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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Gerald Markham v Kodiak Island Borough Board of Equalization, Gerald Markham v Kodiak Island Borough Board of Equalization (5/24/2019) sp-7367
Notice: This opinion is subject to correction before publication in the P ACIFIC 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@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
GERALD MARKHAM, )
) Supreme Court Nos. S-15853/16663
Appellant, )
) Superior Court Nos. 3KO-13-00471 CI/
v. ) 3KO-14-00331 CI
)
KODIAK ISLAND BOROUGH BOARD )
O P I N I O N
OF EQUALIZATION, )
) No. 7367 - May 24, 2019
Appellee. )
)
Appeal in File No. S-15853 from the Superior Court of the
State of Alaska, Third Judicial District, Kodiak, Pat L.
Douglass, Judge. Appeal in File No. S-16663 from the
Superior Court of the State of Alaska, Third Judicial District,
Kodiak, Steve W. Cole, Judge.
Appearances: Gerald W. Markham, Kodiak, Appellant.
Joseph N. Levesque and Shane E. Levesque, Levesque Law
Group, LLC, Anchorage, for Appellee.
Before: Winfree, Maassen, Stowers, and Carney, Justices.
[Bolger, Chief Justice, not participating.]
CARNEY, Justice.
I. INTRODUCTION
In 2013 and 2014 attorney Gerald Markham applied for a senior citizen tax
exemption on his residential property in Kodiak. The Borough assessor denied the
applications due to Markham's prolonged absences from Alaska. When given the
----------------------- Page 2-----------------------
opportunity to prove his absences were allowed under the applicable ordinance,
Markham refused to provide corroborating documentation. He appealed the denials to
the Borough BoardofEqualization, which affirmed thedenials. He appealed the Board's
decisions to the superior court. The superior court dismissed the 2013 appeal for failure
to prosecute, denied the 2014 appeal on the merits, and awarded attorney's fees to the
Borough. Markham appeals. We affirm the superior court's 2013 dismissal and the
Board's 2014 denial on the merits, but vacate the superior court's award of attorney's
fees and remand for further findings.
II. FACTS AND PROCEEDINGS
A. KodiakIslandBorough'sProperty TaxExemptionForSeniorCitizens
The Alaska legislature has enacted a mandatory property tax exemption for
1 This exemption provides that "real property owned and
residents who are older than 65.
occupied as the primary residence and permanent place of abode by a resident who
is . . . 65 years of age or older . . . is exempt from taxation on the first $150,000 of the
assessed value of the real property."2 The statute allows a municipality to determine
eligibility for the exemption by requiring that an individual meet the eligibility
requirements of the Permanent Fund Dividend (PFD) program.3
The Kodiak Island
Borough passed an ordinance incorporating the PFD eligibility criteria into its eligibility
criteria for the property tax exemption.4
1 AS 29.45.030(e).
2 Id.
3
AS 29.45.030(f).
4
See former Kodiak Island Borough Code (KIBC) 3.35.080(D).
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----------------------- Page 3-----------------------
An individual applying for a PFD who is not physically present in Alaska
5
during the qualifying year must prove that the absence was allowed by statute. Alaska
Statute 43.23.008(a) lists the allowable absences, including: providing medical care to
certain family members "with a critical life-threatening illness" who must travel out of
6 "accompanying another eligibleresident
statetoreceivedoctor-recommendedtreatment;
who is absent for a reason permitted [by the statute];"7 and "for any reason consistent
with the individual's intent to remain a state resident, provided the absence or cumulative
absences do not exceed . . . 45 days in addition to any absence or cumulative absences"
claimed under the statute.8
Gerald Markham has been an attorney since 1972. In 2013 and 2014,
Markham - then over the age of 65 - applied for a property tax exemption from the
Kodiak Island Borough for a home he owns in the Borough. Markhamalso owns a home
in Anchorage, two homes in Washington - one of which has been Markham's contact
address throughout this litigation - and a home in Arizona.
On his 2013 application Markham noted that the last time he received a
PFD was in 2004. On his 2014 application he noted that he did not qualify for the PFD
and did not intend to apply for it. The Borough assessor denied the 2013 application
because Markham had not provided "persuasive evidence" that, even though he had not
applied for a PFD, he still met its eligibility criteria and would therefore qualify for the
tax exemption. The denial letter invited him to provide additional documentation if he
5 AS 43.23.005(a)(6).
6 AS 43.23.008(a)(6).
7 AS 43.23.008(a)(13).
8 AS 43.23.008(a)(17)(C). This provision does not apply to military
absences, which receive different treatment. See AS 43.23.008(a)(3), (a)(17)(A).
