend
Division of the Department of Revenue (the Division) rejected his
application because he failed to rebut the statutory presumption
that his absence from Alaska for more than five years indicated
an intent not to return to the state. Eagle primarily argues
that the Federal Soldiers and Sailors Civil Relief Act (the
SSCRA) preempts Alaskan law by preserving his residency for the
purpose of PFD eligibility. He also argues that the Alaska PFD
residency requirements violate his right to equal protection. We
hold that the SSCRA does not preempt the PFDs residency
requirements and that Eagle waived any equal protection arguments
by failing to raise them below. We therefore affirm the superior
courts judgment.
II. FACTS AND PROCEEDINGS
Peter Eagle lived in Juneau from kindergarten until he
graduated from high school in 1982. After high school, he
attended college in Oregon but spent his summers in Alaska. In
1986 Eagle joined the Navy and spent the next sixteen years
outside Alaska. During his sixteen years of active service,
Eagle at most visited Alaska on five occasions, making two-week
trips in 1988, 1989, 1991, 1994, and 1999. From 1986 to 1994,
Eagle received PFDs under the active duty allowable absence of AS
43.23.008(a)(3).1 In 1995 the Division rejected Eagles PFD
application, finding that he had failed to overcome a presumption
that after five years of absence from Alaska, he was no longer a
resident. Eagle did not appeal the decision and did not apply
for a PFD from 1996 to 2002. He claims that the burdens of his
active duty Naval service made it infeasible for him to do so.
In 2002 the Navy discharged Eagle, and in October he
returned to Alaska. He applied for a PFD in 2003. The Division
denied his application on the grounds that he had lost his state
residency before 2002 and had been absent during that year for
more than 180 days.2 At Eagles request, the Division conducted a
formal hearing at which Eagle argued that the SSCRA protected his
status as an Alaska resident for purposes of the PFD.3 The
Division rejected his argument that the SSCRA applied. It then
determined that he was ineligible for a 2003 PFD, giving
particular weight to 15 AAC 23.163(h)(2), which directs courts to
presume that an applicant does not have an intent to return to
Alaska if the applicant has been physically present in Alaska for
less than a total of thirty days in the past five years.
Eagle subsequently appealed the Divisions decision to
the superior court, again arguing that the SSCRA preserved his
residential status. The superior court affirmed the Divisions
decision and this appeal followed. Eagle asks that this court
(1) reverse the superior courts decision by finding that he is
eligible for a 2003 PFD, (2) strike down 15 AAC 23.163(f), which
exempts congressmen and their staffers from the five-year-absence
presumption, as discriminatory and unlawful, and (3) reinstate
Eagles eligibility for the 1995-2002 PFDs.
Eagle has represented himself in all stages of this
case.
III. DISCUSSION
We review the merits of an administrative determination
independently.4 Eagle does not dispute any facts. Rather, he
challenges the constitutionality and wisdom of the Divisions
scheme for determining Alaskan residency. We apply a
substitution of judgment standard to issues of law not within an
agencys expertise, such as statutory interpretation, but do not
substitute [our] judgment for that of the agency with respect to
the efficacy of [a] regulation nor review the wisdom of a
particular regulation. 5 Constitutional issues present questions
of law, which are subject to independent review.6
A. The SSCRA Does Not Preempt Alaskas PFD Residency
Requirements with Respect to Servicemembers.
Eagle argues that provisions of the SSCRA on the
residence and domicile of those in the military protect his
status as an Alaska resident for purposes of PFD distribution.
He relies on two sections of the SSCRA to support his argument:
section 571, which protects servicemembers residency for tax
purposes,7 and section 595, which protects servicemembers
residency for voting purposes.8 Eagles argument seems to be that
these provisions establish that a servicemember retains his
residence or domicile for all purposes, not just taxation or
voting; thus, Alaska wrongfully found that he was not an eligible
resident of Alaska for PFD purposes. Eagle also points to a U.S.
Government payroll form entitled the State of Legal Residence
Certificate to support the proposition that ones domicile and
residence are the same and that a person can have only one
domicile.9 He interprets this form to hold that the burden of
showing that a servicemembers residency has changed rests on the
challenging party, in this case, the State.
Eagle misunderstands the narrow scope of federal
preemption of state law in our system of dual sovereignty. We
recently outlined the jurisprudence on federal preemption in
State v. Dupier:
Under the Supremacy Clause of the federal
constitution, state laws that interfere with
federal laws are invalid. Federal laws can
preempt state laws in the following three
ways: (1) if Congress expressly declares that
state law is preempted; (2) if Congress
demonstrates an intent to occupy a field
exclusively; and (3) if there is an actual
conflict between federal and state law.
