| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Heller v. State, Dept. of Revenue (12/6/2013) sp-6849
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, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
RICHARD HELLER, )
) Supreme Court No. S-13551
Appellant, )
) Superior Court No. 4FA-08-01193 CI
v. )
) O P I N I O N
STATE OF ALASKA, )
DEPARTMENT OF REVENUE, ) No. 6849 - December 6, 2013
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Fairbanks, Douglas Blankenship,
Judge.
Appearances: Andy Harrington, Alaska Legal Services
Corporation, Fairbanks, and James J. Davis, Jr., Alaska Legal
Services Corporation, Anchorage, for Appellant. Michele
Kane, Assistant Attorney General, Juneau, and Ruth
Bottstein, Assistant Attorney General, Anchorage, and Daniel
S. Sullivan, Attorney General, Juneau, for Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Stowers,
and Maassen, Justices.
CARPENETI, Chief Justice.
WINFREE, Justice, with whom STOWERS, Justice, joins,
dissenting in part.
----------------------- Page 2-----------------------
I. INTRODUCTION
A member of the military moved to a new post in Alaska in June 2005.
Two months later, he was deployed to Iraq. After 16 months of service in Iraq, he
returned to Alaska in December of 2006. Shortly thereafter, he applied for the 2007
Permanent Fund Dividend (PFD), which is paid in recognition of the applicant's
eligibility during 2006. The Department of Revenue denied his application. The service
member filed an informal appeal and later a formal appeal with the Department, both of
which were denied. The superior court affirmed the denial, concluding that the relevant
statute required him to reside in Alaska for six months before claiming an allowable
absence for military service and that the statute did not violate equal protection under the
U.S. and Alaska Constitutions. The service member appeals. Because he was not
eligible for the 2007 PFD under AS 43.23.008, and this statute is consistent with the
requirements of the U.S. and Alaska Constitutions, we affirm the judgment of the
superior court.
II. FACTS AND PROCEEDINGS
In June 2005 the U.S. Army assigned Richard Heller to the Headquarters
Company of the 172nd Stryker Brigade, an Alaska-based unit. He arrived in Alaska on
June 17, 2005. Upon arrival, Heller registered to vote, obtained an Alaska driver's
license, and changed his military records to indicate Alaska residency. On August 14,
2005, Heller was deployed to Iraq. Although Heller's service in Iraq was initially
scheduled to last one year, the army extended his stay an additional 120 days. Heller
finally returned to Alaska on December 11, 2006.
-2- 6849
----------------------- Page 3-----------------------
In March 2007 Heller applied for a Permanent Fund Dividend to be paid
in 2007 for the 2006 qualifying year.1 Several months later, Heller received a letter from
Alaska's Department of Revenue (the State) denying his application. The letter
explained that pursuant to AS 43.23.008(b) Heller was not eligible for the PFD because
he was not an Alaska resident for at least six consecutive months before leaving the state.
Heller filed a request for informal appeal, arguing that the short duration of his stay in
Alaska prior to leaving the state should not prevent him from receiving a PFD because
his position in the Army required him to go to Iraq. A PFD technician denied Heller's
appeal. However, the denial included several erroneous facts. It stated that Heller had
arrived in Alaska on June 17, 2006, when he had actually arrived exactly one year
earlier. It also stated that Heller had failed to obtain an Alaska driver's license, register
to vote in Alaska, and register a vehicle in Alaska, when he had actually done all three.
Pointing out these errors, Heller filed a request for a formal hearing.
The Office of Administrative Hearings held a formal hearing on
December 27, 2007. Despite adopting Heller's corrected version of the facts, the
administrative law judge denied Heller's appeal. The judge noted that under
AS 43.23.008(a)(3), it is possible for a person serving in the armed forces to retain PFD
eligibility while living in another state or country during the qualifying year. However,
the judge went on to explain that a person can take advantage of this allowable absence
provision only if he was an Alaska resident for at least 180 days immediately before
2 Because there is no exception for involuntary absences, and Heller
leaving the state.
1 The "qualifying year" for a given PFD is the year that immediately
preceded January 1 of the year in which the PFD is paid. See AS 43.23.095(6). Thus,
2006 was the qualifying year for the 2007 PFD.
2 See 15 Alaska Administrative Code (AAC) 23.163(b)(1) (2007).
-3- 6849
----------------------- Page 4-----------------------
was a state resident for at most 59 days before leaving for Iraq, the judge concluded that
Heller was not entitled to the 2007 PFD.
Heller appealed to the superior court, which closely examined the issues
and affirmed the administrative decision. Heller appeals, arguing that the superior
court's decision relies on a misinterpretation of the statute. In the alternative, Heller
asserts that if the superior court's reading of the statute is correct, and he is precluded
from receiving a 2007 PFD, the statute violates equal protection under both federal and
state law.
III. STANDARD OF REVIEW
When the superior court acts as an intermediate appellate court, we
3
The specific
independently review the merits of the underlying administrative decision.
form our independent review takes is de novo review: We adopt the rule of law that is
most persuasive in light of precedent, reason, and policy.4
Heller contests an agency's interpretation of one of its governing statutes.
Because the interpretation involves legislative intent rather than agency expertise, we
5
But the specific form our independent review
apply independent review here as well.
3 See State, Pub. Emps. Ret. Bd. v. Morton , 123 P.3d 986, 988 (Alaska 2005)
(citing State, Dep't of Natural Res. v. Greenpeace, Inc. , 96 P.3d 1056, 1061 (Alaska
2004)).
4
See State v. Native Vill. of Tanana, 249 P.3d 734, 737 (Alaska 2011)
("Under de novo review, we apply 'the rule of law that is most persuasive in light of
precedent, reason, and policy.' " (quoting Glamann v. Kirk, 29 P.3d 255, 259 (Alaska
2001))); Homer Electric Ass'n, Inc. v. City of Kenai , 816 P.2d 182, 185 (Alaska 1991)
("Because the superior court acted below as an intermediate appellate court, we [do not
defer] to its decision; rather, we review the case de novo." (citing Tesoro Alaska
Petroleum Co. v. Kenai Pipe Line Co. , 746 P.2d 896, 903 (Alaska 1987))).
5
Morton , 123 P.3d at 988 (quoting Alaska Ctr. for the Env't v. Rue , 95 P.3d
(continued...)
-4- 6849
----------------------- Page 5-----------------------
takes is distinct from pure de novo review. We apply the substitution-of-judgment
6
standard. Under this standard, we again adopt the rule of law that is most persuasive in
light of precedent, reason, and policy, but in doing so we give due deliberative weight
"to what the agency has done, especially where the agency interpretation is
7
longstanding."
Constitutional interpretation presents questions of law that are subject to
independent review under the de novo standard.8
IV. DISCUSSION
A. Heller Does Not Meet The Eligibility Requirements Of AS 43.23.008.
Alaska Statute 43.23.005(a) sets out the basic eligibility requirements for
receiving a PFD. In pertinent part, the statute requires that an applicant "was, at all times
during the qualifying year, physically present in the state or if absent was absent only as
5 (...continued)
924, 926 (Alaska 2004)).
6 Id . We have also referred to the substitution-of-judgment standard as the
"independent judgment" standard. See Chugach Electric Ass'n, Inc. v. Regulatory
Comm'n of Alaska, 49 P.3d 246, 249-50 (Alaska 2002) (citing and quoting Nat'l Bank
of Alaska v. State, Dep't of Revenue, 642 P.2d 811, 815 (Alaska 1982)).
7 Chugach Electric, 49 P.3d at 249-50 (quoting Nat'l Bank of Alaska , 642
P.2d at 815) (internal quotation marks omitted).
8 Eagle v. State, Dep't of Revenue , 153 P.3d 976, 978 (Alaska 2007) (citing
Laidlaw Transit, Inc. v. Anchorage Sch. Dist. , 118 P.3d 1018, 1023 (Alaska 2005)); State
v. Planned Parenthood of Alaska , 171 P.3d 577, 581 (Alaska 2007) (citing Treacy v.
Municipality of Anchorage , 91 P.3d 252, 260 (Alaska 2004)).
-5- 6849
----------------------- Page 6-----------------------
9
allowed in AS 43.23.008." Alaska Statute 43.23.008(a) enumerates the physical
10
absences that are allowed. In pertinent part, it states:
(a) Subject to (b) and (c) of this section, an 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
. . .
(3) serving on active duty as a member of the armed
forces of the United States . . . ;
. . .
(16) for any reason consistent with the individual's
intent to remain a state resident, provided the absence
or cumulative absences do not exceed
(A) 180 days in addition to any absence or
cumulative absences claimed under (3) of this
[11]
subsection . . . .
