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Brause v Alaska Dept of Health & Social Services (04/17/2001) sp-5392

     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.


                              )    Supreme Court No. S-9376
             Appellants,      )
                              )    Superior Court No.
     v.                       )    3AN-95-6562 CI
             Appellees.       )    [No. 5392 - April 17, 2001]

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

          Appearances: Robert H. Wagstaff, Anchorage,
for Appellants.  John B. Gaguine, Assistant Attorney General, Bruce
M. Botelho, Attorney General, Juneau, for Appellees.

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

          MATTHEWS, Justice.
          BRYNER, Justice, dissenting.

          The underlying issue in this case is whether Jay Brause
and Gene Dugan, a same-sex couple who are precluded from marrying,
can be denied benefits which are by law available only to married
people.  The superior court dismissed this case as to this issue,
based on the State's contention that Brause and Dugan's complaint
did not challenge the denial of any specific benefit to them and
they did not show that they had standing to challenge the denial of
any specific benefit.  The court's dismissal was "without prejudice
to subsequent filings" "where a particular right is at issue and
being challenged -- or a particular benefit."  Without first
seeking to amend their complaint to allege that they were denied
specific benefits, Brause and Dugan appeal.  We affirm because the
superior court did not abuse its discretion in concluding that no
actual controversy ripe for adjudication had been pleaded. 
          Brause and Dugan's complaint contains three counts.  The
first two counts challenge on state constitutional grounds the
State's refusal under existing Alaska statutes to grant them a
marriage license.  The adoption of article I, section 25 of the
Alaska Constitution, effective January 3, 1999, mooted these
counts.  Now, as a matter of state constitutional law, "[t]o be
valid or recognized in this State, a marriage may exist only
between one man and one woman." [Fn. 1] 
          Count 3 challenges, among other things, on state and
federal constitutional grounds AS 25.05.013(b), which provides:  "A
same-sex relationship may not be recognized by the state as being
entitled to the benefits of marriage."  Count 3 does not allege
that appellants have been denied any specific benefits.  It alleges
generally that 
          .013 violate[s] the Constitutions of the State
of Alaska and the United States inasmuch as persons of the same sex
are denied the due process of law, equal protection of law,
recognition of their privacy, full faith and credit, and the equal
protection of the laws as guaranteed by the Constitutions of Alaska
and the United States.

This allegation is followed by a request for a declaration that
section .013 "violates the Constitutions of the State of Alaska and
the United States."
                        STANDARD OF REVIEW
          Alaska Statute 22.10.020(g) grants to superior courts the
power to issue declaratory judgments in cases of actual
controversy.  The language of the statute makes it explicit that
whether to issue a declaration is a discretionary decision
committed to the superior court. [Fn. 2]  This court has previously
noted that "judicial discretion was intended to play a significant
role in the administration [of the declaratory judgment act]." [Fn.
3]  Therefore we will reverse a superior court's dismissal of a
declaratory judgment action which is based on prudential grounds
only when we find that the superior court abused its discretion.
          Under AS 22.10.020(g) the superior court, "[i]n case of
an actual controversy . . . upon the filing of an appropriate
pleading, may declare the rights and legal relations of an
interested party seeking the declaration . . . ."  This statute
explicitly requires "an actual controversy."   
          The "actual controversy" language in AS 22.10.020(g)
reflects a general limitation on the power of courts to entertain
cases; similar language is used in federal law. [Fn. 4]  It
encompasses a number of more specific reasons for not deciding
cases, including lack of standing, mootness, and lack of ripeness.
[Fn. 5]  Although these are interrelated doctrines, they also have
distinct elements. [Fn. 6]  We believe that it was not an abuse of
discretion to dismiss the complaint in this case on lack-of-
ripeness grounds.  
          The ripeness doctrine requires a plaintiff to claim that
either a legal injury has been suffered or that one will be
suffered in the future. [Fn. 7]  The degree of immediacy of a
prospective injury needed to satisfy the ripeness doctrine has not
been systematically explored in our case law.  Instead, our cases
contain statements such as "'[a]dvisory opinions' are to be
avoided," [Fn. 8] or "[t]he ripeness doctrine forbids judicial
review of 'abstract disagreements,'" [Fn. 9] or "courts should
decide only 'a real, substantial controversy,' not a mere hypothe-