Preemption may be either express or implied.
When considering preemption, courts start
with the assumption that the historic police
powers of the states were not to be
superseded by the Federal Act unless that was
the clear and manifest purpose of
Congress.[10]
We conclude that it was not the clear and manifest purpose of
Congress in enacting the SSCRA to preempt state regulations
affecting the determination of residency for the purpose of an
economic benefit such as Alaskas PFD.
There is no indication in the SSCRA that Congress
wished to preempt state determination of servicemembers residence
beyond the narrow instances of taxation and voting. Section 571
is meant to prevent servicemembers from being taxed in both their
home state and the location where the military requires them to
serve.11 Although one might argue that the PFD falls within the
rubric of taxation, we have described the PFD as an economic
benefit,12 because money is paid by the government to an
individual. Taxation, on the other hand, is an economic
detriment because the flow of money is in the opposite direction.
Of course, under some tax systems tax credits might result in an
overall negative tax rate in favor of some individuals. But the
difference between such cases and the PFD is that tax credits are
directly part of a government revenue-raising program, and the
PFD is not.
Any preemptive effect section 595 has is limited by its
own language to the purposes of voting for any Federal office . .
. or a State or local office.13 There are no other provisions of
the SSCRA that similarly protect servicemembers residency for
other purposes. Nor is Congresss regulation of state residency
for the purposes of taxation and voting so pervasive as to
conclude that it meant for federal law to occupy the entire field
of state residency determination regarding servicemembers.14
Instead, the fact that the SSCRA singles out only two specific
instances in which it applies to the residency of servicemembers
indicates that it was meant to apply only to those instances.
Eagles reliance on the State of Legal Residence
Certificate is also misplaced. This document is not federal law.15
Its purpose is to help servicemembers declare their legal
residence for the exclusive purpose of state income taxation.16
As such, it simply works in conjunction with section 571 to
prevent servicemembers from being taxed in both their home state
and the state of their military residence.
Last, there is no conflict between the SSCRA and
Alaskas residency requirements for PFD distribution. While it is
understandable how some of the language in the SSCRA and the
State of Legal Residence Certificate could lead a person in
Eagles position to believe that all facets of his Alaskan
residency would be preserved while he served in the Navy, this
turns out not to be the case. As discussed above, the relevant
provisions of the SSCRA protect a servicemembers residency only
for purposes of taxation and voting. Alaskas PFD is neither; it
is an economic benefit that Alaska residents are entitled to
receive if they meet certain eligibility requirements.17 We have
repeatedly stated that the residency requirement for PFD
eligibility may differ from other residency requirements. 18
Therefore, Eagle could be a resident of Alaska for purposes of
taxation and voting under the SSCRA, but not a resident of Alaska
for purposes of PFD eligibility.
B. Eagle Waived His Equal Protection Argument by Not
Raising It Below.
In his appeal before this court, Eagle also asks that
this court [s]trike down 15 AAC 23.163(f) as discriminatory and
unlawful. 15 AAC 23.163 covers allowable absences for PFD
eligibility. 15 AAC 23.163(f) states that applicants who have
claimed an allowable absence under AS 43.23.008 for more than
five consecutive years are presumed not to have the intent to
return to Alaska. To rebut this presumption, the applicant must
provide documentation that demonstrates to the departments
satisfaction an intent at all times during the absence or
absences to return to Alaska and remain indefinitely in Alaska.19
Eagle objects to the fact that 15 AAC 23.163(f) expressly exempts
members of the U.S. Congress and their staff from its five-year
presumption. He seems to make two basic kinds of arguments
against this regulation: that the congressional exemption
violates his right to equal protection and that the absence of a
similar exemption for servicemembers is bad public policy.