Alaska Statute 43.23.008(b) provides:
An individual may not claim an allowable absence under
(a)(1)-(15) of this section unless the individual was a resident
of the state for at least six consecutive months immediately
[12]
before leaving the state.
9 AS 43.23.005(a)(6).
10 In 2008 the legislature amended AS 43.23.008, Ch. 36, §§ 1-2, SLA 2008.
The amendments are not substantively relevant to this case, but they caused the
subsections to be numbered differently. Because this dispute arose under the 2007
statute, we follow the numbering that existed prior to the 2008 amendment.
11 Former AS 43.23.008(a) (2007).
12 Former AS 43.23.008(b) (2007) (emphasis added).
-6- 6849
----------------------- Page 7-----------------------
The question before us is whether Heller may claim an "allowable absence" for the
period of time he was away from Alaska, serving in Iraq.
Heller argues that he is entitled to simultaneously claim two allowable
absences: an allowable absence under subsection (a)(3) for his military service, and an
allowable absence under subsection (a)(16) "for any reason consistent with [his] intent
to remain a state resident." He acknowledges that a person only claiming an allowable
absence under subsection (a)(3) is subject to a prior residency requirement of six months.
He also does not contest that because he did not move to Alaska until June 2005, he had
only been an Alaska resident for two months before leaving the state.
However, Heller points to subsection (a)(16), under which he is entitled to
an additional 180 days out of the state "for any reason consistent with [his] intent to
13 Unlike subsection (a)(3), subsection (a)(16) is not subject to
remain a state resident."
the six-month residency requirement. Heller argues that because the six-month
requirement does not apply to absences under (a)(16), he should be able to apply
subsection (a)(16)'s 180 days to the period immediately following his August 2005
departure for Iraq. In Heller's view, by the time he had exhausted those 180 days, he had
already been a resident of the state for over six months, and was therefore eligible for
subsection (a)(3)'s allowable absence for military service. Heller argues that he should
be allowed to combine subsections (a)(3) and (a)(16) in this manner because, according
to Heller, the statute's text and legislative history support his interpretation.
The State disagrees. It argues that Heller's interpretation ignores the plain
language of the statute, renders language in the statute superfluous, and undermines the
legislature's intent to limit the dividend to permanent residents. It points to the plain
language of AS 43.23.008(b), which states that in order for an applicant to claim an
13 Former AS 43.23.008(a)(16)(A) (2007).
-7- 6849
----------------------- Page 8-----------------------
allowable absence under subsection (a)(3), he must have been "a resident of the state for
14
at least six consecutive months immediately before leaving the state." The State
observes that, contrary to the statute's explicit language, Heller's interpretation of the
statute would allow him to claim the allowable absence even though he had been a
resident for less than six months before leaving.
To resolve this dispute we must look to the language and purpose of the
statute. "The objective of statutory construction is to give effect to the intent of the
legislature, with due regard for the meaning that the statutory language conveys to
15
others." We give unambiguous statutory language its ordinary and common meaning,
but the "plain meaning" rule is not an exclusionary rule; we will look to legislative
16
history as a guide to construing a statute's words. "The plainer the meaning of the
17
statute, the more persuasive any legislative history to the contrary must be."
In this case, the statute's language is reasonably clear. It provides:
An individual may not claim an allowable absence under
(a)(1)-(15) of this section unless the individual was a resident
of the state for at least six consecutive months immediately
[18]
before leaving the state.
14 AS 43.23.008(b) (emphasis added).
15 City of Dillingham v. CH2M Hill Nw., Inc. , 873 P.2d 1271, 1276 (Alaska
1994) (citing Saunders Props. v. Municipality of Anchorage, 846 P.2d 135, 138 n.4
(Alaska 1993)).
16
Id. (citing N. Slope Borough v. Sohio Petroleum Corp. , 585 P.2d 534, 540
& n.7 (Alaska 1978)).
17
Id. (citing Peninsula Mktg. Ass'n v. State , 817 P.2d 917, 922 (Alaska
1991)).
18 Former AS 43.23.008(b) (2007).
-8- 6849
----------------------- Page 9-----------------------
This section prohibits a PFD applicant from claiming an allowable absence under former
AS 43.23.008(a)(1)-(15) if that person did not reside in the state for at least six
consecutive months immediately before leaving the state. Heller's interpretation
contradicts this language; it would allow him to claim an allowable absence under
subsection (a)(3) even though he did not reside in Alaska for six consecutive months
prior to leaving the state.
Heller seizes on the use of the word "resident" in former AS 43.23.008(b)
and emphasizes that he meets the basic definition of a "resident" under the PFD statute
19
because he intended to remain in Alaska indefinitely. Heller's focus on the word
"resident" is misleading. The allowable absences listed in AS 43.23.008 are exceptions
to the "physically present" requirement of AS 43.23.005. And the specific language of
subsection (b) makes clear that the requirement set out in this subsection concerns
physical presence, which, in this case, serves as an important indicator of intent to remain
19 A "state resident" in the PFD context is defined as:
an individual who is physically present in the state with the
intent to remain indefinitely in the state under the
requirements of AS 01.10.055 or, if the individual is not
physically present in the state, intends to return to the state
and remain indefinitely under the requirements of
AS 01.10.055.
AS 43.23.095(7) (emphasis added). The PFD statute defines a state resident for PFD
purposes as a person who meets the basic eligibility requirements of AS 01.10.055 as
well as other PFD-specific requirements. It is permissible for Alaska to define a
"resident" differently for purposes of PFD eligibility than for other purposes. Schikora
v. State, Dep't of Revenue, 7 P.3d 938, 942 (Alaska 2000) (" '[T]he residency
requirement for PFD eligibility may differ from other residency requirements.' "
(quoting Brodigan v. Alaska Dep't of Revenue , 900 P.2d 728, 733 n.12 (Alaska 1995))).
In this case, there is no dispute about Heller's intent to remain in Alaska or whether he
satisfies the preliminary requirement of AS 01.10.055. The dispute concerns Heller's
qualifications under the PFD statute.
-9- 6849
----------------------- Page 10-----------------------
in Alaska. The words "immediately before leaving" in subsection (b) corroborate our
understanding that persons claiming an absence under subsection (a)(3) must have a six-
month period as a state resident. Heller's alternative reading of the statute is too strained
for us to accept; the statute does not authorize a PFD claimant to briefly enter the state,
physically "leav[e]" the state for the entire remaining portion of the six-month period (as
Heller did - a period of over four months) and satisfy the six-month requirement from
another location. The modifier "consecutive" in AS 43.23.008(b) further reinforces our
reading; if subsection (b) were concerned solely with intent to remain in Alaska, and not
at all concerned with physical presence, then the modifier "consecutive" would be
unnecessary because the continuous nature of the intent is already required by the word
"indefinitely" found in AS 43.23.095(7). While the word "resident" in AS 43.23.008(b)
creates some ambiguity, the best reading of this provision requires an applicant to
physically reside in the state for six consecutive months before he or she can claim an
20
allowable absence under subsection (a)(3).
Heller argues that the State's "fixation" on the "immediately before leaving
the state" language is illogical in light of the legislature's clear intent to enable military
personnel to simultaneously claim allowable absences from subsections (a)(3) and
(a)(16). Heller is correct that the legislature clearly intended to enable military personnel
20 The dissent suggests that today's opinion creates a requirement of "physical
presence for six consecutive months" before a person can take an allowable absence,
which "will come as a great surprise to the many high school graduates who take an out-
of-state spring break or summer vacation before departing for a college outside Alaska."
But this hypothetical scenario is not before the court. Moreover, our opinion nowhere
requires six months of "continuous" physical presence as the dissent claims. The
concept of residency does not preclude temporary absences as long as the intent to
remain continues. Former AS 43.23.008(b) (2007).
-10- 6849
----------------------- Page 11-----------------------
to combine the two kinds of allowable absences. Subsection (a)(16) makes an
individual's absence allowable if it was:
(16) for any reason consistent with the individual's intent to
remain a state resident, provided the absence or cumulative
absences do not exceed
(A) 180 days in addition to any absence or cumulative
[21]
absences claimed under (3) of this subsection.
Under this subsection, an applicant may be absent for any amount of time due to military
service, and in the same qualifying year, be absent "for any reason consistent with [his]
intent to remain a state resident" as long as that additional absence does not exceed 180
days. Combining the subsections in this way enables an individual to be out of the state
for the purpose of military service for nine months out of the year, and go on vacation
out of Alaska for three months; as long as he intends to remain an Alaska resident, he
remains eligible for a PFD.
