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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Schikora v. Alaska Dept. of Revenue (8/25/00) sp-5311

Schikora v. Alaska Dept. of Revenue (8/25/00) sp-5311

     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.


             THE SUPREME COURT OF THE STATE OF ALASKA


FRED J. SCHIKORA,             )
                              )    Supreme Court No. S-8972
               Appellant,     )  
                              )    Superior Court No.
     v.                       )    4FA-96-2756 CI
                              )
STATE OF ALASKA, DEPARTMENT   )    O P I N I O N
OF REVENUE,                   )
                              )    [No. 5311 - August 25, 2000]   
               Appellee.      )    
______________________________)    



          Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
                   Mark I. Wood, Judge pro tem.


          Appearances:  Michael A. MacDonald, Downes,
MacDonald, & Levengood, P.C., Fairbanks, for Appellant.  Linda T.
McKinney, Assistant Attorney General, Fairbanks, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.


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


          BRYNER, Justice.


I.   INTRODUCTION
          Although Fred Schikora maintained his primary home in
Alaska, work and leisure often took him outside Alaska.  The
Department of Revenue withheld his permanent fund dividends for
1992, 1993, and 1994 because the absences he reported exceeded
those allowed under former AS 43.23.005(a), AS 43.23.095(8), and
their implementing regulations.  Schikora made timely appeals of
those decisions, but a Senior Revenue Hearing Officer and the
superior court upheld the department's decisions.  
          Schikora appeals.   The crux of his argument is that
allowable absence rules apply only to Alaskans who apply for a
permanent fund dividend "absentee," i.e., from outside the state. 
Because we find that the superior court interpreted the permanent
fund dividend statute correctly, we affirm.
II.  FACTS AND PROCEEDINGS
          The Permanent Fund Dividend (PFD) program offers
dividends to qualifying Alaska residents.  At the times relevant to
this appeal, PFD residency was defined by former AS 43.23.095(8)
and by former 15 Alaska Administrative Code (AAC) 23.163. 
Specifically, the statutory definition of residency required
physical presence in the state, but allowed exceptions for
education, military service, and the like.  By regulation, the
department permitted absences for up to 180 days per year for any
reason consistent with an intent to remain permanently in Alaska.
[Fn. 1] 
          Fred Schikora claims to have lived in Alaska since 1945. 
While he had many ties to the state, he spent much of his time
outside Alaska, particularly in Mexico and South America.  His 1992
and 1993 dividend applications reported absences in excess of 180
days. [Fn. 2]  Nevertheless, he was in Alaska when he mailed those
applications. [Fn. 3]  Because "business" and "vacation" are not
allowed absences under former AS 43.23.095(8), the only absences he
claimed that might not affect his PFD eligibility were medical
absences claimed for the 1994 qualifying year. 
     A.   Schikora's 1992 and 1993 Applications
          Schikora's applications for 1992 and 1993 dividends were
denied by the department because Schikora was Outside for 196 days
during the 1992 qualifying year and 212 days during the 1993
qualifying year.  He appealed those denials, and was ultimately
granted full, formal administrative hearings.
          The revenue hearing officer considered and rejected
Schikora's argument that, since he was a state resident for general
purposes under AS 01.10.005, his PFD application should not be
reviewed for allowable absences since he was present in Alaska on
the day he applied.  The hearing officer went on to review
Schikora's history of absences for the 1992 and 1993 qualifying
years:
          [I]t appears that the Applicant always intends
to return to Alaska from his frequent trips, but he does not intend
to remain permanently in the state.  Instead, he intends to return
to Alaska so that he may leave again.  Although the vast majority
of residents intend to leave the state for vacation or other
reasons, on perhaps an annual basis, the cumulative 180-day rule is
effective in distinguishing between those who are absent
temporarily and those who are absent more often than not. 
The hearing officer concluded that the vacation and business
reasons for Schikora's trips were not allowable under former
AS 43.23.005(a)(1993) or the applicable regulations and affirmed
the denial of Schikora's dividend. [Fn. 4] 
     B.   1994 Allowable Absence Claim
          In his 1994 PFD application, Schikora reported 237 days
of cumulative absence.  Of these, he claimed that 178 were for
continuous medical treatment.  The department denied this
application because Schikora failed to substantiate his claim of
continuous treatment; his application indicated only a few
consultations with various doctors.  Schikora pursued his appeal
rights and ultimately sought a formal hearing. 
          While that hearing was pending, the PFD Division moved
for summary adjudication of the administrative proceeding.  Its
affidavit offered Schikora's applications as evidence that either
(1) Schikora was outside Alaska for more than 180 days and could
not prove a medical absence or (2) his absence in addition to the
claimed medical absence exceeded the forty-five days allowed under
former 15 AAC 23.163(c)(16)(C).  In either case, the division
claimed that denial was proper.
          Schikora's affidavit in response to the summary
adjudication motion mirrored his legal arguments and did not
dispute the department's facts.  On the basis of the parties'
affidavits and memoranda, the hearing officer granted the PFD
Division's motion for summary adjudication.
     C.   The Appeal Before Judge Wood
          The superior court heard Schikora's appeal of the
administrative decisions.  After briefing and oral arguments, Judge
Wood affirmed the department rulings but applied a different
interpretation of the PFD statute.  Schikora now appeals the
superior court's decision.
III. DISCUSSION
     A.   Standard of Review
          In reviewing the decision of a superior court sitting as
an intermediate court of appeal, we apply our independent judgment
without deference to the superior court's decision. [Fn. 5]  The
Department of Revenue hearing officer's final denial of Schikora's
dividend was an administrative determination, which we review
independently. [Fn. 6]  The facts of this case are, for the most
part, undisputed.  We apply the substantial evidence test to the
few factual questions presented. [Fn. 7]
     B.   The AS 43.23.005 Residency Requirements