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----------------------- Page 4-----------------------
wished to have the decision reconsidered. In 2014 the assessor again offered him the
opportunity to provide additional documentation to prove his eligibility. The 2014 letter
did not explicitly deny Markham's application, but reminded him of the need to satisfy
the PFD'seligibility requirements. Each letter enclosed a"PFDEligibility Supplemental
Questionnaire" and instructions that if he completed it and satisfied the criteria, the
assessor's office would reconsider the denial.
Markhamreturnedthe2013supplemental questionnaire, notinghehadbeen
absent from Alaska for approximately ten months in 2012: August 2011 through June
2012; August 2012 through December 9, 2012; and December 21, 2012 through
"present" (February 25, 2013). He claimed that all three time periods were allowable
absences because he "[a]ccompanied an eligible Alaska [r]esident as the resident's
spouse," "[v]acationed," "[c]ared for a parent, spouse, sibling, child, or stepchild with
a critical life-threatening illness that required the ill individual to leave Alaska for
treatment," and left the state for "[o]ther reasons, including business." Markham also
included a 12-page letter outlining why he believed he was an Alaska resident, but he did
not include any documentation of the reasons for his absences. The assessor again
9
denied his application, and he appealed to the Borough's Board of Equalization.
Markhamasked to attend his appeal hearing before the Board by telephone.
The Board denied his request because the Borough Code did not permit it.10 Markham
therefore appointed another Kodiak resident to appear as his representative.11 After
9 See KIBC 03.35.050(A)(3) (discussing Board of Equalization's role), (C)
(governing appeals to Board of Equalization).
10 See KIBC 3.35.050(C)(4) (requiring parties or their representatives to
appear at hearing in person).
11 See KIBC 3.35.050(C)(1) (allowing authorized representatives to appear
(continued...)
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----------------------- Page 5-----------------------
hearing from the representative, considering Markham's written materials, and noting
Markham's failure to provide supporting documentation for his absences, the Board
affirmed the assessor's denial.
Markham also returned the 2014 supplemental questionnaire, listing
absences totaling approximately 279 days between February and June 2013 and from
August2013 through mid-February 2014. Heagainclaimed hisabsences wereallowable
because they were for "continuous medical treatment," "[v]acation[]," "car[ing] for a
parent, spouse, sibling, child, or stepchild with critical life-threatening illness that
required the ill individual to leave Alaska for treatment," and "[o]ther reasons, including
business." He emailed the assessor declining to provide documentation, asserting that
it was confidential and he was concerned it would be subject to public disclosure. The
assessor again denied the application; Markham again appealed to the Board.
Markham requested to appear at the Board hearing by telephone and was
12 Markham then sent another representative
again denied based on the Borough Code.
to appear on his behalf to the hearing. The Board affirmed the assessor's denial.
B. 2013 Superior Court Proceedings
In June 2013 Markhamappealed the Board's denial of his 2013 application
in the Anchorage superior court. His statement of points on appeal claimed that the
Board abused its discretion by applying the PFD eligibility criteria to him when he
alleged that the Borough failed to adopt procedures for applying the PFD eligibility
11 (...continued)
on behalf of appellants).
12 KIBC 3.35.050(C)(4).
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----------------------- Page 6-----------------------
13
criteria as required by AS 29.45.030(f); that the Board therefore did not have authority
to hear his appeal or require him to satisfy the PFD eligibility criteria; that the Board
violated his due process rights; that AS 29.45.030(f) violated his constitutional right to
equal protection; and that AS 29.45.030(f) violated his constitutional right to travel.
The Board moved to change venue, arguing that Kodiak was the proper
venue. Markham opposed the motion, but the court granted the motion in November
2013, changing venue to Kodiak.
On July 11, 2014, the Kodiak superior court gave Markham an August 11
deadline to file his opening brief. Prior to and shortly after the change in venue,
Markham filed a series of documents - each opposed by the Board - seeking to
supplement the record and opposing the Board's motion for change of venue and motion
to stay. Among the documents Markham filed was a "Petition for Reconsideration of
February 10 and 18, 2014 Orders In Light of Intervening Alaska Supreme Court
Decision." In the conclusion of his petition Markham sought "a stay of this court's
briefing order" until he could review the Board's records and move to supplement the
record on appeal. The Board opposed the petition, noting that it did not comply with
appellate rules, but did not address the request for stay. The superior court denied the
petition in late September, but likewise did not address Markham's request for stay.