But contrary to Heller's argument, the reading of the statute that the State
endorses is not inconsistent with the legislature's intent to enable military personnel to
combine absences under (a)(3) and (a)(16). Under the State's reading, an applicant may
combine (a)(3) and (a)(16) in a single year. However, if the applicant claims under
(a)(3), he must have resided in Alaska for at least six consecutive months before leaving
the state. This reading does not give rise to internal inconsistency; rather, it evinces a
legislative intent to treat long absences more stringently than short ones. Not only must
a person absent for more than 180 days be absent due to a legislatively-approved purpose
- that is, one of the purposes enumerated in subsections (a)(1)-(15) - but such an
absence must be immediately preceded by at least six consecutive months of state
residence.
21 Former AS 42.23.008(a)(16) (2007) (emphasis added).
-11- 6849
----------------------- Page 12-----------------------
These more stringent requirements are consistent with the legislature's
22
The requirement
intent to limit payment of dividends to bona fide permanent residents.
that an applicant be a resident for at least six months before leaving helps to ensure that
the applicant was not merely "passing through" before he left the state, but rather had a
genuine desire to make Alaska his permanent home. Thus, there is nothing internally
inconsistent or inherently illogical in requiring an applicant claiming under
subsection (a)(3) to have been a resident for six months before leaving the state, even
where that applicant also claims an absence under subsection (a)(16).
Heller next argues that legislative history supports his reading. Heller
points to the legislative history of the 2003 amendment that lengthened the amount of
time military personnel can be out of the state over and above absences for the purpose
of military service. Before the amendment, those claiming a military absence under
subsection (a)(3) were allowed only an additional 45 days out of the state under the "for
23
As a result of the amendment, military personnel
any reason" provision of the statute.
were allowed 180 days of allowable absence "for any reason," over and above time spent
24
away for the purpose of military service. As Heller notes, legislative history indicates
that the measure grew, in part, from a desire to show gratitude to military personnel for
their service by relaxing the requirements that apply to them.25
22 See State, Dep't of Revenue, Permanent Fund Dividend Div. v. Cosio , 858
P.2d 621, 625 (Alaska 1993) (stating that the purpose of the subsection of AS 43.23.095
defining state residency in the PFD context is "to limit payment of dividends to
permanent residents").
23 See ch. 69, §1, SLA 2003.
24 See id.
25 See Minutes, Sen. Fin. Comm. Hearing on S.B. 148, 23rd Leg., 1st Sess.
(continued...)
-12- 6849
----------------------- Page 13-----------------------
But in implementing that goal, the legislature nevertheless sought to limit
payment of dividends to bona fide permanent residents. The legislature chose to extend
by more than four months the allowable "for any reason" absence; it did not choose to
exempt military personnel from the "six consecutive months" requirement of
26
subsection (b). The amended statute still requires that military personnel reside in
Alaska for at least six consecutive months before claiming a military absence under
subsection (a)(3). Heller has not pointed to anything in the legislative history that
convinces us otherwise.
Heller is correct that the statute enables military personnel to claim
subsection (a)(3) and subsection (a)(16) absences in combination. But claiming the
absences in combination does not justify bypassing the "six consecutive months"
requirement of subsection (b). Heller is not eligible to claim a subsection (a)(16) absence
because he spent at most 59 days in Alaska before leaving for Iraq. In order to claim the
subsection (a)(3) absence, the PFD applicant must have first demonstrated a bona fide
intent to remain in Alaska by physically residing in the state for six consecutive months.
We agree with the State that the time Heller spent in Iraq does not count toward the
requirement of living in Alaska for six consecutive months. Thus, although Heller is
25 (...continued)
(Apr. 17, 2003) (testimony of Mark Riehle, staff to Sen. John Cowdery, bill sponsor,
introducing bill and asking the Committee to co-sponsor the bill in order to demonstrate
its "patriotic thank you to the members of the Reserves, the Guards, and those in active
duty military").
26
Compare former AS 43.23.008(a)(14)(A) (2002) ("180 days if the
individual is not claiming an absence under (1)-(13) of this subsection"), with former
AS 43.23.008(a)(14)(A) (2003) ("180 days in addition to any absence or cumulative
absences claimed under (3) of this subsection if the individual is not claiming an absence
under (1), (2), or (4)-(13) of this subsection").
-13- 6849
----------------------- Page 14-----------------------
able to claim a subsection (a)(16) absence for the first 180 days he spent in Iraq, he does
not satisfy the statutory eligibility requirements necessary to claim a PFD in 2007.
B. The Eligibility Requirements Of AS 43.23.008 Are Constitutional.
Heller also argues that the State's interpretation of the PFD statute violates
provisions of the U.S. and Alaska Constitutions. Typically, in cases like this one, we
have focused exclusively on Alaska's equal protection clause because it "is more
27
protective of individual rights than the federal equal protection clause." In this case,
we analyze the two provisions separately. We take this opportunity to clarify how recent
developments in the federal right-to-travel doctrine relate to the constitutional question
posed in this case. As explained below, we conclude that AS 43.23.008(b) is consistent
with the requirements of the U.S. Constitution's equal protection clause and article I of
the Alaska Constitution.
1. AS 43.23.008 does not violate the U.S. Constitution.
Heller argues that the statute violates the equal protection clause of the U.S.
Constitution by infringing on his constitutionally-protected right to travel, which
includes the right to migrate between states. He characterizes the allowable absence
provision as a durational residency requirement that is aimed not at distinguishing
between residents and non-residents, but rather at distinguishing between two categories
of residents - those who are eligible to claim an allowable absence and those who are
not. The State responds that the statute furthers a legitimate state interest by ensuring
that only bona fide residents receive dividends and is therefore constitutional. It
distinguishes the cases invalidating durational residency requirements cited by Heller on
two grounds: First, none of those cases concerned a state's use of a residency
27
See Underwood v. State, 881 P.2d 322, 324-25 (Alaska 1994) (quoting
State v. Anthony, 810 P.2d 155, 157 (Alaska 1991)) (internal quotation marks omitted).
-14- 6849
----------------------- Page 15-----------------------
requirement to verify that an individual is a bona fide resident; and second, those cases
did not involve readily portable benefits that are at high risk of abuse. We agree with the
State.
Heller is correct that some durational residency requirements have been
28
used to effect unconstitutional discrimination against newcomers. Unconstitutional
29
and favoring previously
discrimination has taken the forms of burdening new residents
30
established ones. And the fact that a discriminatory residency requirement is part of
a statutory scheme that provides some benefits to new residents does not by itself spare
31
that statute from scrutiny. But not all residency requirements are constitutionally
28 See, e.g., Hooper v. Bernalillo Cnty. Assessor , 472 U.S. 612, 614, 622-
24 (1985). The Equal Protection Clause of the Fourteenth Amendment to the U.S.
Constitution prohibits states from burdening the right to travel without adequate
justification. Id. at 618 & n.6. The right to interstate travel encompasses the right of new
residents to establish residency in a new state and be treated equally under the laws of
that state. Attorney Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 903 (1986) ("[O]ur recent
[right-to-travel] cases have dealt with state laws that, by classifying residents according
to the time they established residence, resulted in the unequal distribution of rights and
benefits among otherwise qualified bona fide residents."). The equal-protection
guarantee in article I of the Alaska Constitution implicates a similar analysis, which is
considered in Part IV.B.2.
29
See, e.g., Dunn v. Blumstein , 405 U.S. 330, 331, 336, 360 (1972)
(invalidating under U.S. Constitution durational residency requirement that prevented
new Tennessee residents from exercising their right to vote for one year).
30 See, e.g., Hooper , 472 U.S. at 622-24.
31
Cf. Saenz v. Roe, 526 U.S. 489 (1999) (invalidating California law under
which the maximum welfare benefits available to residents of less than one year was
capped at the level of benefits they had been entitled to in their previous state of
residence); Zobel v. Williams, 457 U.S. 55, 57-58, 65 (1982) (invalidating PFD plan
under which each adult resident received one dividend unit benefit for each year of
residency after 1959).
-15- 6849
----------------------- Page 16-----------------------
32
infirm. We must distinguish between, on the one hand, residency requirements that
treat residents differently from nonresidents, and on the other hand, durational residency
33
requirements that treat new residents differently from established ones.