tical question." [Fn. 10]  This lack of particularity is not
surprising, for there is no set formula that can identify whether
a case is or is not ripe for decision.  Instead, a number of
factors must be considered.  
          According to Federal Practice and Procedure, a leading
text on federal jurisdiction, the central concern of ripeness "is
whether the case involves uncertain or contingent future events
that may not occur as anticipated, or indeed may not occur at all."
[Fn. 11]  This text goes on to set out both abstract and practical
formulations of ripeness.  The former is "whether . . . there is a
substantial controversy, between parties having adverse legal
interests, of sufficient immediacy and reality to warrant the
issuance of a declaratory judgment." [Fn. 12]  The more practical
formulation is said to be: "[R]ipeness turns on 'the fitness of the
issues for judicial decision' and 'the hardship to the parties of
withholding court consideration.'" [Fn. 13]
          Federal Practice and Procedure discusses the factors
which underlie the ripeness doctrine:
          The central perception is that courts should
not render decisions absent a genuine need to resolve a real
dispute.  Unnecessary decisions dissipate judicial energies better
conserved for litigants who have a real need for official
assistance.  As to the parties themselves, courts should not
undertake the role of helpful counselors, since refusal to decide
may itself be a healthy spur to inventive private or public
planning that alters the course of possible conduct so as to
achieve the desired ends in less troubling or more desirable
fashion.  Defendants, moreover, should not be forced to bear the
burdens of litigation without substantial justification, and in any
event may find themselves unable to litigate intelligently if they
are forced to grapple with hypothetical possibilities rather than
immediate facts.  Perhaps more important, decisions involve
lawmaking.  Courts worry that unnecessary lawmaking should be
avoided, both as a matter of defining the proper role of the
judiciary in society and as a matter of reducing the risk that
premature litigation will lead to ill-advised adjudication.  These
concerns translate into an approach that balances the need for
decision against the risks of decision.  The need to decide is a
function of the probability and importance of the anticipated
injury.  The risks of decision are measured by the difficulty and
sensitivity of the issues presented, and by the need for further
factual development to aid decision.[ [Fn. 14]]

          In the present case Brause and Dugan claim on appeal that
AS 25.05.013(b) denies them at least 115 separate rights which are
afforded to people who are able to marry.  These include, Brause
and Dugan argue, "the denial of health coverage, forms of
insurance, equal participation in pension and retirement plans, as
well as testamentary and property rights."  There is no doubt that
at least in some circumstances married partners have rights that
are denied unmarried domestic partners, and the subjects
specifically identified by Brause and Dugan may be areas where
inequality exists.  But lacking in Brause and Dugan's brief is any
assertion that they have been or in their current circumstances
that they will be denied rights that are available to married
          The State argues that AS 25.05.013(b) is a "purely
symbolic" statement lacking in "independent legal significance." 
The State contends that AS 25.05.013(b) does not deprive Brause and
Dugan of rights, rather "what excludes [them] from the '115
separate rights' and the 'benefits of marriage' is the language of
each of the statutes . . . creating rights and benefits based upon
marital status . . . ."  It is one or more of these statutes that
may be challenged, the State continues, but the challenge must be
mounted by parties who are substantially injured by the particular
statute in question.  Further, in such a case, the particular
statute must be examined independently under the "sliding scale"
analysis used by Alaska courts to test the constitutionality of
statutes under the equal rights clause of the Alaska Constitution,
and "[s]uch analysis cannot be applied to AS 25.05.013(b), the
symbolic enactment."  The State describes by contrast a more
recently filed case pending in the superior court in Anchorage in
which a number of same-sex couples, one of whom is employed by the
State, allege that they are denied specific health insurance and
pension benefits in violation of their constitutional rights to
equal protection. 
          Given the level of abstraction of this case as presented,
we believe that many of the considerations on which the doctrine of
ripeness is based counsel in favor of dismissal.  Without more
immediate facts it will be difficult to deal intelligently with the 
legal issues presented.  The issues themselves are difficult,
presenting a case of first impression in Alaska.  In order to grant
relief to Brause and Dugan, the superior court would have to
declare a statute unconstitutional.  This is, of course, a power
that courts possess.  But it is not a power that should be
exercised unnecessarily, for doing so can undermine public trust
and confidence in the courts and be interpreted as an indication of
lack of respect for the legislative and executive branches of
government.  Further, ruling on the constitutionality of a statute
when the issues are not concretely framed increases the risk of
erroneous decisions.
          As Federal Practice and Procedure puts it, the various
concerns underlying the doctrine of ripeness indicate that any
ripeness decision requires a balance of the plaintiffs' "need for
decision against the risks of decision." [Fn. 15]  To the extent
that the need to decide is a function of the probability that they
will suffer an anticipated injury, Brause and Dugan have failed to
demonstrate such a need.  The risks of decision, on the other hand,
are considerable, measured as they are "by the difficulty and
sensitivity of the issues presented, and by the need for further
factual development to aid decision." [Fn. 16]  It was not an abuse
of discretion for the superior court to conclude that the balance
weighs in favor of the conclusion that this case is not ripe for
adjudication and presents no actual controversy under AS
          The judgment of the superior court is AFFIRMED.