The Board moved to dismiss Markham's appeal on October 23. It cited
Appellate Rules 612, 503, and 511.5, and pointed out that Markham's brief was more
than 60 days delinquent. Markham opposed the motion, claiming that he had requested
a stay and that the court's September 29 order denying his petition "[had] not come to
his immediate attention" because it was mailed to his Kodiak address, not his
13
See AS 29.45.030(f) ("Each municipality shall, by ordinance, establish
procedures and deadlines for filing the application.").
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----------------------- Page 7-----------------------
Washington address where he was residing and which he had listed with the court as his
contact address. The court denied the motion to dismiss, explaining that before the court
could dismiss an appeal for failure to comply with the briefing schedule, the court must
inform the appellant of the pending dismissal and allow an additional 14 days to file the
14
brief.
The court gave Markham an additional 14 days from November 17 to file
his brief. Markham mailed his brief on December 1. On December 8, 2014, the court
dismissed the appeal because it had not received Markham's brief within the allotted 14
days.
Markham moved for reconsideration, arguing that his brief was timely
because Appellate Rule 502(d) recognizes the date of mailing as the date of filing. The
Board responded that Markham's brief was due on December 1, and that Appellate Rule
602(j) "unambiguously" required him to file the brief at the Kodiak superior court on or
15 Markham replied that he had relied on an " 'older' set of Alaska
before the due date.
Court Rules," which predated the amendment of Appellate Rule 602(j). He also argued
that he acted reasonably, that there was no prejudice to the Board in accepting his late-
14 Alaska R. App. P. 606(a), 511.5(a). We note that Alaska Rules of
Appellate Procedure 511.5(a) and 511.5(c) appear to be at odds. Rule 511.5(a) entitles
an appellant to an additional 14-day "grace period," while Rule 511.5(c) allows the court
to dismiss an appeal for failure to comply with the rules (i.e., failure to timely file a
brief), regardless of whether prior notice has been given. In Cowitz v. Alaska Workers'
Compensation Board , we noted that "[t]here is no logical way to reconcile these two
subsections," but that if Rule 511.5(a) granted each appellant a 14-day grace period, then
the 30-day brief filing deadline would be meaningless. 721 P.2d 635, 637 (Alaska
1986). Accordingly the court was not required to grant the 14-day extension but did so
in its discretion.
15 See Alaska R. App. P. 602(j) ("Documents mailed to the superior court will
be deemed filed on the date of receipt by the clerk.").
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----------------------- Page 8-----------------------
filed brief, and that he had shown just cause. The superior court denied the motion to
reconsider. The court's order stated that the case was clearly governed by Appellate
Rule 602(j) and Markham's brief was therefore untimely. It rejected Markham's
argument that the Board had suffered no prejudice, found that there was no justification
for his late filing, and found that he "continuously flouted the Rules of Procedure during
his appeal." The court then invited the Board to file a proposed bill of costs.
The Board requested monetary sanctions or attorney's fees totaling
$32,551.65. Markham opposed the motion, arguing that he was a "public interest
constitutional litigant." In March 2015 the court awarded the Board $7,438.93 in
attorney's fees and costs.
Markham appealed the dismissal and attorney's fees and costs award.
C. 2014 Superior Court Proceedings
In December 2014 Markham appealed the Board's denial of his 2014
application to the Kodiak superior court. He listed the same grounds as his 2013 appeal,
adding that the assessor should have been disqualified due to bias and that the Borough
ordinances were void because they exceeded the authority granted by AS 29.45.030. He
moved to supplement the record to include the entire record from the 2013 proceedings
and an affidavit from his representative at the hearing. The court allowed only a few
documents to which the Board did not object.
The superior court heard oral argument in August 2016 and denied the
appeal in February 2017. The court found that the exemption was constitutional both on
its face and as applied to Markham and that the Board had not violated his due process
rights. In July the court amended its order to clarify the standards of review and make
explicit findings of the substantial evidence that supported the Board's decision. The
Board requested additional time to file a motion for attorney's fees and costs, but the
-8- 7367
----------------------- Page 9-----------------------
superior court stayed the issue of attorney's fees and costs pending the resolution of
Markham's 2013 appeal.