A "durational residency requirement" is a waiting period. This term is also
used to describe laws, including waiting periods, that draw distinctions between old and
new residents. "Generally, a state has much more authority to draw distinctions between
34
residents and nonresidents than between long- and short-term residents." Thus,
durational residency requirements are more susceptible to constitutional infirmity than
35
laws that distinguish residents from nonresidents. But we hesitate to attach much
importance to this label because it can be easily misapplied. While the term "durational
32 See, e.g., Sosna v. Iowa, 419 U.S. 393, 395, 410 (1975) (upholding Iowa's
one-year durational residency requirement for filing a divorce action).
33 See Soto-Lopez, 476 U.S. at 904 n.3 ("We have always carefully
distinguished between bona fide residence requirements, which seek to differentiate
between residents and nonresidents, and residence requirements, such as durational,
fixed date, and fixed point residence requirements, which treat established residents
differently based on the time they migrated into the State." (citing among others Martinez
v. Bynum , 461 U.S. 321, 325-30 (1983))); Gilman v. Martin, 662 P.2d 120, 125 (Alaska
1983) ("The right to interstate or intrastate travel is impinged upon only when a
governmental entity creates distinctions between residents based upon the duration of
their residency, and not when distinctions are created between residents and
nonresidents.").
34 Williams v. Zobel, 619 P.2d 448, 451 n.7 (Alaska 1980) (citing Vlandis v.
Kline , 412 U.S. 441, 452-53 (1973); Fisher v. Reiser , 610 F.2d 629, 635 (9th Cir. 1979)),
rev'd on other grounds by Zobel v. Williams, 457 U.S. 55 (1982).
35
But see Mem'l Hosp. v. Maricopa Cnty., 415 U.S. 250, 256 (1974)
(clarifying that prior holding did not imply that durational residency requirements are
per se unconstitutional); State v. Adams, 522 P.2d 1125, 1127 (Alaska 1974) ("We do
not hereby decide that all durational residency requirements are ipso facto
unconstitutional.").
-16- 6849
----------------------- Page 17-----------------------
residency requirement" may be a useful shorthand in some cases, the key to assessing a
residency requirement's constitutionality is identifying its purpose.36 We must determine
whether a residency requirement was designed to establish the bona fides of a person's
intent to remain in the state.37
For purposes of the PFD, AS 43.23.095(7) defines "state resident" as "an
individual who is physically present in the state with the intent to remain indefinitely in
the state under the requirements of AS 01.10.055." In turn, AS 01.10.055 provides that
the "intent to remain" required to establish residency is demonstrated "by maintaining
a principal place of abode in the state for at least 30 days or for a longer period if a
longer period is required by law or regulation" and "by providing other proof of intent
38
As such, there is no consistent code-wide
as may be required by law or regulation."
definition of what it means to be a "resident."
Indeed, the legislature has defined "resident" differently for different
purposes in another section of the Alaska Statutes, and has done so just as it did in regard
to defining resident for purposes of PFD eligibility: by using the allowable absence
provision of AS 43.23.008 to distinguish between residents and non-residents. At the
36 Cf. Brodigan v. Alaska Dep't of Revenue , 900 P.2d 728, 734 n.13 (Alaska
1995) (evaluating constitutionality of PFD residency requirement by balancing "the
nature and extent of the infringement on [the right to travel] caused by the classification
against the state's purpose in enacting the statute and the fairness and substantiality of
the relationship between that purpose and the classification," and concluding "the State's
purpose in awarding PFDs only to permanent residents outweighs the minor
infringement" on the applicants' right to travel).
37
Cf. Martinez , 461 U.S. at 325-30 (reasoning that whether disputed statute
was designed to distinguish bona fide residents from nonresidents was "central question"
in evaluating its constitutionality under the right-to-travel doctrine).
38 AS 01.10.055(b)(1)-(2) (emphasis added).
-17- 6849
----------------------- Page 18-----------------------
same time that it adopted the amendments that are the subject of this dispute, the
legislature amended the section of the Public Employment Relations Act defining
residency as follows:
(e) In this section, "state resident" means an individual who
is physically present in this state with the intent to remain
permanently in the state under the requirements of
AS 01.10.055 or, if the individual is not physically present in
the state, intends to return to the state and remain
permanently in the state under the requirements of
AS 01.10.055 and is absent only temporarily for reasons
[39]
allowed under AS 43.23.008 or a successor statute.
Here, the legislature defined "state resident" as an individual who meets the requirements
set out in AS 01.10.055 and is either physically present in the state or temporarily absent
under the allowable absence provision, AS 43.23.008. This shows that the allowable
absence provision was intended to distinguish between residents and nonresidents. The
legislature clearly contemplated allowing for varying residency requirements depending
on the context - requiring longer periods of physical presence for some purposes than
40
for others.
Determining eligibility for the allowable absence provision of the PFD
statute is one such purpose. The PFD program is particularly susceptible to passers-
through establishing minimal ties to Alaska while intending to reside elsewhere.41 As
39 Ch. 44, § 1, SLA 1998 codified at AS 23.40.210(e) (emphasis added).
40 See AS 01.10.055.
41 The dissent claims that "[i]t would not be unduly burdensome for the State
to determine on an individualized basis whether an applicant relying on an allowable
absence provision is in fact a bona fide resident." But the State must now process nearly
700,000 applications every year. See State of Alaska Department of Revenue, Permanent
Fund Dividend Division, 2012 Annual Report 8 (2012) ("In total, the division received
(continued...)
-18- 6849
----------------------- Page 19-----------------------
the United States Supreme Court has recognized, the risk of distributing benefits to
42
The PFD is a highly portable
nonresidents grows if the benefits are "readily portable."
cash benefit that can be spent anywhere; and the payment is administered on a one-time,
annual basis regardless of income limits, making it a particularly attractive target for
abuse.43 The allowable absence provision magnifies this portability, allowing individuals
who leave the state for certain purposes to retain their PFD eligibility.44
Moreover, unlike the welfare benefits or voting rights at issue in Saenz v.
Roe and Dunn v. Blumstein , the PFD program is unique to Alaska. By establishing a
new state of residency for purposes of voting or welfare benefits, a person gives up the
right to vote or collect welfare benefits in the prior state of residence. But individuals
who come to Alaska to collect a PFD do not give up a permanent-fund cash payment
41 (...continued)
679,106 applications in 2012."). An applicant can accumulate tax, school, voter
registration, and motor vehicle registration records in a short time - as shown in the
present case. And an applicant's intent to return can be accurately assessed only in
hindsight in many cases. Thus, contrary to the dissent's assertion, it would be quite
burdensome for the State to determine bona fide residency on an individualized basis.
42 Saenz v. Roe, 526 U.S. 489, 505 (1999).
43 See Schikora v. State, Dep't of Revenue, 7 P.3d 938, 946 n.30 (Alaska
2000).
44
See AS 43.23.008 (listing situations where individual who is absent from
the state remains eligible for PFD). Moreover, once an individual has qualified for the
PFD and is absent from the state under the allowable absence provision, he or she can
continue to collect the PFD for up to 10 years without spending any significant period
of time in Alaska. See AS 43.23.008(c) ("An otherwise eligible individual who has been
eligible for the immediately preceding 10 dividends despite being absent from the state
for more than 180 days in each of the related 10 qualifying years is only eligible for the
current year dividend if the individual was absent 180 days or less during the qualifying
year."); AS 43.23.005(a)(4) (requiring otherwise-eligible applicants to spend 72
consecutive hours in Alaska during the prior two years).
-19- 6849
----------------------- Page 20-----------------------
from another state. Alaska's economy is a magnet for seasonal workers and other
45
In this
visitors who may stay just long enough to establish paper ties in Alaska.
context, physically residing in the state for six consecutive months is not an excessively
long requirement to establish the bona fides of PFD claimants before they depart the state
- often for lengthy periods of time.
The legislative history supports the conclusion that AS 43.23.008(b) was
enacted to ensure that only bona fide residents receive the PFD. The six-month
requirement represents the legislature's attempt to "prevent[] someone from coming into
the state for a few days, declaring residency, and then immediately claiming an allowable
46
absence." Comments from several lawmakers during legislative meetings on the 1998
amendments to the PFD statute reflect general concerns regarding fraud and abuse from
out-of-state applicants - particularly those in the military - and the difficulty of
47
The
determining whether an applicant has a genuine intent to remain in Alaska.
45 See STATE OF ALASKA , DEP 'T OF LABOR & WORKFORCE DEV .,
N
O N R E S ID E N T S W O R K IN G IN A L A S K A 2009 (2011), available at
http://labor.alaska.gov/research/reshire/NONRES.pdf.
46 Testimony of Tom Williams, legislative aide, Tape SFC-98-24, Hearing on
H.B. 2 Before Sen. Finance Comm., 20th Leg., 2d Sess. (Feb. 9, 1998).