BRYNER, Justice, dissenting.
          I disagree with the court's conclusion that the issue in
this case is not ripe for adjudication; therefore I dissent.  This
court's standing jurisprudence indicates a willingness to
adjudicate claims where the injury claimed is but "an identifiable
trifle." [Fn. 1]  Here, Brause and Dugan's claimed injury far
exceeds the identifiable trifle necessary to give them standing and
is sufficiently imminent to make their constitutional challenge of
AS 25.05.013(b) ripe for an immediate decision. 
          I first note my opposition to the court's reliance on
federal law as the law defining the doctrine of ripeness in Alaska.
[Fn. 2]  In particular, the court turns to Federal Practice and
Procedure for guidance on ripeness, [Fn. 3] but that treatise
reviews exclusively federal law.  Our standing jurisprudence varies
significantly from that of federal courts, [Fn. 4] and our case law
counsels against reliance on federal law: "instead of looking to
federal courts, . . . this court should first look to its own
precedent." [Fn. 5]  
          This court's case law has developed the doctrine of
ripeness among the interrelated issues of standing and mootness.
[Fn. 6]  We have stated that the "basic requirement for standing in
Alaska is adversity" of legal interests and that adversity can be
satisfied by an "intangible" interest such as an "aesthetic or
environmental interest." [Fn. 7]  And we have not required that
prospective plaintiffs wait until an unavoidable injury occurs
before Alaskan courts may render a declaratory judgment. [Fn. 8]
          In Johns v. Commercial Fisheries Entry Commission we
stated that "the threat of future injury confers standing to seek
judicial aid to forestall possible harm." [Fn. 9]  There, three
applicants for fishing limited entry permits filed suit seeking a
declaratory judgment regarding the "threatened loss of their right
to enter the fishery" although none had yet been excluded. [Fn. 10] 
Rejecting a rule of inevitability of harm, we stated: "We think it
bad law and bad policy to approve a rule which shuts the courthouse
doors until . . . it may be too late to obtain meaningful judicial
relief." [Fn. 11]
          Similarly, in Benesch v. Miller we did not force a
candidate for the United States Senate to wait until after election
day to challenge a statute he believed unconstitutionally
restricted write-in candidates. [Fn. 12]  Reversing the trial
court's finding that the claim was premature, we held that "an
actual controversy exist[ed]" despite the fact that the injury had
not yet occurred. [Fn. 13]
          Moreover, our case law establishes that a challenger need
not plead specific facts of injury in order to seek review of the
constitutionality of a statute.  In Jefferson v. Asplund we
addressed declaratory relief with respect to Jefferson's challenge
of the actions of the Greater Anchorage Area Borough. [Fn. 14]  
Regarding the availability of declaratory relief to Jefferson, we
stated: "declaratory relief will be withheld when declarations are
sought concerning hypothetical or advisory questions or moot
questions.  On the other hand, declaratory relief may be sought to
determine the validity and construction of statutes and public
acts." [Fn. 15]  We then held that Jefferson's claim that an Alaska
statute was illegal was ripe without facts showing the powers of
the statute had been exercised. [Fn. 16]  Other states have reached
the same conclusion.
          The Washington Supreme Court in First Covenant Church, of
Seattle, Washington v. City of Seattle reviewed a church's claims
that Seattle's designation of a church as a landmark was
unconstitutional. [Fn. 17]  The designation prevented the church
from altering the exterior of the building or selling it without
the approval of a landmarks commission. [Fn. 18]  Seattle argued
that the church's claim was not ripe because it had not submitted
a proposal for alteration or attempted to sell the building.  The
Washington Supreme Court rejected that argument: "The record before
the court contains the factual background surrounding the
designation of First Covenant Church and no additional facts need
be developed to determine the constitutionality of that
designation." [Fn. 19]
          In Advocates for Effective Regulation v. City of Eugene,
the Oregon Court of Appeals addressed the question of whether a
coalition of hazardous substance producers had a ripe claim to a
declaratory judgment regarding a city charter amendment regulating
and assessing fees against users of hazardous substances. [Fn. 20] 
The court concluded the claim was ripe although no fee structure
had been approved.  It stated:  
          The exercise of judicial power requires a
concrete controversy that is based on present facts, not
hypothetical possibilities.  A facial challenge to the validity of
an enactment generally presents such a concrete controversy; the
question is whether the challenged enactment is valid as written,
as opposed to validly applied to a given set of facts.[ [Fn. 21]]