          Former AS 43.23.005(a) set out the PFD eligibility
requirements that govern this case.  
          (a)  An individual is eligible to receive one
permanent fund dividend each year in an amount to be determined
under AS 43.23.025 if

               (1)  the individual applies to the
department;

               (2)  on the date of application the
individual is a state resident;

               (3)  the individual was a state
resident for at least the calendar year immediately preceding
January 1 of the current dividend year;

               (4)  the individual has been
physically present in the state at some time during the prior two
calendar years before the current dividend year; and

               (5)  the individual is . . . a
citizen of the United States [or a qualified alien].

It is undisputed that Schikora met requirements one, four, and
five.  Thus, this case turns on whether he qualified as a "state
resident" as that term applied to requirements two and three.
          "State resident" is defined for general purposes at
AS 01.10.055, [Fn. 8] and again for dividend eligibility at former
AS 43.23.095.  As we recognized in Brodigan v. State of Alaska,
Department of Revenue, "the residency requirement for PFD
eligibility may differ from other residency requirements." [Fn. 9] 
Under former AS 43.23.095(8) "state resident" for the purpose of
dividend eligibility meant:
          an individual who is physically present in the
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 for any of the following reasons:

          (A)  vocational, professional, or other
specific education for which a comparable program was not
reasonably available in the state;

          (B)  secondary or postsecondary education;

          (C)  military service;

          (D)  medical treatment;

          (E)  service in Congress;
          (F)  other reasons which the commissioner may
establish by regulation; or

          (G)  service in the Peace Corps.[ [Fn. 10]]