47 See Testimony of Sen. Dave Donley at #154, Tape SFC-97, Hearing on
H.B. 2 Before Sen. Finance Comm., 20th Leg., 1st Sess. ( May 7, 1997) (expressing
concern regarding fraud and abuse from out-of-state applicants and describing fraud as
a "serious problem" that was "very difficult to police"); Testimony of Sen. Jerry Mackie
at #6, Tape SSAC-97, Hearing on H.B. 2 Before Sen. State Affairs Comm., 20th
Leg., 1st
Sess. (Feb. 20, 1997) (expressing concern regarding military personnel who come to
Alaska for a short period of time, then leave "with probably no intention of returning,"
but remain eligible for the PFD); Testimony of Rep. Pete Kott at #6, Tape SSAC-97,
Hearing on H.B. 2 Before Sen. State Affairs Comm., 20th Leg., 1st Sess. (Feb. 20, 1997)
(characterizing intent as a "difficult issue" and "the heart of the problem" of determining
(continued...)
-20- 6849
----------------------- Page 21-----------------------
legislative history also demonstrates that lawmakers were aware that the residency
48
statute contemplated allowing other statutes, such as the PFD statute, to include
49
additional tests for residency. Given the concerns regarding abuse and the difficulty
in determining the bona fides of an applicant's declared intent to remain, the six-month
requirement was enacted in an attempt to distinguish residents from nonresidents.
A comparison to the earlier version of the PFD statute is also instructive.
Before 1998, PFD claimants were required to demonstrate their bona fide intent to
remain in Alaska by remaining physically in the state unless absent for a legislatively
50
Under the former statute, the list of legislatively
approved purpose and length of time.
51
approved absences was incorporated into the definition of "state resident." And there
is no dispute that the former statutory scheme - with its residency requirements - was
52
consistent with the right-to-travel doctrine. The 1998 amendment created an
47 (...continued)
residency for out-of-state applicants such as members of the military or students).
48 AS 01.10.055.
49 Testimony of Rep. Bettye Davis, Tape No. HFC-97-15, Hearing on H.B.
2 Before House Finance Comm., 20th Leg., 1st Sess. ( Jan. 30, 1997).
50 See former AS 43.23.095(8) (1997); 15 AAC 23.163(c) (1997).
51 See former AS 43.23.095(8) (1997).
52 See Church v. State, Dep't of Revenue, 973 P.2d 1125, 1131 (Alaska 1999),
("[T]he PFD regulations and statutes in question are bona fide requirements which
ensure that benefits 'provided for residents are enjoyed only by residents,' and as such
do not violate the constitutional right of interstate travel." (quoting Attorney Gen. of N.Y.
v. Soto-Lopez, 476 U.S. 898, 904 n.3 (1986))).
-21- 6849
----------------------- Page 22-----------------------
53
"allowable absence" provision, separate from the definition of "state resident." It is
significant that the substance of the amended statute mirrored the substance of the earlier
statute and regulations.54
Heller acknowledges that the 1998 amendment was only designed to effect
"technical changes." Nevertheless, he goes on to argue that the amendment renders the
statute unconstitutional because, following the amendments, a person could meet the
minimum requirements for being a resident spelled out in AS 43.23.095 but remain
ineligible for a PFD as a result of the allowable absence provision in AS 43.23.008(a).55
We cannot agree with Heller's analysis.
It is well established that "the residency requirement for PFD eligibility
56
may differ from other residency requirements." Eligibility for the PFD includes
meeting a definition of residency tied to physical contact to the state, which may be more
57
Other provisions
difficult to meet than the definition of residency for other purposes.
58
set out threshold requirements for being a state "resident," while AS 43.23.008(b) sets
out a requirement specific to PFD applicants who spend a substantial period of time
53 Ch. 44, §§ 5, 7, SLA 1998.
54 Compare former AS 43.23.008 (1999), with former AS 43.23.095(8)
(1997), and 15 AAC 23.163(c) (1997); see also Church , 973 P.2d at 1127-28 & n.2
(interpreting pre-1998 statute and regulations).
55 See former AS 43.23.008 (2007).
56 Schikora v. State, Dep't of Revenue, 7 P.3d 938, 942 (Alaska 2000)
(quoting Brodigan v. State, Dep't of Revenue , 900 P.2d 728, 733 n.12 (Alaska 1995))
(internal quotation marks omitted); see also Church, 973 P.2d at 1129.
57
Compare AS 43.23.008, with AS 01.10.055.
58 See AS 01.10.055.
-22- 6849
----------------------- Page 23-----------------------
59
residing outside of state borders. Far from singling out newcomers for additional
burdens,60 this provision was designed to make sure that PFDs - highly portable cash
61 Like its predecessor,
payments sent once a year - went only to state residents.
59 We recognize that although "[t]here is a presumption that the same words
used twice in the same act have the same meaning," Jonathan v. Doyon Drilling, Inc. ,
890 P.2d 1121, 1124 (Alaska 1995) (quoting Kulawik v. ERA Jet Alaska , 820 P.2d 627,
634 (Alaska 1991)), "it is possible to interpret an imprecise term differently in two
separate sections of the statute which have different purposes." 2A NORMAN J. SINGER
& J.D. SHAMBIE SINGER , SUTHERLAND STATUTORY CONSTRUCTION § 64:6 (7th ed.
2008). As we have noted, the term "resident" is by definition imprecise, because it
requires "maintaining a principal place of abode in the state for at least 30 days or for a
longer period if a longer period is required by law or regulation." AS 01.10.055.
(Emphasis added.) And the two provisions under discussion have different purposes:
one determines eligibility for the PFD while the other determines eligibility for the
allowable absence provision. As such, it is consistent with statutory principles of
construction to assign different meanings to the term "resident" in different sections of
the PFD statute. Finally, here these different meanings are compelled by the convincing
evidence of legislative intent described above.
60 New residents who have not fulfilled the six consecutive months
requirement of AS 43.23.008(b) are not the only Alaska residents ineligible for PFDs.
Previously established residents may be ineligible for a given year's PFD if during the
qualifying year they fail to comply with the allowable absence provisions, by, for
example, staying out of state for more than 45 days without claiming any absences under
subsection (a)(1)-(16). A long-standing resident may be ineligible for a PFD for failure
to submit required proof of eligibility or for failure to comply with the requirements of
other state or federal laws. See AS 43.23.005(a)(1), (a)(7), (d) (2007).
61 Cf. Church, 973 P.2d at 1130 (considering six-month restriction on
allowable absences in earlier PFD statute and concluding "[t]he objective of the
challenged statutes and regulations is to ensure that only permanent residents receive
dividends" (citing Brodigan , 900 P.2d at 732)).
-23- 6849
----------------------- Page 24-----------------------
therefore, the current PFD statute sets out "bona fide requirements which ensure that
62
benefits 'provided for residents are enjoyed only by residents.' "
The WWAMI program, a collaborative medical school program among
universities in Washington, Wyoming, Alaska, Montana, and Idaho and the University
of Washington School of Medicine, employs a similar eligibility scheme. Alaska
WWAMI participants "must maintain at all times an intent to return to [Alaska] upon
completion of the program" and must have physically resided in Alaska for at least two
consecutive years prior to beginning the program, subject to an allowable absence
provision - which also requires two consecutive years of physical residence
63
immediately prior to the absence.
Because the statute is a bona fide residency requirement, rational basis
review is the appropriate level of scrutiny. While some residency requirements have
62 Id . at 1130 (quoting Attorney Gen. of N.Y. v. Soto-Lopez , 476 U.S. 898, 904
n.3 (1986)) (interpreting pre-1998 PFD statute and regulations).
63 See 20 AAC 19.030(a) (2012); see also 20 AAC 18.020 (2012) (restricting
eligibility for the Professional Student Exchange program to state residents, and stating
"[f]or purposes of this section, a person is a resident of the state if that person physically
resides in the state and maintains a domicile in the state during the 12 consecutive
months before the date of application for certification[,]" subject to an allowable absence
provision that also requires prior 12-month period of physical residence).
-24- 6849
----------------------- Page 25-----------------------
64 65
warranted strict scrutiny, others have been subject to a less stringent form of review.