          Our precedent establishes that Brause and Dugan's
constitutional attack on AS 25.05.013(b) is ripe for adjudication
without a specific claim of past injury.  But, even if we apply the
federal standard for ripeness, I believe that the case presented by
Brause and Dugan meets that standard.  Although federal ripeness
jurisprudence "prevent[s] the courts . . . from entangling
themselves in abstract disagreements" [Fn. 22] where the relevant
factual situation is not adequately developed, it also recognizes
that disputes that are purely legal "will not be clarified by
further factual development" and are ripe for adjudication. [Fn.
          In Thomas v. Union Carbide Agricultural Products Co.,
thirteen pesticide manufacturing firms challenged amendments to the
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) that
required the firms to consent to binding arbitration in order to
qualify for compensation for involuntary sharing of information
required by FIFRA. [Fn. 24]  Although only one of the firms had
been subject to arbitration, the Supreme Court held that the other
firms' claims were ripe stating: "One does not have to await the
consummation of threatened injury to obtain preventative relief. 
If the injury is certainly impending, that is enough." [Fn. 25] 
And in a decision issued during its current term, the Supreme Court
has reconfirmed its adherence to this view of standing. [Fn. 26] 
There, in a pre-enforcement review of air quality standards set by
the Environmental Protection Agency (EPA) under the Clean Air Act,
the Court rejected the EPA's argument that the claim was not ripe
for review because the EPA had not implemented the standards: "The
question before us here is purely one of statutory interpretation
that would not 'benefit from further factual development of the
issues presented.'" [Fn. 27]
          Here, Brause and Dugan's claim presents a purely legal
question: whether AS 25.05.013(b) is constitutional on its face. 
Further factual development will not help this court address that
question.  Brause and Dugan do not allege that the statute is
unconstitutional as it might be applied to them in the future; they
assert that it is unconstitutional now, and so subjects them to
immediate harm.  The constitutional injury that Brause and Dugan
allege flows directly and immediately from AS 25.05.013(b)'s
categorical denial of all benefits of marriage to same-sex couples,
not from an as-yet unrealized application to them of another
statute's delineation of specific benefits.  Hence, any uncertainty
concerning whether they might eventually be denied health coverage
based on their non-spousal relationship, for example, as opposed to
being denied testamentary rights reserved to spouses, would have no
effect on the legal analysis of AS 25.05.013(b)'s
constitutionality.  Just as the Union Carbide firms' claims were
ripe without being subject to arbitration, Brause and Dugan's claim
of facial unconstitutionality is ripe for immediate adjudication,
without waiting until the provision is applied to deny them
specific benefits.
          Moreover, even assuming that the ripeness doctrine
required a facial constitutional challenge to be accompanied by an
immediate threat of unconstitutional application, Brause and
Dugan's case would meet this requirement.  To properly assess the
risk of unconstitutional application, it is important to recognize
the nature of the alleged constitutional problem.  The court
characterizes the problem as one involving the disparate treatment
of married heterosexual couples, on the one hand, and unmarried
same-sex couples, on the other:  "The underlying issue in this case
is whether . . . same-sex couple[s] who are precluded from
marrying[] can be denied benefits which are by law available only
to married people." [Fn. 28]  But Brause and Dugan's constitutional
claim does not confine itself to this form of discrimination. [Fn.
29]  What their claim more directly targets is Alaska's disparate
treatment of two similarly situated groups of unmarried couples.  
          By prohibiting the state from extending "the benefits of
marriage" only to persons involved in  "a same-sex relationship" --
rather than prohibiting marital benefits to all unmarried couples
-- AS 25.05.013(b) necessarily suggests that the state may confer
some or all of those benefits on unmarried couples involved in
heterosexual relationships.  As I see it, then, the bone of
constitutional contention is AS 25.05.013(b)'s disparate treatment
of unmarried homosexual and unmarried heterosexual couples: the
statute categorically bars state agencies and officials from
granting unmarried same-sex couples spousal benefits that those
agencies and officials may routinely choose to extend to unmarried
heterosexual couples. 
          If this form of discrimination is constitutionally
impermissible, as Brause and Dugan allege it to be, then the danger
that AS 25.05.013(b) might be unconstitutionally applied to them
can hardly be dismissed as remote or hypothetical.  For instance,
among the statutory rights that Brause and Dugan argue they are
denied by AS 25.05.013(b) is the right of a spouse to workers'
compensation benefits.  Brause and Dugan's point on this statute is
strong given that this court has interpreted the workers'
compensation statutes to require the payment of death benefits to
a surviving opposite-sex domestic partner outside of a legal
marriage. [Fn. 30]
          In Burgess Construction, a married couple had divorced,
then reunited after the former husband had two other unsuccessful
marriages. [Fn. 31]  The couple lived together, but never
remarried.  When the former husband died in a job-related accident,
the former wife claimed benefits under the workers' compensation
statutes.  This court held that the workers' compensation statute's
definition of "married" and "widow" included the unmarried former
spouse. [Fn. 32]  This court stated: "While, for some purposes,
[Lindley] would not have been recognized by the Alaska courts as
married to the decedent, [she] qualifies for benefits as a
'surviving wife' under [the] terms of the Alaska Workmen's
Compensation Act." [Fn. 33]
          Notably, Justice Erwin in his concurrence in Burgess
Construction disagreed with the majority's perceived reliance on
the workers' compensation statutory definitions of "married" and
"widow" to award benefits to the decedent's common law wife. [Fn.
34]  He stated that "after [Lindley's] divorce from the deceased
and his remarriage," Lindley could only be characterized as a
common law wife, not a legal wife. [Fn. 35]  He further reasoned
that the "surviving wife" language in the statute obviously
"referr[ed] to a legal wife" as defined by former AS 25.05.011.
[Fn. 37]  But Justice Erwin also concluded that the benefit of the