          All of Schikora's 1992 and 1993 absences were for
business or leisure, and therefore are not allowable absences. 
Likewise, Schikora's 1994 absences were disallowed for failure to 
substantiate his claimed medical absences.  Furthermore, these
absences in all three years exceeded the blanket allowance provided
by regulation at former 15 AAC 23.163(c)(15)(A), which permitted
absences for any reason "consistent with the individual's intent to
remain a resident provided the absence or cumulative absences do
not exceed . . . 180 days if the individual is not claiming any of
the [other allowable absences]." [Fn. 11]  Schikora does not
dispute that his reasons for being absent in 1992 and 1993 do not
qualify as allowable absences under subparagraphs (A)-(G) of former
AS 43.23.095(8) or its implementing regulations.  Rather, he claims
that he met AS 43.23.095(8)'s definition of "state resident" by
being "physically present in the state with the intent to remain
permanently in the state under the requirements of AS 01.10.055" on
the date he applied for the disputed PFDs.  
          Schikora contends that, by being a state resident on his
date of application, he satisfied former AS 43.23.005(a)(2), which
makes an individual eligible for a PFD only if "on the date of
application the individual is a state resident . . . ."  Although
Schikora acknowledges that former AS 43.23.005(a)(3) further
conditioned eligibility on an applicant's being "a state resident
for at least the calendar year immediately preceding January 1 of
the current dividend year," he reasons that he met this requirement
because he had been an Alaska resident since 1945.  Characterizing
subparagraph (a)(3) as merely a "durational residency requirement
for the issuing of the first dividend," Schikora insists that this
provision did not literally require him to be present or excusably
absent throughout the calendar year immediately preceding his
application.  Therefore, Schikora argues, the allowable absence
provisions of former AS 43.23.095(8) are irrelevant to his case.  
          But Schikora's reasoning is unpersuasive.  As the
superior court found, his argument underestimates AS 43.23.005's
requirements:
          While it is true . . . that the allowable

absence provisions of AS 43.23.095(8) do not apply to an individual
who is physically present in the state with the requisite intent on
the date of application under AS 4[3].23.005(a)(2), the allowable
absence provisions may apply to the same individual under paragraph
(a)(3) of the same statute.  The statute requires that, in order to
qualify for a dividend, the individual must also be a  state
resident for at least the calendar year preceding the application
period.  Applying the definition of "state resident" to paragraph
(a)(3) creates the requirement that the individual be physically
present in the state with the requisite intent for the calendar
year or absent from the state with the requisite intent for an
allowable reason.  Since Schikora was not physically present for
the entire qualifying period for any of his PFD applications in
question, then he must account for his absences to determine if
those absences are allowable to maintain his eligibility for the
annual dividend.  This is true even if his residency was an
established fact in previous years.[ [Fn. 12]] 
          As interpreted by the superior court, subparagraphs
(a)(2) and (a)(3) work in tandem and serve complementary goals: by
requiring an applicant to be a resident upon applying for the
dividend, subparagraph (a)(2) addresses the issue of current
residency, thereby ensuring individuals who are no longer current
residents cannot apply for PFDs; and by also requiring the
applicant to be a resident for the full calendar year immediately
preceding the application, subparagraph (a)(3) addresses the issue
of residency during the year for which the applicant asks to be
paid, thereby ensuring that each year of payment reflects a full
year of residency, that is, either actual presence within the state
or allowable absence.  
          In our view, the superior court's reading of these
provisions is sensible and correct.  Schikora offers no convincing
argument against this reading.  First, he argues that construing
AS 43.23.005(a)(3) to require long-time residents to live
continuously in the state for the year preceding each application
would render AS 43.23.005(a)(4) redundant.  Subparagraph (a)(4)
requires an applicant to be "physically present in the state at
some time during the prior two calendar years before the current
dividend year[.]"  Schikora reasons that there would be no need for
this language if subparagraph (a)(3) required physical presence
during the year preceding the dividend.
          But Schikora's reasoning fails to acknowledge that under
the allowable absences provisions of former AS 43.23.095(8) an
applicant could be Outside for many years, yet still meet
subparagraph (a)(3)'s prior-year continuous residency requirement. 
For example, a student who leaves the state to attend a four-year
college could conceivably claim four years of continuous residency
under subparagraph (a)(3) without ever returning to Alaska. 
Subparagraph (a)(4) deals with this possibility by ensuring that
those who spend long periods outside the state on allowable
absences maintain some physical contact with Alaska.  Because this
provision would continue to serve as a needed backstop controlling
the abuse of long-term, allowable absences, the superior court's
interpretation of subparagraph (a)(3) does not render subparagraph
(a)(4) redundant.
          Schikora's second argument is that the legislative
history of the dividend program supports his interpretation of
subparagraph (a)(3).  On the contrary, the legislative history
supports the department's position.  The original PFD act [Fn. 13]
connected PFD eligibility to state residency during the six months
that preceded the application.
          Sec. 42.23.005.  ELIGIBILITY.  (a) An