66
The United States Supreme Court's most recent case on the topic, Saenz v. Roe, applied
heightened scrutiny to a durational residency requirement affecting eligibility for welfare
67
benefits. Although Saenz suggested that all durational residency requirements are
68
subject to heightened scrutiny, the Court recognized the continuing validity of earlier
64 See, e.g., Soto-Lopez, 476 U.S. at 904-06 (applying heightened scrutiny to
statutory civil-service preference for veterans who entered armed forces while residing
in New York); Mem'l Hosp. v. Maricopa Cnty. , 415 U.S. 250 (1974) (reviewing one-
year residency requirement on indigent medical care); Dunn v. Blumstein , 405 U.S. 330
(1972) (reviewing one-year residency requirement on voting); Shapiro v. Thompson, 394
U.S. 618 (1969) (reviewing one-year residency requirement on welfare-benefit
eligibility).
65
See, e.g., Martinez v. Bynum , 461 U.S. 321, 328 n.7, 333 (1983) (upholding
residency requirement on public school access under rational-basis review); Sosna v.
Iowa , 419 U.S. 393, 395 (1975) (upholding Iowa's one-year durational residency
requirement for filing a divorce action); Vlandis v. Kline, 412 U.S. 441, 452 (1973)
("Nor should our decision be construed to deny a State the right to impose on a student,
as one element in demonstrating bona fide residence, a reasonable durational residency
requirement, which can be met while in student status.") (emphasis added); Sturgis v.
Washington, 368 F. Supp. 38 (W.D. gWash. 1973) (upholding one-year residency
requirement for tuition under rational-basis test), aff'd summarily by Sturgis v.
Washington, 414 U.S. 1057 (1973); Starns v. Malkerson, 326 F. Supp. 234 (D. Minn.
1971) (upholding one-year waiting period on in-state tuition eligibility under rational-
basis test), aff'd summarily by Starns v. Malkerson, 401 U.S. 985 (1971).
66 526 U.S. 489 (1999).
67 See id. at 492, 504, 511 ("Neither mere rationality nor some intermediate
standard of review should be used to judge the constitutionality of a state rule that
discriminates against some of its citizens because they have been domiciled in the State
for less than a year.").
68 Id. (describing the application of strict scrutiny to discriminatory residency
requirements as "categorical").
-25- 6849
----------------------- Page 26-----------------------
cases that had applied lower levels of scrutiny to distinguishable residency
69
requirements. In fact, Saenz carefully distinguished cases like this one, where the
challenged statute is designed to verify bona fide residency, from cases falling under the
70
general rule of heightened scrutiny. In Schikora we took up the question that Saenz did
not resolve and made clear that rational basis review applies to classifications which
71
distinguish bona fide residents from nonresidents. We conclude that AS 43.23.008(b)
is consistent with constitutional requirements because the statute directly advances a state
interest that is undoubtedly "legitimate."72
2. AS 43.23.008 does not violate the equal protection clause of the
Alaska Constitution.
69 Saenz, 526 U.S. at 505 (citing Sosna, 419 U.S. at 395; Vlandis , 412 U.S.
at 441). For further discussion on the level of scrutiny, compare Soto-Lopez, 476 U.S.
at 904-06 (applying heightened scrutiny), with id. at 913 (Burger, C.J., concurring)
(urging an initial rational basis analysis and concluding that challenged statute fails even
that test), and id. at 916 (White, J., concurring) (concluding that challenged statute was
irrational).
70
See Saenz, 526 U.S. at 505 ("We . . . have no occasion to consider what
weight might be given to a citizen's length of residence if the bona fides of her claim to
state citizenship were questioned.").
71 See Schikora v. State, Dep't of Revenue, 7 P.3d 938, 946 n.30 (Alaska
2000).
72
Dunn v. Blumstein , 405 U.S. 330, 351 (1972) ("The State's legitimate
purpose is to determine whether certain persons in the community are bona fide
residents."). Indeed, the State's interest is probably "substantial." Soto-Lopez, 476 U.S.
at 904 n.3 ("A bona fide residence requirement, appropriately defined and uniformly
applied, furthers the substantial state interest in assuring that services provided for its
residents are enjoyed only by residents. Such a requirement . . . generally . . . does not
burden or penalize the constitutional right of interstate travel, for any person is free to
move to a State and to establish residence there." (citing Martinez v. Bynum , 461 U.S.
321, 328-39 (1983))).
-26- 6849
----------------------- Page 27-----------------------
For many of the same reasons discussed above, AS 43.23.008 does not
violate the Alaska Constitution. But we follow a slightly different approach under our
state constitution. "In analyzing a challenged law under Alaska's equal protection
provision, we first determine what level of scrutiny to apply, using Alaska's 'sliding
73
scale' standard." "The 'weight [that] should be afforded the constitutional interest
impaired by the challenged enactment' is 'the most important variable in fixing the
74
appropriate level of review.' "
According to Heller, the six-month residency requirement is an
impermissible burden on his constitutionally-protected rights to travel, to engage in an
economic endeavor within a particular field, to be free from a penalty upon short-term
residents, and to keep and bear arms. Consequently, Heller contends, the requirement
triggers heightened scrutiny under Alaska's equal protection clause.
The State responds that because the dividend is an economic interest,
AS 43.23.008(b) only warrants minimum scrutiny under Alaska's equal protection test.
The State goes on to assert that the statute bears a fair and substantial relationship to
accomplishing the legitimate objective of limiting payments to bona fide residents, and
therefore does not violate equal protection under the state constitution.
We agree with the State. We have applied our constitutional balancing test
75
We
to similar residency requirements in the past, and found them to be constitutional.
73 State v. Planned Parenthood of Alaska , 28 P.3d 904, 909 (Alaska 2001)
(citing Matanuska-Susitna Borough Sch. Dist. v. State , 931 P.2d 391, 396 (Alaska
1997)).
74
Id. (quoting Alaska Pac. Assurance Co. v. Brown , 687 P.2d 264, 269
(Alaska 1984)).
75
See Church v. State, Dep't of Revenue, 973 P.2d 1125, 1127-28 (Alaska
(continued...)
-27- 6849
----------------------- Page 28-----------------------
have noted that the PFD is an economic interest that does not usually warrant strict
76
scrutiny, but that is not the only factor in the analysis. It is important that the burdens
on the alleged rights in this case are minimal: The six-month requirement does not bar
residents from traveling for shorter periods of time under the AS 43.23.008(a)(16)
allowance absence provision, nor does it prevent bona fide residents from spending time
out of state once they have satisfied the six-month period of AS 43.23.008(b). Assuming
that the right to work in an economic endeavor in a particular field is implicated in this
case, we conclude that the six-month requirement does not prevent Heller from
employment in the military; it simply provides that before military personnel can claim
state resources through the PFD program, they must spend six months in state.
Nor do we find merit in Heller's argument that AS 43.23.008(b) burdens
77
other interests of his. As we said in Church v. State, "[A]llowing only enumerated
75 (...continued)
1999) (reviewing PFD denial that was based on claimant having spent more than 180
days out of state caring for dying relative); Brodigan v. State, Dep't of Revenue, 900 P.2d
728, 730-31 & n.7 (Alaska 1995) (upholding PFD denial where claimants' extended
absence from Alaska supported Department's finding that they lacked "intent to remain
permanently in the state"); see also Cousins v. State, Dep't of Revenue, Mem. Op. & J
No. 1026, 2001 WL 34818200, at *1-2 (Alaska, May 9, 2001) (upholding PFD denial
where claimants were absent from Alaska for longer period than was authorized by
allowable absence provisions).
76
Church, 973 P.2d at 1130 (citing State v. Anthony, 810 P.2d 155, 158
(Alaska 1991)).
77
We find no merit in Heller's contention that AS 43.23.008 burdens his right
to bear arms under the Second Amendment of the U.S. Constitution. Heller argues that
the constitutionally-protected right to bear arms encompasses a right to serve in the U.S.
military, but the cases Heller cites - McDonald v. City of Chicago, Ill., 130 S.Ct. 3020
(2010) (incorporating Second Amendment against states); District of Columbia v. Heller,
554 U.S. 570, 598-601 (2008) (invalidating District of Columbia gun restrictions);
(continued...)
-28- 6849
----------------------- Page 29-----------------------
excusable absences unless a person has been in the state more than half a year bears a fair
and substantial relationship to ensuring that the dividend goes only to permanent
residents."78
V. CONCLUSION
Because Heller is not eligible for the 2007 PFD under AS 43.23.008, and
because this statute is consistent with the requirements of the United States and Alaska
Constitutions, we AFFIRM the judgment of the superior court.
77 (...continued)
United States v. Miller, 307 U.S. 174, 178-82 (1939) (describing historical roots of
Second Amendment) - do not involve military service. To the extent that Heller raises
a distinct "right-to-travel" argument under the privileges and immunities clause of the
U.S. Constitution, we decline to address it for inadequate briefing. See Martinson v.