Markham appealed.
III. STANDARD OF REVIEW
"When the superior court is acting as an intermediate appellate court, we
16
independently review the merits of the underlying administrative decision." "A
constitutional issue presents a question of law which we review de novo, and to which
17
we apply our independent judgment." In using our independent judgment, "[w]e adopt
18
the rule of law that is most persuasive in light of precedent, reason, and policy." We
review a superior court's dismissal of an administrative appeal for failure to prosecute
19
We will find a superior court's decision to
under the abuse of discretion standard.
dismiss an appeal under Appellate Rule 511.5 was an abuse of discretion if the decision
is "arbitrary, capricious, manifestly unreasonable, or . . . stem[s] from an improper
20 "[W]e review de novo whether the superior court correctly applied the law
motive."
in awarding attorney's fees."21
16 Heller v. State, 314 P.3d 69, 72 (Alaska 2013); see also Griswold v. Homer
City Council, 310 P.3d 938, 940 (Alaska 2013).
17 Patterson v. Walker, 429 P.3d 829, 831 (Alaska 2018) (quoting Debra P.
v. Laurence S., 309 P.3d 1258, 1260 (Alaska 2013)).
18 Heller, 314 P.3d at 72-73.
19 Collins v. Arctic Builders, 957 P.2d 980, 981 (Alaska 1998).
20 Id. (alterations in original) (quoting Sheehan v. University of Alaska , 700
P.2d 1295, 1297 (Alaska 1985)).
21 City of Kodiak v. Kodiak Public Broadcasting Corp., 426 P.3d 1089, 1093
(Alaska 2018) (quoting Brandner v. Pease, 361 P.3d 915, 920 (Alaska 2015)).
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----------------------- Page 10-----------------------
IV. DISCUSSION
A. The Superior Court Did Not Abuse Its Discretion By Dismissing The
2013 Appeal.
Markham suggests that the superior court abused its discretion by
dismissing his 2013 appeal because it "had both the duty to advise [him] of his specific
error" in filing his brief late and to allow him to correct it because he was a pro se
22
litigant.
This argument has no merit. Markham is an attorney who, as the superior
court observed, "by his own account has been practicing law for decades in Alaska." His
decision to pursue his own case does not entitle him to the leniency we give pro se
litigants in theirattempts to conformwith procedural requirements. Furthermore, despite
23
being given more notice and procedure than the rules require, Markham failed to
24
familiarize himself with relevant court procedures, failed to comply with the court's
deadline, failed to file a brief for over a year and a half after filing the notice of appeal,
and, as the superior court found, "continuously flouted the Rules of Procedure." The
court was well within its discretion to dismiss his 2013 appeal.
B. There Is No Violation of Markham's Right To Equal Protection.
Markham does not dispute that he spent significantly more time outside of
22 See Collins , 957 P.2d at 982 (concluding that judges must inform pro se
litigants of specific procedural defects in notices of appeal or grant the opportunity to
correct them).
23 Markham had notice that his appeal was going to be dismissed, was given
the opportunity to remedy his failure to file before the dismissal, and was given a 14-day
extension after his brief was already 90 days late. As previously discussed, the court was
not required to provide the additional 14-day extension but did so despite Markham's
repeated failure to abide by procedural requirements. See Cowitz v. Alaska Workers'
Comp. Bd., 721 P.2d 635, 637 (Alaska 1986); Alaska R. App. P. 511.5(c).
24 See Cowitz, 721 P.2d at 638 ("It is an appellant's responsibility to file an
opening brief, and counsel cannot expect court supervision of this procedural rule.").
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----------------------- Page 11-----------------------
Alaska in 2013 and 2014 than the PFD program permits to qualify as an eligible PFD
recipient. As a result, the Borough assessor determined that he also did not qualify for
thetaxexemption pursuant to former Kodiak Island Borough Code (KIBC) 3.35.080(D).