individual is eligible to receive one permanent fund dividend each
year [if] on the date of application the individual (1) is a state
resident; and (2) has been a state resident for a period of at
least six consecutive months immediately preceding the date of
application.[ [Fn. 14]]
This language conclusively demonstrates that the legislature
intended to base PFD eligibility on recent history of residency
rather than on residency in the remote past.  Therefore, we find
that the superior court correctly interpreted former AS 43.23.005
as it applied to Schikora. [Fn. 15] 
     C.   Schikora's Regulation Promulgation Argument
          Schikora next argues that, because of procedural errors
in its promulgation, 15 AAC 23.163 was not properly adopted and
must be invalidated.  That regulation is the source of the 180-day
rule, which allows Alaskans 180 days of absence from the state
without jeopardizing their PFD eligibility. [Fn. 16]
          Assuming Schikora is correct and the department's
regulations were improperly adopted, invalidating them would not
help his case.  The 180-day rule liberalizes the absences otherwise
permitted under former AS 43.23.095(8).  If we agreed with Schikora
and suspended that rule, he still would not qualify for the
disputed dividends because his absences were not among those
allowed by statute.  Therefore, because Schikora seeks a remedy
that would not help his case, his regulatory arguments are moot.
     D.   Constitutional Claims 
          We recently decided Church v. State, Department of
Revenue, [Fn. 17] a case that disposes of Schikora's first two
constitutional claims.  In Church, an Alaskan left the state for
274 days to care for a dying relative. [Fn. 18]  Like Schikora,
Church claimed that the PFD rules denied him due process of law and
denied him equal protection under the Fourteenth Amendment.  As in
Church, we find no merit to those claims.  Furthermore, Schikora's
commerce clause argument has no merit.
          1.   The PFD regulations do not deny Schikora due
process of law.

          Schikora argues that "the regulations as applied seek to
deny Schikora his residence status and therefore his PFD solely
because he exercised his fundamental right to travel."  We
addressed this issue squarely in Church.  There, we found that
there was "no violation of Church's right to travel" caused by
applying the PFD residency test.
          The infringement on Church'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 receive a dividend
if he doesn't meet the qualifications.  Additionally, . . . the
regulations and statutes in question bear a fair and substantial
relationship to the state's legitimate objective of efficiently
awarding PFDs only to permanent residents.[ [Fn. 19]]
Schikora fails to distinguish or even consider Church, which we
find to be exactly analogous to this case.  Nothing in his
recapitulation of due process principles rebuts the Church
precedent.  Schikora's due process rights were not denied.
          2.   The PFD regulations do not deny Schikora equal
protection.