workers' compensation statute should be extended to Lindley outside
the definition of a legal marriage based on equal protection
grounds. [Fn. 38]  
          If the statute awarded workers' compensation benefits to
"legal" spouses but not to common law spouses, it would create two
categories of similarly situated persons and impermissibly
discriminate against those who did not participate in a formal
marriage ceremony. [Fn. 39]  Justice Erwin found "no rational
relationship between the legal formality of marriage ceremony and
the purpose of the Alaska Workmen's Compensation Act, which
compensates a dependent 'spouse' for the death of a provider." [Fn.
40]  Viewed through the lens of Justice Erwin's concurrence, then,
the majority opinion in Burgess Construction appears to have
consciously extended a spousal benefit to an unmarried person based
on her involvement in a heterosexual de facto spousal relationship.
[Fn. 41]
          Brause and Dugan cite the same statute at issue in
Burgess Construction -- now AS 23.30.215 -- as a violation of equal
protection to same-sex couples.  The definition of "married" under
the workers' compensation statute is essentially unchanged since
Burgess Construction and "includes a person who is divorced but is
required by the decree of divorce to contribute to the support of
the former spouse." [Fn. 42]  
          This uncertainty alone should prompt the court to reach
the merits of Brause and Dugan's case: assuming, as alleged, that
AS 25.05.013(b)'s disparate treatment of same-sex and heterosexual
unmarried couples is unconstitutional, is it not a constitutionally
cognizable injury that statutorily guaranteed benefits are extended
to some unmarried opposite-sex couples, but are categorically
denied to all similarly situated same-sex couples?  Even under the
most rigorous of ripeness standards, this question is ripe for
          Our case law interpreting Alaska's prohibitions against
discrimination based on marital status further militates for
reviewing Brause and Dugan's claim on its merits. [Fn. 43]  We have
extended the protection against marital discrimination to unmarried
couples: "state . . . prohibitions against discrimination based on
marital status protect the rights of unmarried couples." [Fn. 44] 
Alaska Statute 25.05.013(b)'s language throws these holdings into
doubt.  This additional uncertainty provides an independent reason
to address the merits of Brause and Dugan's claim.
          The court expresses misgivings about "ruling on the
constitutionality of a statute when the issues are not concretely
framed." [Fn. 45]  It also voices its concern that, "[i]n order to
grant relief to Brause and Dugan, the superior court would have to
declare a statute unconstitutional." [Fn. 46]  
          But in my view the court overstates the difficulty of
deciding the constitutional question presented.  There is certainly
ample case law from other jurisdictions to guide this court's
decision on the merits.  And as already noted, framing this
controversy more concretely would not help us resolve the issue of
facial constitutionality.  Moreover, the court's prediction that
relief could be granted only by declaring AS 25.05.013(b)
unconstitutional overlooks the less drastic possibility of a
narrowing construction to avoid constitutional problems -- an
alternative that would comport with this court's expressed
preference for interpreting a statute in a manner that renders it
constitutional. [Fn. 47]  
          The court's exaggeration of the difficulty that the
constitutional issue in this case presents is especially apparent
in light of the court's enthusiastic endorsement of the state's
position that the challenged statute is "purely symbolic" and has
no "independent legal significance." [Fn. 48]  For if the statute
indeed has no real significance, the state can have no particularly
strong interest in enforcing it.  Alaska's sliding-scale test of
equal protection would then compel the conclusion that the statute
should be declared invalid or given a limiting construction if it
were shown to have even a mild tendency to chill the exercise of
associational freedoms by those who might not be privy to the
state's closely held view that the statute is all gums and no
teeth.  And in any event, the court's aversion for the prospect of
having to declare AS 25.05.013(b) invalid -- its preference for a
case involving a claim of unconstitutionality as applied to a
particular set of facts -- seems unjustified as a jurisprudential
matter: if the statute is indeed unconstitutional on its face, it
would hardly suffice to declare it invalid only as it applies to a
concretely framed factual setting. 
          In short, I believe that Brause and Dugan established a
sufficiently concrete controversy when they asserted at oral
argument that, as a same-sex couple, they have a legitimate
interest in knowing whether AS 25.05.013(b) will remain on the
books in Alaska. [Fn. 49]  By declaring their claim unripe until
they suffer irreparable injury that they are capable of proving and
are willing to redress through the lengthy process of post-injury
litigation, the court unjustifiably deprives Brause and Dugan, all
other similarly situated couples, and all otherwise interested
Alaskans of a legal ruling that would enable them to make informed
choices about how to organize their lives in Alaska and whether to
continue to reside in this state if its law does in fact withhold
from same-sex couples benefits that it would routinely extend to
unmarried opposite-sex couples.
          The court tries to diminish the legal impact of today's
ruling by emphasizing that the question of whether to issue a
declaratory judgment is a matter in which "judicial discretion was
intended to play a significant role" [Fn. 50] and by finding that,
here, "it was not an abuse of discretion [for the trial court] to
dismiss . . . on lack-of-ripeness grounds." [Fn. 51]  But while
decisions on ripeness undoubtedly involve judicial discretion, the
trial court, as always, was obliged to exercise its discretion
within the appropriate legal framework established by relevant case
law.  Here, as indicated above, this court's prior cases dealing
with ripeness -- as well as a significant body of cases decided by
federal courts and courts in other states -- point uniformly to the
conclusion that Brause and Dugan's constitutional challenge is ripe
for decision.  Since the trial court's ruling is incompatible with
Alaska's law of ripeness as it existed before today's opinion, the
court's attempt to portray the trial court's ruling as a
permissible exercise of discretion rings hollow. [Fn. 52]
          Because I believe that Brause and Dugan's claims are ripe
for adjudication, I would decide the claims on the merits. [Fn. 53]