He argues, however, that the eligibility requirements incorporated into former KIBC
3.35.080(D) are unconstitutional because they violate his right to equal protection. He
claims that because he owns his home, does not rent it out, and is a resident for other
25 he should be eligible for the
purposes such as voting and obtaining a driver's license,
tax exemption. This argument mirrors those we have already addressed in the PFD
context,26 which is not surprising because the Borough based eligibility for the tax
exemption on the same criteria as the PFD.27
Like the PFD, the tax exemption is an economic benefit conferred by the
28 We have previously held that restricting the PFD to bona fide residents does not
State.
violate an individual's right to equal protection.29 We held that strict residency and
physical presence requirements furthered a legitimate state interest because the PFD is
a portable cash benefit and is "particularly susceptible to passers-through establishing
minimal ties to Alaska while intending to reside elsewhere."30 The tax exemption is
25 See AS 01.10.055 (setting out general residency requirements).
26
See Heller v. State, Dep't of Revenue, 314 P.3d 69, 73-81 (Alaska 2013);
Church v. State, Dep't of Revenue, 973 P.2d 1125, 1129 (Alaska 1999); Brodigan v.
Alaska Dep't of Revenue , 900 P.2d 728, 733 n.12 (Alaska 1995).
27 See former KIBC 3.35.080(D).
28 See Heller, 314 P.3d at 83; Church, 973 P.2d at 1130; Brodigan, 900 P.2d
at 734 n.13.
29 Heller, 314 P.3d at 82-84.
30 Id. at 79-82.
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similarly portable: it provides a cash benefit for those individuals who receive it. It
therefore follows that although the precise economic benefit conferred here is
different - a tax exemption rather than a PFD - the analysis is the same.
Markham appears to base his equal protection argument on a comparison
between a class of senior citizens who do not remain in Alaska for 185 days each year
due to their travel and senior citizens who do remain in Alaska for 185 days each year.
But the appropriate classes that we must consider are: individuals 65 years of age or
older who own and occupy a primary residence and permanent place of abode in Kodiak
and meet the eligibility requirements as strictly defined by the PFD statutes; and
individuals 65 years of age or older who own and occupy a primary residence and
permanent place of abode in Kodiak and do not meet the eligibility requirements as
strictly defined by the PFD statutes.
We first recognize that theBorough's tax exemption is merely an economic
31 "Under
interest similar to the PFD and therefore is entitled only to minimum scrutiny.
the minimal level of scrutiny, the state . . . needs to show [only] that the 'challenged
enactment was designed to achieve a legitimate governmental objective and that the
means bear a "fair and substantial" relationship to the accomplishment of that
objective.' "32 The issue is thus whether the Borough had a legitimate reason to treat
those who meet the eligibility requirements under the PFD statutes differently than those
who do not.
31 See State v. Schmidt , 323 P.3d 647, 663 (Alaska 2014) ("Government
action that burdens only economicinterestsgenerallyreceives only minimumscrutiny.");
Heller, 314 P.3d at 83; Church, 973 P.2d at 1130; Brodigan, 900 P.2d at 734 n.13.
32 Church, 973 P.2d at 1130 (quoting Underwood v. State, 881 P.2d 322, 325
(Alaska 1994)).
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----------------------- Page 13-----------------------
The State and its municipalities have a legitimate, if not substantial, interest
in assuring that only those with sufficiently close connections with Alaska receive an
33 In Heller v. State, Department of Revenue we
economic benefit conferred by the State.
34
recognized that the PFD is a portable cash benefit intended only for Alaska residents.
And we recognized the danger that those who were not bona fide residents might obtain
that cash from Alaska, but then reside and spend it elsewhere.35 We found that the PFD's
residency requirement, specifically requiring sixmonths ofphysical presencein theState
beforeonecould claiman allowableabsenceunder AS43.23.008(a), was notexcessively
long; rather, it was designed to ensure that PFDs went only to Alaska residents to
reduce the likelihood that this portable cash benefit would be obtained and spent in other
states by individuals who were only briefly in Alaska.36 We upheld the PFD's physical
residency requirement as constitutional because "the statute directly advances a state
interest that is undoubtedly 'legitimate.' "37
The physical presence requirement here accomplishes the same goal. In
Heller we noted that the physical presence requirement of the PFD statutes is used as a
33 See Attorney Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 904 n.3 (1986) ("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."); Heller, 314 P.3d at 82, 82 n.72 (discussing the State's
"undoubtedly legitimate" interest in assuring its economic benefits go to only bona fide
residents); Stanek v. Kenai Peninsula Borough, 81 P.3d 268, 272 (Alaska 2003)
(discussing the "unquestionably legitimate goals" in promoting home ownership through
tax exemption residency requirements because it is beneficial to the community).