The State argues that Eagle waived his equal protection
argument by not raising it at the administrative or superior
court level. Because this issue was not properly raised, the
State argues, the record was not developed at any level and the
superior court did not address it in its order. Eagle claims
that he brought up the disparity in treatment of PFD eligibility
between members of Congress and military servicemembers both
during the formal hearing before the Division and during oral
proceedings before the superior court.20
This court will not consider on appeal new arguments
that (1) depend on new or controverted facts; (2) are not
closely related to appellants arguments at trial; and (3) could
not have been gleaned from the pleadings, unless the new issue
raised establishes plain error.21 Because Eagle is representing
himself, his briefs and pleadings should be held to less
stringent standards than those of lawyers.22
We find only two instances in the record in which Eagle
makes statements that could in any way relate to his equal
protection argument on appeal: once in his reply brief to the
superior court and once in oral argument before the superior
court. In his reply brief, Eagle very briefly mentions that
members of Congress and their staffers are excepted from the five-
year presumption. But this was in response to the States
argument that the Divisions decision denying PFD eligibility was
supported by 15 AAC 23.163(g)(6), which considers whether the
applicants absence was due to a career choice. Eagle appeared to
have been offended by the States claim that service in the
military was a career choice like other civilian career choices
and offered the congressional exception as an example of the
States callous attitude toward military service. In oral
argument before the superior court, Eagle mentioned the
congressional exception as a side note to his argument that the
State had disregarded the supremacy of federal law. Again, Eagle
used the congressional exception as an example of the States
disregard for the nature of military service.
Even liberally construed, neither instance provides any
indication that Eagle was making or would make an equal
protection claim. Rather, Eagle cursorily raised the difference
in treatment between military servicemembers and members of
Congress for illustrative effect in his preemption argument.
Moreover, Eagles equal protection argument is not closely related
to the federal preemption argument based on the SSCRA that he
made in his administrative appeals and before the superior court.
Eagles equal protection argument requires a balancing of the
States purpose in promulgating 15 AAC 23.163(f) against the
individual interest impaired by this regulation,23 whereas his
preemption argument requires a determination of Congresss intent
in enacting federal legislation.24 Eagle thus waived his equal
protection argument by failing to raise it below.
To the extent that Eagle is simply arguing that 15 AAC
23.163(f) is bad policy, he has chosen the wrong forum to air his
grievances. We have stated that in administrative regulation
cases like this that [w]e do not . . . review the wisdom of a
particular regulation. 25 This court is empowered to strike down
regulations that violate the Alaska or Federal Constitution.26 It
is not the province of this court to determine whether or not a
particular law or regulation is based on good policy.27 The
superior court correctly concluded that Eagles policy arguments
concerning the scheme of determining residence for PFD
eligibility are properly directed to the legislature, not the
court.
IV. CONCLUSION
While Alaska owes Eagle a debt of gratitude for his
naval service to the nation, it does not owe him a PFD for 2003.
The Divisions determination of military servicemembers residency
for the purpose of PFD distribution is not preempted by federal
law. The provisions of the SSCRA on which Eagle relies protect
servicemembers residency only in regard to taxation and voting.
Congress has not indicated that a servicemembers residency should
be otherwise protected by federal law. We also conclude that
Eagle waived any equal protection argument regarding 15 AAC
23.163(f) by failing to raise it below. We therefore AFFIRM the
superior courts judgment.
_______________________________
1 AS 43.23.008(a)(3) provides: [A]n otherwise eligible
individual who is absent from the state during the qualifying
year remains eligible for a current year permanent fund dividend
if the individual was absent . . . serving on active duty as a
member of the armed forces of the United States . . . .
2 AS 43.23.005(a)(3) requires that an applicant have been
a resident for the entire qualifying year to be eligible for a
PFD, which in this case meant that Eagle had to have been a
resident of Alaska for all of 2002 (the qualifying year) to be
eligible for a 2003 PFD. 15 Alaska Administrative Code (AAC)
23.163(b) (2003) states that applicants who are absent from
Alaska for more than 180 days are not eligible if they were not a
resident for at least 180 days before departure from Alaska.
Because Eagle returned to Alaska in October 2002, he was not a
resident during that qualifying year under 15 AAC 23.163(b) and
thus was ineligible for a 2003 PFD.
3 Soldiers and Sailors Civil Relief Act (SSCRA), 50
U.S.C. app. 501-96 (2003) (protecting the residency of
servicemembers for tax and voting purposes).
4 iginal) (quoting Church v. State, Dept of Revenue, 973 P
.2d 1125, 1127 (Alaska 1999)).Laidlaw Transit, Inc. v. Anch
orage Sch. Dist., 118 P.3
5 Anderson, 26 P.3d at 1109 (alteration in original)
(quoting Church v. State, Dept of Revenue, 973 P.2d 1125, 1127
(Alaska 1999)).
6 Laidlaw Transit, Inc. v. Anchorage Sch. Dist., 118 P.3d
1018, 1023 (Alaska 2005).