Footnote 1:

     Alaska Const. art I, sec. 25. 

Footnote 2:

     "In case of an actual controversy in the state, the superior
court, upon the filing of an appropriate pleading, may declare the
rights and legal relations of an interested party seeking the
declaration, whether or not further relief is or could be sought." 
AS 22.10.020(g) (emphasis added).

Footnote 3:

     Jefferson v. Asplund, 458 P.2d 995, 997 (Alaska 1969).

Footnote 4:

     See Bowers Office Prods., Inc. v. University of Alaska, 755
P.2d 1095, 1096 (Alaska 1988).

Footnote 5:

     See id.

Footnote 6:

     "As compared to mootness, which asks whether there is anything
left for the court to do, ripeness asks whether there yet is any
need for the court to act.  Both ripeness and mootness, moreover,
could be addressed as nothing but the time dimensions of standing." 
13A Charles Alan Wright, et al., Federal Practice and Proceduresec.
3532.1, at 101 (Supp. 2000).  

Footnote 7:

     See Bowers, 755 P.2d at 1099.

Footnote 8:

     Earth Movers of Fairbanks, Inc. v. State, Dep't of Transp. and
Pub. Facilities, 824 P.2d 715, 718 (Alaska 1992).

Footnote 9:

     Standard Alaska Production Co. v. State, Dep't of Revenue, 773
P.2d 201, 210 n.14 (Alaska 1989) (quoting Abbott Laboratories v.
Gardner, 387 U.S. 136, 148-49 (1967)). 

Footnote 10:

     State v. Patterson, 740 P.2d 944, 949 n.18 (Alaska 1987)
(quoting 13A Charles Alan Wright, et al., Federal Practice and
Procedure sec. 3532.2, at 137 (2d ed. 1984)).

Footnote 11:

     13A Charles Alan Wright, et al., Federal Practice and
Procedure sec. 3532, at 112 (2d ed. 1984).

Footnote 12:

     Id. (quoting Lake Carriers' Ass'n v. MacMullan, 406 U.S. 498,
506 (1972)).

Footnote 13:

     Id. (quoting Pacific Gas & Elec. Co. v. State Energy Resources
Conserv. & Devel. Commn'n, 461 U.S. 190, 201 (1983)).

Footnote 14:

     Wright, et al., supra note 11, sec. 3532.1, at 114-15
(footnotes omitted).

Footnote 15:

     Id. at 115.