34 Heller, 314 P.3d at 79.
35 Id.
36 Id. at 79, 80-81.
37 Id. at 82.
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----------------------- Page 14-----------------------
way to distinguish between residents and nonresidents for the purpose of PFD
38
eligibility.
Indeed, "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 . . . . This shows that the
allowable absence provision was intended to distinguish between residents and
nonresidents."39
Like the PFD, the Borough's tax exemption is portable and intended to
benefit only those who remain in Alaska;40 it directly translates to cash-in-hand for
property owners who receive it, as they pay nearly $2,000 less in taxes. The exemption
reduces taxes only for an individual's primary residence as a way of encouraging senior
citizens to remain in Alaska;41 it is not intended to be a discount on second homes or
42 By maintaining stringent eligibility requirements, the Borough has
vacation homes.
elected not to subsidize second homes or vacation homes and instead has ensured that
38 Id. at 81-82.
39 Id. at 79 (emphasis in original).
40 Minutes, Sen. Finance Comm., Hearing on S.B. 337, 22nd Leg., 2d Sess.
(Feb. 28, 2002) (testimony of Sen. Dave Donley).
41 Id.
42 AS 29.45.030(e) (requiring exempt real property to be "the primary
residence and permanent place of abode"). If an individual cannot meet the eligibility
requirements then the real property is not his or her primary residence for purposes of
the tax exemption. See Stanek v. Kenai Peninsual Borough, 81 P.3d, 268, 271 (Alaska
2003) (discussing a property tax exemption that differentiates between "owners of
owner-occupied primary residences in the borough and owners of second homes or other
types of real property in the borough").
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43
the tax exemption benefits only those who remain in Alaska. This is a legitimate state
interest.
Moreover, the option for municipalities to incorporate the PFD eligibility
44 was adopted by the legislature to make the process easier on both the
requirements
municipality administering the applications and those applying for the tax exemption.45
Additionally, the tax exemption is meant to encourage senior citizens to remain in
Alaska, not a particular locality within Alaska.46 Thus, although the tax exemption is
administered at a local level, it is a state-mandated exemption meant to benefit those who
wish to remain in Alaska. Allowing adoption of the PFD eligibility criteria was
rationally related to the State's legitimate interest. The tax exemption therefore
withstandsminimal scrutiny and does not violateMarkham'sconstitutionalright to equal
protection.
43 See Stanek, 81 P.3d at 272.
44 AS 29.45.030(f).
45 Minutes, Sen. Finance Comm., Hearing on S.B. 337, 22nd Leg., 2d Sess.
(Feb. 28, 2002) (testimony of Sen. Dave Donley). The tax exemption is a state-wide
mandated tax exemption, meaning if an individual qualifies for the tax exemption, the
municipality must grant it. However, this is an unfunded mandate by the State upon
local governments. The legislature adopted this provision in part to save local
governments time and money during the application process. Id. Additionally,
approximately 95% of those who apply for the tax exemption throughout the State also
apply for the PFD. Minutes, Sen. Finance Comm., Hearing on S.B. 337, 22nd Leg., 2d
Sess. (Mar. 28, 2002) (testimony of Tim Rogers, Legislative Program Coordinator for
the Municipality of Anchorage). Thus, allowing those individuals to simply transfer that
information makes the application process easier. Id.
46 See Minutes, Sen. Finance Comm., Hearing on S.B. 337, 22nd Leg., 2d
Sess. (Feb. 28, 2002) (testimony of Sen. Dave Donley).
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C. The Eligibility Requirements For The Borough's Tax Exemption Do
Not Violate The Privileges And Immunities Clause Or The Right To
Travel.
Markhamnext argues that the Borough's eligibility requirements for its tax
exemption violate his right to travel guaranteed by both the Alaska Constitution and the
United States Constitution.47
This argument has no merit. As it was authorized to do by
48
statute,
the Borough imported the PFD program's eligibility requirements. We
"squarely" and expressly rejected the same arguments Markham makes in a direct
49
challenge to the PFD eligibility requirements.