          Schikora claims that the PFD regulations deny him equal
protection.  We review equal protection claims on a sliding scale,
invoking closer scrutiny for more important interests. [Fn. 20]  In
Church, we found that "PFDs represent an economic interest" and
that "[e]qual protection claims concerning their denial are
reviewed under minimum scrutiny." [Fn. 21]  Furthermore, we held
that "even though an equal protection claim to a PFD involved the
right to travel, it did not necessarily trigger heightened
scrutiny." [Fn. 22]  Thus, the question in Church was whether the
180-day rule was "designed to achieve a legitimate governmental
objective," and whether its means "bear a 'fair and substantial'
relationship to the accomplishment of that objective." [Fn. 23] 
          We concluded that the objective of the 180-day rule --
"to ensure that only permanent residents receive dividends" [Fn.
24] -- is legitimate.  Further, "allowing only enumerated 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." [Fn. 25]  Therefore, we
affirmed the PFD denial in Church.  Schikora offers no reason to
distinguish his case from this direct precedent and we see none;
the 180-day rule did not deny him equal protection.
          3.   Schikora's commerce clause claim is misplaced.
          Schikora's last constitutional argument is that the 180-
day rule violates the interstate commerce clause. [Fn. 26] 
Specifically, he argues that by conditioning his receipt of a PFD
on 180 days of physical presence in Alaska, the PFD statute and its
regulations "prohibit[ed] interstate travel and therefore
commerce."  Since the regulation of interstate commerce is
Congress's sole purview under the commerce clause, Schikora argues
that the denial of his PFD was beyond the state's power.
          In Pike v. Bruce Church, Inc., the United States Supreme
Court described this general rule for determining the validity of
state statutes that affect interstate commerce:
          Where the statute regulates even-handedly to

effectuate a legitimate local public interest, and its effects on
interstate commerce are incidental, it will be upheld unless the
burden imposed on such commerce is clearly excessive in relation to
the putative local benefits.[ [Fn. 27]]
Schikora does not claim, nor do we see, any way in which PFD
residency requirements regulate interstate commerce directly. 
Thus, whatever effect the PFD statute may have on interstate
commerce is incidental to the state's legitimate goal of issuing
PFDs to bona fide Alaska residents only.  Schikora's claims that
the PFD eligibility regulations "prohibit" or "have a chilling
effect" on interstate travel are entirely conclusory and
unsubstantiated in the record.  In contrast, the benefits of
accurately distributing PFDs to bona fide residents are obvious and
are supported by precedent. [Fn. 28]  Balancing the benefits of an
accurate PFD regime against the unsubstantiated, incidental burdens
on interstate commerce leads us to conclude that the state's scheme
for granting PFDs on the basis of demonstrated residency must be
upheld.
          Furthermore, in Carlson v. State, Commercial Fisheries
Entry Commission, we recognized the difference between financial
burdens predicated on interstate commerce and those predicated on
residency. [Fn. 29]  In Carlson, we upheld a commercial fishing
license system that charged out-of-state fishers three times what
locals were charged.  In doing so, we refused to analyze the fee
differential under the dormant commerce clause because the fees did
not involve the flow of articles in commerce.
          [T]he fee differentials at issue in this case
are not predicated upon the movement of articles of commerce across
state lines, but rather upon the residency status of those applying
for permits.  The Supreme Court has consistently analyzed statutes
which purportedly classify on the basis of residency under the
Privileges and Immunities or the Equal Protection Clauses.[ [Fn.
30]]  
As in Carlson, the classification in the present case turns on
residency rather than the flow of commerce across state lines.  For
these reasons, we find no violation of the commerce clause.
     E.   The Factual Findings

          Schikora's last points on appeal concern the factual
basis for the hearing officer's decision to withhold the disputed
PFDs.  Schikora's arguments are based on his legal interpretation
of how PFD residency is defined, an interpretation we have
rejected.  Under the residency definition at former
AS 43.23.095(8), the hearing officer's decision should be upheld if
there was substantial evidence to support a finding that Schikora
was absent from the state for more than 180 days without a reason
allowed by statute or regulation.  Since Schikora does not dispute
that his absences in 1992 and 1993 were for business and leisure --
neither of which qualify as allowable absences -- and since he does
not dispute that those absences totaled more than 180 days, we find
that there was substantial evidence in the record to support the
denials.
          Likewise, the facts concerning Schikora's 1994 dividend
were not disputed.  Schikora admitted to the length and nature of
the medical treatments he underwent in 1994.  It was not disputed
that his days in treatment totaled less than a week and that he
spent 235 days outside Alaska.  Thus, as a matter of law, the
hearing officer could find that Schikora did not meet the
definition of "state resident" in former AS 43.23.095(8).  Summary
judgment was appropriate.
IV.  CONCLUSION
          The decision of the superior court is AFFIRMED.