7 50 U.S.C. app. 571 provides: A servicemember shall
neither lose nor acquire a residence or domicile for purposes of
taxation with respect to the person, personal property, or income
of the servicemember by reason of being absent or present in any
tax jurisdiction of the United States solely in compliance with
military orders.
8 50 U.S.C. app. 595 provides:
For the purposes of voting for any
Federal office . . . or a State or local
office, a person who is absent from a State
in compliance with military or naval orders
shall not, solely by reason of that absence
(1) be deemed to have lost a residence
or domicile in that State, without
regard to whether or not the person
intends to return to that State;
(2) be deemed to have acquired a
residence or domicile in any other
State; or
(3) be deemed to have become a resident
in or a resident of any other State.
9 State of Legal Residence Certificate,
http://dcp.psc.gov/PDF_docs/dd2058.pdf (last visited Nov. 7,
2006).
10 118 P.3d 1039, 1049 (Alaska 2005) (citations and
quotations omitted); see also English v. Gen. Elec. Co., 496 U.S.
72, 78-79 (1990) (discussing the same three ways in which federal
laws can preempt state laws).
11 E.g., Sullivan v. United States, 395 U.S. 169, 180
(1969) (holding that this provision was enacted . . . to prevent
multiple State taxation of the property) (citations and
quotations omitted); California v. Buzard, 382 U.S. 386, 393
(1966) (holding that this provisions purpose in broadly freeing
the nonresident serviceman from the obligation to pay property
and income taxes was to relieve him of the burden of supporting
the governments of the States where he was present solely in
compliance with military orders); United States v. County of
Champaign, Ill., 525 F.2d 374, 377 (7th Cir. 1975) (The statute
was enacted to protect servicemen from the risk of double
taxation occasioned by their temporary duty in a state other than
their domicile.).
12 State, Dept of Revenue v. Andrade, 23 P.3d 58, 71
(Alaska 2001).
13 50 U.S.C. app. 595. This provision was added in 2003.
14 Cf. Hines v. Davidowitz, 312 U.S. 52, 69-74 (1941)
(holding that the extensive federal regulation in the area of
immigration preempted a Pennsylvania law requiring alien
registration).
15 The Supremacy Clause declares that the Constitution,
and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made,
under the Authority of the United States, shall be the supreme
Law of the Land. U.S. Const. art. VI, cl. 2.
16 The State of Legal Residence Certificate, see supra
note 9, states in relevant part:
The purpose of this certificate is to
obtain information with respect to your legal
residence/domicile for the purpose of
determining the State for which income taxes
are to be withheld from your wages as defined
by Section 3401(a) of the Internal Revenue
Code of 1954. . . . The Soldiers and Sailors
Civil Relief Act protects your military pay
from the income taxes of the State in which
you reside by reason of military orders
unless that is also your legal residence/
domicile.
17 Andrade, 23 P.3d at 71.
18 Id. at 71-72 (quoting Church v. State, Dept of Revenue,
973 P.2d 1125, 1129 (Alaska 1999)).
19 15 AAC 23.163(f).
20 The record does not contain Eagles arguments during his
formal hearing before the Division.
21 Price v. Eastham, 128 P.3d 725, 731 (2006) (citations
and quotations omitted).
22 Id. at 731-32.
23 See Malabed v. N. Slope Borough, 70 P.3d 416, 421
(Alaska 2003) (describing the three-part test used in equal
protection cases: [F]irst, we determine the weight of the
individual interest impaired by the [law at issue]; second, we
examine the importance of the purposes underlying the governments
action; and third, we evaluate the means employed to further
those goals to determine the closeness of the means-to-end fit.).
24 See supra text accompanying note 10.
25 Anderson v. State, Dept of Revenue, 26 P.3d 1106, 1109
(Alaska 2001) (quoting Church v. State, Dept of Revenue, 973 P.2d
1125, 1127 (Alaska 1999)).
26 See, e.g., State, Dept of Health & Soc. Servs. v.
Planned Parenthood of Alaska, Inc., 28 P.3d 904, 915 (Alaska
2001) (Without in any way attempting to invade the rightful
province of the Legislature to conduct its own business, we have
a duty, certainly since Marbury v. Madison, to adjudicate a claim
that a law and the actions undertaken pursuant to that law
conflict with the requirements of the Constitution.) (citations
and quotations omitted).
27 See, e.g., State v. Campbell, 536 P.2d 105, 111
(Alaska 1975) (holding that the constitutions separation of
powers prohibits this court from enacting legislation or
redrafting defective statutes).
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