"When examining [a statute's] impact on the right of interstate migration,
the relevant questions are whether [the benefit conferred by the statute] operates in such
a way that the reasonable recipient would be deterred from exercising the right to travel,
50
and the degree of that deterrence." We held in Church v. State, Department of Revenue
that the PFD eligibility requirements' "infringement on [an individual's] right to travel
is relatively small and would not be likely to deter a person from traveling. An applicant
has no vested property right in a permanent fund dividend and should not expect to
51
receive a dividend if he doesn't meet the qualifications." The purpose in awarding the
tax exemption only to those who wish to remain in Alaska "outweighs the minor
47 U.S. Const. amend. XIV, § 1; Alaska Pac. Assurance Co. v. Brown, 687
P.2d 264, 271 (Alaska 1984) ("The right of interstate migration is a part of the Alaska
Constitution.").
48 AS 29.45.030(f).
49 Schikora v. State, Dep't of Revenue, 7 P.3d 938, 944 (Alaska 2000).
50 Alaska Pac. Assurance Co., 687 P.2d at 273.
51 973 P.2d 1125, 1131 (Alaska 1999) (internal citations omitted).
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----------------------- Page 17-----------------------
52
infringement" on an individual's right to travel. The Borough's tax exemption
therefore does not violate his fundamental right to travel.
D. The Borough Did Not Violate Markham's Right To Privacy.
Markhamclaims that the Borough violated his right to privacy by requiring
him to provide documentation that his absences were allowable. This argument also
53
lacks merit. "The burden of proving eligibility for an exemption is on the taxpayer."
Markham applied for a benefit and in response to his application was asked to provide
minimal corroboration of his claimed allowable absences. His refusal to do so simply
54
means he could not receive the benefit for which he applied. Markham was not
55
required to apply for this benefit or disclose medical information; he was free to decline
56
By asking for the benefit of a
the request for supporting information (and he did so).
tax exemption, Markham invited the Borough assessor to determine his eligibility to
52 Id. (quoting Brodigan v. Alaska Dep't of Revenue , 900 P.2d 728, 734 n.13
(Alaska 1995)).
53 Fairbanks N. Star Borough v. DenĂ¡ NenĂ¡ Henash, 88 P.3d 124, 129
(Alaska 2004).
54 See AS 29.45.030(f) ("The assessor shall require proof in the form the
assessor considers necessary of the right to and the amount of an exemption claimed
under (e) of this section . . . .").
55 Cf. Falcon v. Alaska Pub. Offices Comm'n, 570 P.2d 469, 475-76 (Alaska
1977) (discussing a regulation that required a doctor to disclose his patient's names).
56 If Markham had provided such documentation, there are sufficient
safeguards in place to ensure protection of his privacy interest. AS 40.25.120(a)(3)
(exempting "medical and related public health records" from public disclosure); KIBC
2.40.100(A)(7) (exempting "[r]ecords required to be kept confidential . . . by state law
or by borough law" from disclosure).
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57
receive it. By accepting his invitation, the Borough did not violate Markham's right
to privacy.
E. The Board Did Not Violate Markham's Right To Due Process.
Markham asserts that the Board violated his due process rights because:
(1) under KIBC 3.35.050(A)(3) the Board only has authority to hear valuation appeals;
(2) the Board did not allow him to appear at the hearing by telephone; and (3) the Board
declined to consider his late-filed supplemental documents. These arguments are neither
clearly briefed nor do they persuade us that the Board violated Markham's rights to due
58
process.
"The crux of due process is an opportunity to be heard and the right to
59
adequately represent one's interests."
Markham first argues that the Board only has authority to hear valuation
appeals. But the Alaska Administrative Code expressly allows an applicant to appeal
57 We note that the Borough assessor explained that a letter from a doctor
would have sufficed and that it did not need to "go into any kind of medical detail."
58 We analyze procedural due process claims under the test articulated in
Mathews v. Eldridge :
First, the private interest that will be affected by the official
action; second, the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value,
if any, of additional or substitute procedural safeguards; and
finally, the Government's interest, including the function
involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail.
424 U.S. 319, 335 (1976).
59 Church v. State, Dep't of Revenue, 973 P.2d 1125, 1130 (Alaska 1999)
(quoting Keyes v. Humana Hosp. Alaska, Inc., 750 P.2d 343, 353 (Alaska 1988)).
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60
"any determination of [a] local assessor" to the local Board of Equalization. Markham
was given that opportunity.