                            FOOTNOTES


Footnote 1:

     See 15 AAC 23.163(c)(15)(A) (1993). 


Footnote 2:

     Schikora reported these 1992 qualifying year absences:

          Feb. 27, 1991 - May 14, 1991
               (75 days for business reasons)
          May 24, 1991 - June 11, 1991
               (18 days for vacation)
          Aug. 18, 1991 - Sep. 1, 1991
               (14 days for vacation)
          Nov. 1, 1991 - Dec. 2, 1991
               (31 days for vacation)
          Jan. 2, 1992 - Mar. 31, 1992
               (89 days for business reasons)

For 1993, he reported these absences:

          Jan. 2, 1992 - May 20, 1992
               (138 days for business)
          June 12, 1992 - June 27, 1992
               (15 days for family visit)
          Oct. 12, 1992 - Dec. 10, 1992
               (59 days for vacation)

For 1994, he reported these absences:

          Jan. 1, 1993 - June 3, 1993
               (153 days claimed medical)
          Aug. 2, 1993 - Aug. 27, 1993
               (25 days claimed medical)
          Oct. 18, 1993 - Dec. 16, 1993
               (57 days business/vacation)


Footnote 3:

     Schikora applied on June 30, 1992, from Fairbanks; June 29,
1993, from Fairbanks; and Jan. 6, 1994, from Fairbanks. 


Footnote 4:

     There were statutory and regulatory changes between 1992 and
1993, but Schikora's arguments are based on statutory elements that
did not change.  


Footnote 5:

     See Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746
P.2d 896, 903 (Alaska 1987).


Footnote 6:

     See Church v. State, Dep't of Revenue, 973 P.2d 1125, 1127
(Alaska 1999) (citing Handley v. State, Dep't of Revenue, 838 P.2d
1231, 1233 (Alaska 1992)).  We went on to explain:

          We apply the substitution of judgment standard
to issues of law not involving agency expertise, such as statutory
interpretation and constitutional claims.  See Madison v. Alaska
Dep't of Fish and Game, 696 P.2d 168, 173 (Alaska 1985).  However,
this court "will not substitute [its] judgment for that of the
agency with respect to the efficacy of [a] regulation nor review
the 'wisdom' of a particular regulation."  State, Dep't of Revenue
v. Cosio, 858 P.2d 621, 624 (Alaska 1993) (citing Alaska Int'l
Indus. v. Musarra, 602 P.2d 1240, 1245 n.9 (Alaska 1979)).

Id. (alteration in original).


Footnote 7:

     This court has defined substantial evidence as "such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.  The [agency's] decision need not be the only
possible solution to the problem, for it is not the function of the
court to reweigh the evidence or choose between competing
inferences, but only to determine whether such evidence exists." 
Bostic v. State, Dep't of Revenue, Child Support Enforcement Div.,
968 P.2d 564, 567 (Alaska 1998) (quoting Interior Paint Co. v.
Rodgers, 522 P.2d 164, 170 (Alaska 1974) (alteration in Bostic)).


Footnote 8:

     AS 01.10.055 reads:

          (a)  A person establishes residency in the
state by being physically present in the state with the intent to
remain in the state indefinitely and to make a home in the state.

          (b)  A person demonstrates the intent required
          under (a) of this section

               (1)  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


               (2)  by providing other proof of
intent as may be required by law or regulation, which may include
proof that the person is not claiming residency outside the state
or obtaining benefits under a claim of residency outside the state.

          (c)  A person who establishes residency in the
state remains a resident during an absence from the state unless
during the absence the person establishes or claims residency in
another state, territory or country, or performs other acts or is
absent under circumstances that are inconsistent with the intent
required under (a) of this section to remain a resident of this
state.


Footnote 9:

     900 P.2d 728, 733 n.12 (Alaska 1999) (quoting the Department
of Revenue's explanation that "[e]ligibility for PFDs includes
meeting a definition of residency tied to physical contact to the
state, which may be more difficult to meet than the definition of
residency for other purposes").