Footnote 16:


                      FOOTNOTES   (Dissent)

Footnote 1:

     Bowers Office Prods., Inc. v. University of Alaska, 755 P.2d
1095, 1097 (Alaska 1988) (quoting Trustees for Alaska v. State,
Dep't of Natural Resources, 736 P.2d 324, 327 (Alaska 1987)).

Footnote 2:

     Slip Op. at 5-9.

Footnote 3:

     See id. (quoting 13A Charles Alan Wright et al., Federal
Practice and Procedure sec. 3532 (2d ed. 1984 & 2000 Supp.)).

Footnote 4:

     See Falcon v. Alaska Pub. Offices Comm'n, 570 P.2d 469, 474-75
(Alaska 1977) (recognizing that standing is not a constitutional
limitation on jurisdiction of Alaska courts as in federal law);
Bowers Office Prods., 755 P.2d at 1096-97.

Footnote 5:

     Bowers Office Prods., 755 P.2d at 1096 (emphasis added).

Footnote 6:

     See id.

Footnote 7:

     Id. at 1097 (quoting Trustees for Alaska, 736 P.2d at 327).

Footnote 8:

     See Johns v. Commercial Fisheries Entry Comm'n, 699 P.2d 334,
337-39 (Alaska 1985); Benesch v. Miller, 446 P.2d 400, 401-02
(Alaska 1968).

Footnote 9:

     699 P.2d at 337 (emphasis added).

Footnote 10:

     Id. at 336-37.

Footnote 11:

     Id. at 338.

Footnote 12:

     446 P.2d at 400-02.

Footnote 13:

     Id. at 402.

Footnote 14:

     458 P.2d 995, 1001-02 (Alaska 1969).

Footnote 15:

     Id. at 999 (footnotes and citations omitted); accord Texas
Dep't of Banking v. Mount Olivet Cemetery Ass'n, 27 S.W.3d 276, 282
(Tex. App. 2000) ("ripeness does not require an actual injury . .
. [only] that an injury is likely to occur").

Footnote 16:

     See Jefferson, 458 P.2d at 1002.  The statute -- former AS
07.25.080 -- granted the borough chair the power to veto assembly
          This court cited Federal Practice & Procedure for the
same proposition: "The complaint must allege conduct of the
defendants which threatens or endangers some legal right of the
plaintiff."  Jefferson, 458 P.2d at 999 n.25 (quoting 3 W. Barron
& A. Holtzoff, Federal Practice and Procedure sec. 1269, at 319
(Wright rev. 1958)) (emphasis added).

Footnote 17:

     787 P.2d 1352 (Wash. 1990), vacated, City of Seattle v. First
Covenant Church of Seattle, Wash., 499 U.S. 901 (1991), judgment
reinstated by First Covenant Church of Seattle v. City of Seattle,
840 P.2d 174 (Wash. 1992).

Footnote 18:

     See id. at 1355.

Footnote 19:

     Id. at 1356.

Footnote 20:

     981 P.2d 368 (Or. App. 1999).

Footnote 21:

     Id. at 373 (citations omitted); see also Hunt v. Superior
Court, 987 P.2d 705, 716 (Cal. 1999) ("[T]he ripeness requirement
does not prevent us from resolving a concrete dispute if the
consequence of a deferred decision will be lingering uncertainty in
the law, especially when there is widespread public interest in the
answer to a particular legal question.").

Footnote 22:

     Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580
(1985) (quoting Abbott Lab. v. Gardner, 387 U.S. 136, 148 (1967)).

Footnote 23:

     Id. at 581; see also Pavey v. University of Alaska, 490 F.
Supp. 1011, 1015 (D. Alaska 1980) (university not required to risk
sanctions affecting student athletes to challenge conflicting rules
of NCAA and Association for Intercollegiate Athletics for Women to
have ripe claim to declaratory judgment) (cited in 10B Wright,
supra note 3, sec. 2757, at 492 n.30); Johnson v. Rockefeller, 58
F.R.D. 42, 46-47 (S.D.N.Y. 1972) (inmates did not have to bring
failed suit challenging denial of access to courts to have ripe
controversy over statute denying access) (cited in 10B Wright,
supra note 3, sec. 2757, at 494-95).

Footnote 24:

     See Thomas, 473 U.S. at 571-76.

Footnote 25:

     Id. at 581 (quoting Regional Rail Reorganization Act Cases,
419 U.S. 102, 143 (1974)).

Footnote 26:

     See Whitman, Admin. of EPA v. American Trucking Ass'n, ___
U.S. ___, ___, 121 S. Ct. 903, 915-16 (2001).

Footnote 27:

     Id. at 915 (quoting Ohio Forestry Ass'n v. Sierra Club, 523
U.S. 726, 733 (1998)).