He next argues that he should have been allowed to appear by telephone at
the Board's hearings and that the Board violated his due process rights by prohibiting
him from doing so. KIBC 3.35.050(C) provides the opportunity to appear in person or
to send a personal representative and allows the Board to proceed if neither the appellant
61 Due process requires only a reasonable opportunity to be
nor a representative appears.
heard based on "the nature of the case."62 Markham was given such opportunity. He
chose not to appear in person because it would have been an inconvenience. And he
chose to send a representative on his behalf to advocate his interests. The Board did not
violate his rights to due process by prohibiting him from appearing by telephone.
Similarly, Markham argues that the Board should have considered his late-
filed supplemental documents. But he was given the opportunity to present such
documentary evidence in support of his claims in a timely manner. The Board even gave
him an extended deadline to submit any documents he wanted considered on appeal.
And although he suggests that his late-filed documents did not cause any prejudice, the
Board had discretion to choose whether to consider them.63 The Board did not violate
60 3 Alaska Administrative Code (AAC) 135.110(a).
61 KIBC 3.35.050(C)(1), (4).
62 See Griswold v. Homer Bd. of Adjustment , 426 P.3d 1044, 1045 (Alaska
2018) ("[P]rocedural due process under the Alaska Constitution requires notice and
opportunity for hearing appropriate to the nature of the case." (alteration in original)
(quoting Price v. Eastham, 75 P.3d 1051, 1056 (Alaska 2003))); see also Church, 973
P.2d at 1130 (holding summary adjudication satisfied procedural due process in appeal
of PFD denial).
63 KIBC 3.35.050(E)(5) provides:
(continued...)
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Markham's rights to due process by electing not to do so.
To the extent that Markham argues his rights to due process were violated
because the Board lacked authority to rule on the constitutionality of former KIBC
3.35.080(D), this argument is waived for inadequate briefing. 64
Accordingly, the Board did not violate Markham's rights to due process.
F. All Other Arguments Are Abandoned By Inadequate Briefing.
To the extent that Markham alleges that the Borough assessor was biased,
that the superior court abused its discretion by failing to supplement the record with an
affidavit from a representative he sent to the Board hearing, that the Board wrongly
prohibited Markham'srepresentativefromadvocating on hisbehalfat theBoard hearing,
and that the Borough attorney's communications with the Borough clerk violated due
process, these arguments are abandoned by inadequate briefing. Markham did not argue
or provide support for these issues in his briefing.
G. The Superior Court Did Not Address AS 09.60.010 Or Make The
Requisite Factual Findings To Determine Attorney's Fees.
After the superior court dismissed Markham's 2013 appeal, the Board
requested full fees and costs as a sanction for Markham's extensive filings and delays.
63 (...continued)
The appellant must submit to the assessor's office by
April 15th all documentary evidence in their possession
which they wish to be considered and which is relevant to the
resolution of the appeal. . . . The board of equalization may
in its discretion decline to accept documents offered at the
hearing which should have been provided by April
15th. . . . Prior to the board meeting, the appellant and
assessor may agree to an extension of time for the production
of evidence.
64 See Windel v. Carnahan, 379 P.3d 971, 980 (Alaska 2016).
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The superior court did not award full fees nor did it suggest that its award of partial fees
and costs was a sanction, but rather awarded 20% of fees and costs under Appellate Rule
65
508(e). However, the superior court did not address Markham's claim that he was a
66
While the
constitutional litigant exempt from attorney's fees under AS 09.60.010(c).
case was dismissed for failure to prosecute, the underlying claims were constitutional
claims of equal protection, travel, privacy, and due process. Because he raised
constitutional claims, Markham may have been shielded by AS 09.60.010(c) unless the
court determined he had a sufficient economic incentive to bring his claims. We
therefore vacate the superior court's award of attorney's fees and remand for the superior
court to address the issue pursuant to AS 09.60.010.
V. CONCLUSION
We AFFIRM the superior court's dismissal of the 2013 appeal and denial
of the 2014 appeal on the merits, but VACATE the superior court's award of attorney's
fees and REMAND for further proceedings on this issue.
65 This rule has been modified since the superior court's decision in 2015.
66
AS 09.60.010(c)(2) states:
In a civil action or appeal concerning the establishment,
protection, or enforcement of a right under the United States
Constitution or the Constitution of the State of Alaska, the
court . . . may not order a claimant to pay the attorney fees of
the opposing party devoted to claims concerning
constitutional rights if the claimant . . . did not prevail in
asserting the right, the action or appeal asserting the right was
not frivolous, and the claimant did not have sufficient
economic incentive to bring the action or appeal regardless of
the constitutional claims involved.
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