Footnote 10:

     Former AS 43.23.095(8).  That statute also allowed the
department to create additional allowable absences by regulation. 
Under this authority, the department promulgated 15 AAC
23.175(d)(1992) and 15 AAC 23.163(c)(1993).  Those catchall
regulations allowed Alaskans who spent time Outside to receive a
PFD if: (1) the reason for their absence was consistent with an
intent to remain a resident, (2) they did not claim one of the
specific allowable absences (e.g., military service, education),
and (3) their cumulative absences in the qualifying year totaled no
more than 180 days.  This is often referred to as the 180-day rule.


Footnote 11:

     Former 15 AAC 23.163(c)(15)(A).


Footnote 12:

     Schikora v. State, 4FA-96-2756 CI, Opinion at 10-11 (Alaska
Super., January 14, 1999) (footnote omitted).


Footnote 13:

     Ch. 102, SLA 1982.


Footnote 14:

     Id. (emphasis added).


Footnote 15:

     Because we uphold the superior court's interpretation, we need
not consider Schikora's claim that the department's implementing
regulations are inconsistent with Schikora's interpretation of the
statute. 


Footnote 16:

     See 15 AAC 23.163(c)(15)(A).


Footnote 17:

     973 P.2d 1125 (Alaska 1999).


Footnote 18:

     See id. at 1127.


Footnote 19:

     Id. at 1131 (citations omitted).


Footnote 20:

     State v. Erickson, 574 P.2d 1, 11-12 (Alaska 1978).


Footnote 21:

     Church, 973 P.2d at 1130.


Footnote 22:

     Id. (citing Brodigan v. Alaska, Dep't of Revenue, 900 P.2d
728, 734 n.13 (Alaska 1995)).


Footnote 23:

     Id.


Footnote 24:

     Id.


Footnote 25:

     Id. at 1130-31.


Footnote 26:

     U.S. Const. art. I, sec. 8.


Footnote 27:

     397 U.S. 137, 142 (1970).


Footnote 28:

     See Church, 973 P.2d at 1130 (holding that accurate
distribution of PFDs is a legitimate state purpose supported by a
statutory and regulatory scheme that bears a fair and substantial
relationship to achieving that purpose).


Footnote 29:

     919 P.2d 1337 (Alaska 1996), cert. denied, 519 U.S. 1101
(1997). 


Footnote 30:

     Id. at 1340-41.  Our decision in Carlson suggests that
Schikora's claim could be considered under the Privileges and
Immunities Clause.  Schikora failed to brief such a claim, but even
if he had, that approach would be unavailing.  The PFD applicant's
"burden" of being physically present in Alaska for more than 185
days per year is borne equally by all applicants, regardless of
their recent previous state citizenship.  Cf. Saenz v. Roe, 526
U.S. 489, 504-06 (1999) (overturning California law that limited
recent entrants to the state to the welfare benefits they could
have received in the state they came from for one year).  Moreover,
as discussed in our due process and equal protection PFD decisions,
(see, e.g., Church, 973 P.2d at 1129-32), the purpose of that
"burden" is to fairly distinguish the residential intent of those
who seek PFDs.  Since PFDs are cash payments, unrelated to any
condition other than residency, they are the kind of "readily
portable benefit" for which states may apply durational residency
requirements to establish an applicant's "bona fide" intent to be
a state resident.  See Saenz, 526 U.S. at 504-05.  Similar
situations are presented by residency requirements related to the
receipt of in-state tuition benefits.   "The State can establish
such reasonable criteria for in-state status as to make virtually
certain that students who are not, in fact, bona fide residents of
the State, but have come there solely for educational purposes,
cannot take advantage of the in-state rates."  Vlandis v. Kline,
412 U.S. 441, 453-54 (1973) (emphasis added).  Alaska has a
similar, legitimate interest in seeing that only permanent
residents receive PFDs.