Arco Alaska, Inc. , 989 P.2d 733, 737-38 (Alaska 1999) (arguments inadequately briefed
are waived).
78 Church, 973 P.2d at 1130-31.
-29- 6849
----------------------- Page 30-----------------------
WINFREE, Justice, with whom STOWERS, Justice, joins, dissenting in part.
I agree with the court's determination that Richard Heller did not meet
AS 43.23.008(b)'s eligibility requirements for an allowable absence from Alaska in
1
2006. But I disagree with the court's determination that AS 43.23.008(b) is a bona fide
residency requirement and thus does not violate the United States Constitution. In my
view AS 43.23.008(b) is an unconstitutional durational residency requirement, and I
therefore would reverse the superior court's decision and order that Heller is qualified
to receive a Permanent Fund Dividend (PFD) for 2007 (based on his 2006 qualifying
year of residency).2
We must carefully distinguish between bona fide residency requirements,
which treat residents differently from nonresidents, and durational residency
3 As the
requirements, which treat new residents differently from established residents.
court correctly states today, "durational residency requirements are more susceptible to
constitutional infirmity than laws that distinguish residents from nonresidents."4 If a
1 As the court notes at Op. 6, n.10, in 2008 the legislature amended
AS 43.23.008. See Ch. 36, §§ 1-2, SLA 2008. Although not substantively relevant to
this case, the amendments caused the subsections to be numbered differently. Because
this dispute arose under the 2007 statute, I, like the court, follow the numbering existing
prior to the 2008 amendment.
2 Because I conclude that the statute violates the United States Constitution,
I do not address whether it also violates the Alaska Constitution.
3 Attorney Gen. of N.Y. v. Soto-Lopez , 476 U.S. 898, 903 n.3 (1986) ("We
have always carefully distinguished between bona fide residence requirements, which
seek to differentiate between residents and nonresidents, and residence requirements,
such as durational, fixed date, and fixed point residence requirements, which treat
established residents differently based on the time they migrated into the State.").
4
Op. at 16. Compare Soto-Lopez, 476 U.S. at 904-05 & n.4 (stating
(continued...)
-30- 6849
----------------------- Page 31-----------------------
5
durational residency requirement burdens the right to migrate, under federal
constitutional analysis the State of Alaska is required to show that the law is necessary
to further a compelling state interest.6
The distinction between a bona fide residency requirement and a durational
residency requirement does not depend merely on the requirement's purpose. If it
actually, purposely, or incidentally burdens the right to migrate, a state residency
requirement discriminating against citizens who have been residents for a relatively short
period is a durational residency requirement subject to strict scrutiny.7 The United States
4 (...continued)
durational residency requirement burdening right to migrate is subject to strict scrutiny),
with Martinez v. Bynum, 461 U.S. 321, 328 n.7 (1983) ("A bona fide residence
requirement implicates no 'suspect' classification, and therefore is not subject to strict
scrutiny.").
5 The right to travel, or "the right of free interstate migration," is "a basic
right under the Constitution" and "includes the freedom to enter and abide in any State
in the Union." Soto-Lopez, 476 U.S. at 901-02 (quoting Dunn v. Blumstein , 405 U.S.
330, 338 (1972)) (internal quotation marks omitted); see also Laurence H. Tribe, Saenz
Sans Prophecy: Does the Privileges or Immunities Revival Portend the Future - or
Reveal the Structure of the Present? , 113 HARV . L. REV . 110, 149-50 (1999):
[T]he [right to travel] cases appear to stand for a principle
according to which those benefits of living in a given state
that are constitutive of state citizenship and that may
accordingly be restricted to the state's own citizens may not
be still further restricted so that some citizens, based solely on
the duration or pedigree of their citizenship, are in effect
treated as "more equal than others."
6 Soto-Lopez, 476 U.S. at 904-05 & n.4.
7
See id. at 903 (stating Supreme Court's cases have "principally involved"
indirect burdening of right to migrate, but "[a] state law implicates the right to travel
when" it actually, purposely, or indirectly deters such travel); State v. Adams, 522 P.2d
(continued...)
-31- 6849
----------------------- Page 32-----------------------
Supreme Court more recently has stated that because "the right to travel embraces the
citizen's right to be treated equally in [a] new State of residence, the discriminatory
classification is itself a penalty," regardless of actual or incidental deterrence to
migration, and thus subject to strict scrutiny review.8
It is against this backdrop that AS 43.23.008(b) must be considered. I start
with the unremarkable proposition laid out by the court that the legislature may define
"resident" differently for PFD eligibility than for other purposes.9 I then look to see how
the legislature actually defined "resident" for PFD eligibility when Heller applied for a
2007 PFD. Prior to statutory amendments in 1998, the list of legislatively approved
10
and, as the court notes, that
absences was incorporated in the definition of "resident"
11
definition had passed constitutional muster. But, as the court also notes, the legislature
7 (...continued)
1125, 1131 (Alaska 1974) ("In our view, the nature of the benefit withheld by the state
is relevant only to judging the relative importance of the competing state interest, not to
determining the applicable standard of judicial review.").
8 Saenz v. Roe, 526 U.S. 489, 504-05 (1999).
9
Op. at 9, n.19 (quoting Schikora v. State, Dep't of Revenue, 7 P.3d 938, 942
(Alaska 2000) (" '[T]he residency requirement for PFD eligibility may differ from other
residency requirements.' ") (quoting Brodigan v. Alaska Dep't of Revenue , 900 P.2d 728,
733 n.12 (Alaska 1995))).
10 See former AS 43.23.095(8) (1997).
11
Op. at 21; see also Church v. State, Dep't of Revenue, 973 P.2d 1125, 1131
(Alaska 1999) ("[T]he PFD regulations and statutes in question are bona fide
requirements which ensure that benefits 'provided for residents are enjoyed only by
residents,' and as such do not violate the constitutional right of interstate travel."
(quoting Soto-Lopez, 476 U.S. at 904 n.3)).
-32- 6849
----------------------- Page 33-----------------------
changed that framework by creating an "allowable absence" provision separate and apart
from the definition of "resident."12
The court finds it "significant that the substance of the amended statute
mirrored the substance of the earlier statute and regulations."13 And the court makes
much of Heller's purported "acknowledgment" that the statutory changes were "only . . .
14
'technical changes.' " But the relevant portion of Heller's brief from which the court
makes this point was Heller's argument that the statutory change "made compliance with
the new allowable absence statute (AS 43.23.008) a separate eligibility requirement from
that of residency." Heller argued that this change was intentional and for a specific
purpose, quoting a Department of Law representative during a 1998 legislative hearing,
as follows:
The bill also makes a number of technical changes all of
which we support. It moves the allowable absences
provisions out of the definition and into the body of the
legislation, which allows us to tell people, even though
you're a missionary and out of state and believe that you're
an Alaskan, we don't have to tell them they're not a resident.
What we can tell them, if this legislation goes through, is that,
even though they may really be a resident, they don't qualify
[15]
for a dividend, because they're just not on the list.
I do not read from Heller's briefing any kind of concession that the change
was technical and not substantive, nor would such a concession mean much with respect
12 Op. at 21-22 (citing ch. 44, §§ 5, 7, SLA 1998).
13 Op. at 22.
14 Op. at 22.
15 Heller attributed this statement as follows: "Tape of hearing before Senate
Finance Committee on H.2, Feb. 9, 1998, Tape SFC-98 #24, testimony of Deborah Vogt
(Dept. of Law)."
-33- 6849
----------------------- Page 34-----------------------
to a question of law. In my view the change was very substantive: the Department of
Revenue wanted to change the definition of residency so it would not have to deny PFD
applications based on lack of residency, and it proposed doing so by removing allowable
absence considerations from the residency definition. The court, not Heller, posits that
the change in definition of "resident" really was not a substantive change, and that the
allowable absence framework really continued to be part of the PFD residency definition.
After the statutory change, for the entire statutory chapter regarding PFDs
(AS 43.23), "resident" means:
an individual who is physically present in the state with the
intent to remain indefinitely in the state under the
requirements of AS 01.10.055 or, if the individual is not
physically present in the state, intends to return to the state
and remain indefinitely in the state under the requirements of
[16]
AS 01.10.055.
Alaska Statute 01.10.055 provides the additional residency requirements
that the person "make a home in the state" and demonstrate an intent to remain
indefinitely "by maintaining a principal place of abode in the state for at least 30 days"
17 The
and "providing other proof of intent as may be required by law or regulation."