Footnote 28:

     Slip Op. at 1.

Footnote 29:

     In fact, now that the Alaska Constitution allows marriages
"only between one man and one woman,"   Alaska Const. art. I, sec.
this form of discrimination is to a large extent beyond state
constitutional challenge.

Footnote 30:

     See Burgess Constr. Co. v. Lindley, 504 P.2d 1023, 1024-25
(Alaska 1972).

Footnote 31:

     See id. at 1023-24.

Footnote 32:

     See id. at 1024.  The court acknowledged that the statute did
not define "surviving wife" before concluding that Lindley was
"married" under the statutory definition of that term.  Therefore,
"[i]t follow[ed] that under the Act [Lindley] would be regarded as
his 'surviving wife.'  She qualifies as a 'widow' for she was
living with decedent at the time of his death and was dependent
upon him for support."  Id. 

Footnote 33:

     Id. at 1025.

Footnote 34:

     See id.

Footnote 35:


Footnote 37:


Footnote 38:

     See id. at 1026.

Footnote 39:

     See id.

Footnote 40:


Footnote 41:

     The Burgess Construction majority's logical leap of faith from
"married" to "surviving wife" to "widow" can only be explained by
the court's reliance on Lindley's cohabitation and financial
dependence on the decedent -- a fact pattern identical to many
long-term cohabiting heterosexual and homosexual couples.

Footnote 42:

     AS 23.30.395(19). Compare id. with former AS 23.30.265(15)
(defining married to "include[] a person who is divorced but is
required by the decree of divorce to contribute to the support of
his former spouse").

Footnote 43:

     Brause and Dugan cite AS 18.80.220(c)(1).  That statute uses
the same terms -- "marital status" and "changes in marital status"
-- as other statutes in the chapter prohibiting discrimination,
including AS 18.80.240, the statute applied in Foreman v. Anchorage
Equal Rights Comm'n, 779 P.2d 1199 (Alaska 1989).  See AS
18.80.060, .200, .210, .220, .240, .250.

Footnote 44:

     Foreman, 779 P.2d at 1203; see also University of Alaska v.
Tumeo, 933 P.2d 1147, 1152-53 (Alaska 1997); Swanner v. Anchorage
Equal Rights Comm'n, 874 P.2d 274, 278 (Alaska 1994);  cf. Wood v.
Collins, 812 P.2d 951, 957 (Alaska 1991) (adopting "conclusion of
law that, for unmarried cohabitants, the intent of the parties will
control property division for property acquired before

Footnote 45:

     Slip Op. at 8.

Footnote 46:

     Slip Op. at 8.

Footnote 47:

     See Boucher v. Engstrom, 528 P.2d 456, 462-63 (Alaska 1974),
overruled on other grounds by McAlpine v. University of Alaska, 762
P.2d 81, 85 (Alaska 1988); see also 2A Norman J. Singer, Sutherland
Statutory Construction sec. 45:11, at 75-76 (6th ed. 2000).  This
alternative would also square with Jefferson v. Asplund, 458 P.2d
995, 998-99 (Alaska 1969), where we stated that "declaratory relief
may be sought to determine the validity and construction of
statutes and public acts."

Footnote 48:

     Slip Op. at 7.

Footnote 49:

     This right to know whether AS 25.05.013(b) is facially
constitutional cannot be resolved by assurances, such as those
given by the attorney general's office at oral argument, that the
state will not enforce the statute in a discriminatory manner.  As
a legal matter, these assurances will have no binding effect in
future cases; and as a practical matter, they can provide no
realistic protection against the possibility of discriminatory
application by myriad state officials who are called upon daily to
apply the ostensibly valid statute in specific factual settings.  

Footnote 50:

     Slip Op. at 3 (quoting Jefferson, 458 P.2d at 997).

Footnote 51:

     Slip Op. at 4.

Footnote 52:

     Indeed, the court overlooks the fact that the very case it
cites for the proposition that trial courts have discretion in
determining when to grant declaratory relief -- Jefferson, 458 P.2d
at 997, cited in Slip Op. at 3 n.3 -- found an abuse of discretion
and proceeded to decide the case on its merits.  See id. at 1002.

Footnote 53:

     Although the superior court did not address the merits of
Brause and Dugan's constitutional claim, the claim presents pure
questions of law that this court could resolve without a remand. 
The state, however, has confined its briefing to the issues of
ripeness and standing and has not addressed the merits of Brause
and Dugan's constitutional challenge to AS 25.05.013(b). 
Accordingly, I would order supplemental briefing before ruling on
the merits.  Because resolution on the merits would be premature at
this stage of the proceedings, my dissent is confined to the issue
of ripeness and expresses no opinion on the underlying merits.