Department's relevant regulations require "establishment and maintenance of customary
ties indicative of Alaska residency and the absence of those ties elsewhere."18
16 AS 43.23.095(7).
17 AS 01.10.055(a)-(b).
18 15 Alaska Administrative Code (AAC) 23.143(a) (2013). The Department
also promulgated a list of objective indicia that provide proof bearing on a person's
intent to remain indefinitely in the state. 15 AAC 23.173(g).
-34- 6849
----------------------- Page 35-----------------------
The court concedes "there is no dispute about Heller's intent to remain in
Alaska or whether he satisfie[d] the preliminary requirement of AS 01.10.055." 19 The
court instead finds a dispute concerning "Heller's qualifications under the PFD statute"20
- but that dispute has nothing to do with residency qualifications, it has to do with
residents' qualifications for allowable absences. The residency requirement for PFD
purposes is set out in AS 43.23.095(7), and that requirement is that the individual be
"physically present in the state with the intent to remain indefinitely in the state under
the requirements of AS 01.10.055"; there can be no dispute that Heller was physically
present in the state with the intent to remain indefinitely under the requirements of
AS 01.10.055. In short, Heller was an Alaska resident when he was deployed to Iraq in
2005 and he was an Alaska resident in the qualifying year 2006.
Having concluded that Heller was an Alaska resident when he was
deployed to Iraq, I now look at the "allowable absences" provisions that were
intentionally severed from the PFD residency definition in 1998. Alaska Statute
43.23.008(a)(3) established an allowable absence for a person "serving on active duty
as a member of the armed forces of the United States." There is no dispute that Heller
fit this description in 2005-2006.
But under AS 43.23.008(b), a PFD applicant could not claim an allowable
absence "unless the individual was a resident of the state for at least six consecutive
21 The court's remarkable determination
months immediately before leaving the state."
that here the word "resident" is ambiguous and its interpretation that "a resident of the
state for at least six consecutive months" really means "physically reside in the state for
19 Op. at 9 n.19.
20 Id .
21 Former AS 43.23.008(b) (2007).
-35- 6849
----------------------- Page 36-----------------------
22
at least six consecutive months" comes from thin air. The Department makes no
argument for ambiguity or the need for interpretation - as the court notes, the
Department argues that although Heller was an Alaska resident, he was not an Alaska
23
resident for the six months required by AS 43.23.008(b). And the Department's
implementing regulation takes a distinctly contrary view from that of the court. The
regulation first states that "an individual who has never been physically present in Alaska
24
may not claim an allowable absence under AS 43.23.008." It then states that the
predicate requirement for an allowable absence is that the person be "a state resident for
at least 180 days immediately before departure from Alaska."25
Nothing in the statute or the regulation suggests that physical presence for
six consecutive months before departure from Alaska is a requirement for an allowable
absence. The requirement is residency for six consecutive months before departure from
26
Alaska. A consecutive six-month physical presence requirement for an allowable
absence, which necessarily implies continuous physical presence, will come as a great
surprise to the many high school graduates who take an out-of-state spring break or
22 Op. at 10.
23 See Op. at 8.
24 15 AAC 23.163(a) (emphasis added).
25 15 AAC 23.163(b)(1) (emphasis added).
26 It is clear from the regulation that the Department was aware of the physical
presence concept, and therefore could have set a consecutive six-month physical
presence requirement, but did not do so. The court states that "we give due deliberative
weight 'to what the agency has done, especially when the agency interpretation is
longstanding.' " Op. at 5. It appears that for the nearly ten years before this matter arose,
and to this day, the Department interprets AS 43.23.008(b) to require a person to be a
state resident for six months, not to require six consecutive months of physical presence.
Yet the court disregards the Department's position and fails to explain why.
-36- 6849
----------------------- Page 37-----------------------
27
summer vacation before departing for a college outside Alaska. Under the court's
analysis these students would be ineligible for a statutorily allowable absence, as would
a person who went back and forth to Seattle for medical treatment and then later stayed
28
Even a cursory look at
in Seattle for an extended period of time receiving treatment.
AS 43.23.008(a)'s allowable absences reveals that outside the context of Heller's
circumstances, the court's interpretation of AS 43.23.008(b) as requiring a consecutive
six-month physical presence in Alaska to support an allowable absence is patently
29
unworkable.
The court's response to this observation demonstrates the fallacy of its
position - the court disavows a "continous" consecutive six-month physical presence
requirement by stating that "the concept of residency does not preclude temporary
30
absences as long as the intent to remain continues." I agree completely - that is why
the statute's consecutive six-month residency requirement focuses on statutorily defined
residency and not on physical presence. In effect, the court has come full circle back to
27 See former AS 43.23.008(a)(1) (2007) (providing allowable absence for
full-time secondary and postsecondary education).
28 See former AS 43.23.008(a)(5) (2007) (providing allowable absence for
"continuous medical treatment").
29 See, e.g., former AS 43.23.008(a)(2) (2007) (absence for vocational,
professional, or certain other education); (a)(4) (absence for merchant marine service);
(a)(6) (absence for providing care for certain critically ill family members); (a)(7)
(absence for providing care for terminally ill family member); (a)(8) (absence for settling
family member's estate); (a)(10) (absence while serving as a state employee). I also
wonder how the court's new interpretation that AS 43.23.008(b) requires a continuous
180-day physical presence prior to departure would work for those seeking an allowable
absence for serving in Congress or as congressional staff despite traveling back and forth
between Washington, D.C. and Alaska. Cf. former AS 43.23.008(a)(9)-(10) (2007).
30 Op. at 10 n.20 (citing former AS 43.23.008(b) (2007)).
-37- 6849
----------------------- Page 38-----------------------
the inescapable conclusion that "resident" in AS 43.23.008(b) means "resident" as
defined by AS 43.23.095(7) and AS 01.10.055, and does not mean "physically present."
In my view AS 43.23.008(b) treats new residents - those who have been
Alaska residents for less than six months - differently from established residents; it is
not a bona fide residency requirement. Under the statutory framework instituted by the
legislature in 1998, the combination of AS 43.23.095(7) and AS 01.10.055 - not
AS 43.23.008(b) - distinguishes bona fide residents from passers-through. Upon
establishing a principal abode in the state, displaying an intent to remain a resident
indefinitely, and establishing customary ties to the state, a person becomes a bona fide
resident and must be treated as other residents under AS 43.23. But AS 43.23.008(b)
provides that an allowable absence may not be claimed unless a person "was a resident
31
of the state for at least six consecutive months immediately before leaving the state";
this is "not simply a waiting period after arrival in the State; it is a waiting period after
32 Consequently, AS 43.23.008(b) is a durational residency
residence is established."
requirement - not a bona fide residency requirement - regardless of its purpose.
Under strict scrutiny review, the suspect provision must be necessary to
further a compelling state interest. Moreover, the suspect provision must be drawn with
33
precision and must be narrowly tailored to serve legitimate objectives. The objective
of AS 43.23.008(b) is to help ensure that only permanent, bona fide residents of Alaska
31 Former AS 43.23.008(b) (2007) (emphasis added).
32 Dunn v. Blumstein , 405 U.S. 330, 350 n.20 (1972) (emphasis added)
(defining a durational residency requirement).
33 Id. at 343 ("And if there are other, reasonable ways to achieve those goals
with a lesser burden on constitutionally protected activity, a State may not choose the
way of greater interference.").
-38- 6849
----------------------- Page 39-----------------------
34
receive PFDs - certainly a legitimate state interest. But even if the interest were
compelling, the statute's six-month residency requirement creates a classification crudely
excluding both nonresidents (or passers-through) and bona fide residents alike, and such
35
a "classification is all too imprecise." It would not be unduly burdensome for the
Department to determine on an individualized basis whether an applicant relying on an
allowable absence provision is in fact a bona fide resident; the Department already
requires the establishment of an abode and provides a list of other objective indicia of an
intent to remain indefinitely, including tax, school, voter registration, and motor vehicle
36
registration records. Because it creates an overbroad classification by conclusive
presumption, rather than by the precision and tailoring required under law, I conclude
that AS 43.23.008(b) violates the United States Constitution.
34 See Martinez v. Bynum , 461 U.S. 321, 328 (1983) ("A bona fide residence
requirement, appropriately defined and uniformly applied, furthers the substantial state
interest in assuring that services provided for its residents are enjoyed only by
residents."); see also Dunn , 405 U.S. at 351 ("The State's legitimate purpose is to
determine whether certain persons in the community are bona fide residents.").
35 Dunn , 405 U.S. at 351.
36 See 15 AAC 23.173(g).
-39- 6849
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
