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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Eagle v. State, Dept. of Revenue (03/02/2007) sp-6105

Eagle v. State, Dept. of Revenue (03/02/2007) sp-6105, 153 P3d 976

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

PETER EAGLE, )
) Supreme Court No. S- 12004
Appellant,)
) Superior Court No.
v. ) 3AN-03-14150 CI
)
STATE OF ALASKA, ) O P I N I O N
DEPARTMENT OF REVENUE,)
)
Appellee. ) No. 6105 - March 2, 2007
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Morgan Christen, Judge.

          Appearances:  Peter Eagle, pro se, Anchorage.
          Chris  C.  Poag, Assistant Attorney  General,
          David  W. Márquez, Attorney General,  Juneau,
          for Appellee.

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

          MATTHEWS, Justice.


I.   INTRODUCTION
          Peter  Eagle, a former Navy servicemember, claims  that
he  was  a  resident of Alaska for purposes of receiving  a  2003
Permanent  Fund  Dividend  (PFD).  The  Permanent  Fund  Dividend
Division of the Department of Revenue (the Division) rejected his
application  because he failed to rebut the statutory presumption
that  his  absence from Alaska for more than five years indicated
an  intent  not  to return to the state.  Eagle primarily  argues
that  the  Federal  Soldiers and Sailors Civil  Relief  Act  (the
SSCRA)  preempts Alaskan law by preserving his residency for  the
purpose  of PFD eligibility.  He also argues that the Alaska  PFD
residency requirements violate his right to equal protection.  We
hold   that  the  SSCRA  does  not  preempt  the  PFDs  residency
requirements and that Eagle waived any equal protection arguments
by failing to raise them below.  We therefore affirm the superior
courts judgment.
II.  FACTS AND PROCEEDINGS
          Peter Eagle lived in Juneau from kindergarten until  he
graduated  from  high  school in 1982.   After  high  school,  he
attended  college in Oregon but spent his summers in Alaska.   In
1986  Eagle  joined  the Navy and spent the  next  sixteen  years
outside  Alaska.   During his sixteen years  of  active  service,
Eagle  at  most visited Alaska on five occasions, making two-week
trips  in  1988, 1989, 1991, 1994, and 1999.  From 1986 to  1994,
Eagle received PFDs under the active duty allowable absence of AS
43.23.008(a)(3).1   In  1995  the Division  rejected  Eagles  PFD
application, finding that he had failed to overcome a presumption
that after five years of absence from Alaska, he was no longer  a
resident.   Eagle did not appeal the decision and did  not  apply
for  a PFD from 1996 to 2002.  He claims that the burdens of  his
active duty Naval service made it infeasible for him to do so.
          In  2002  the Navy discharged Eagle, and in October  he
returned  to Alaska.  He applied for a PFD in 2003.  The Division
denied his application on the grounds that he had lost his  state
residency  before 2002 and had been absent during that  year  for
more than 180 days.2  At Eagles request, the Division conducted a
formal hearing at which Eagle argued that the SSCRA protected his
status  as  an  Alaska resident for purposes of  the  PFD.3   The
Division rejected his argument that the SSCRA applied.   It  then
determined  that  he  was  ineligible  for  a  2003  PFD,  giving
particular weight to 15 AAC 23.163(h)(2), which directs courts to
presume  that an applicant does not have an intent to  return  to
Alaska if the applicant has been physically present in Alaska for
less than a total of thirty days in the past five years.
          Eagle  subsequently appealed the Divisions decision  to
the  superior  court, again arguing that the SSCRA preserved  his
residential  status.  The superior court affirmed  the  Divisions
decision  and this appeal followed.  Eagle asks that  this  court
(1)  reverse the superior courts decision by finding that  he  is
eligible for a 2003 PFD, (2) strike down 15 AAC 23.163(f),  which
exempts congressmen and their staffers from the five-year-absence
presumption,  as discriminatory and unlawful, and  (3)  reinstate
Eagles eligibility for the 1995-2002 PFDs.
          Eagle  has  represented himself in all stages  of  this
case.
III. DISCUSSION
          We review the merits of an administrative determination
independently.4   Eagle does not dispute any facts.   Rather,  he
challenges  the  constitutionality and wisdom  of  the  Divisions
scheme   for   determining  Alaskan  residency.    We   apply   a
substitution of judgment standard to issues of law not within  an
agencys expertise, such as statutory interpretation, but  do  not
substitute [our] judgment for that of the agency with respect  to
the  efficacy  of  [a]  regulation nor review  the  wisdom  of  a
particular regulation. 5  Constitutional issues present questions
of law, which are subject to independent review.6
     A.   The  SSCRA  Does  Not  Preempt  Alaskas  PFD  Residency
          Requirements with Respect to Servicemembers.
          
          Eagle  argues  that  provisions of  the  SSCRA  on  the
residence  and  domicile  of those in the  military  protect  his
status  as  an  Alaska resident for purposes of PFD distribution.
He  relies  on two sections of the SSCRA to support his argument:
section  571,  which protects servicemembers  residency  for  tax
purposes,7   and   section  595,  which  protects  servicemembers
residency for voting purposes.8  Eagles argument seems to be that
these  provisions  establish  that a  servicemember  retains  his
residence  or  domicile for all purposes, not  just  taxation  or
voting; thus, Alaska wrongfully found that he was not an eligible
resident of Alaska for PFD purposes.  Eagle also points to a U.S.
Government  payroll  form entitled the State of  Legal  Residence
Certificate  to  support the proposition that ones  domicile  and
residence  are  the  same and that a person  can  have  only  one
domicile.9   He interprets this form to hold that the  burden  of
showing that a servicemembers residency has changed rests on  the
challenging party, in this case, the State.
          Eagle   misunderstands  the  narrow  scope  of  federal
preemption  of  state law in our system of dual sovereignty.   We
recently  outlined  the  jurisprudence on federal  preemption  in
State v. Dupier:
          Under  the  Supremacy Clause of  the  federal
          constitution, state laws that interfere  with
          federal  laws are invalid.  Federal laws  can
          preempt  state  laws in the  following  three
          ways: (1) if Congress expressly declares that
          state  law  is  preempted;  (2)  if  Congress
          demonstrates  an  intent to  occupy  a  field
          exclusively;  and (3) if there is  an  actual
          conflict  between  federal  and  state   law.
          Preemption may be either express or  implied.
          When  considering  preemption,  courts  start
          with  the assumption that the historic police
          powers   of  the  states  were  not   to   be
          superseded by the Federal Act unless that was
          the    clear   and   manifest   purpose    of
          Congress.[10]
          
We  conclude  that it was not the clear and manifest  purpose  of
Congress  in  enacting  the  SSCRA to preempt  state  regulations
affecting  the determination of residency for the purpose  of  an
economic benefit such as Alaskas PFD.
          There  is  no  indication in the  SSCRA  that  Congress
wished to preempt state determination of servicemembers residence
beyond the narrow instances of taxation and voting.  Section  571
is meant to prevent servicemembers from being taxed in both their
home  state and the location where the military requires them  to
serve.11  Although one might argue that the PFD falls within  the
rubric  of  taxation, we have described the PFD  as  an  economic
benefit,12  because  money  is  paid  by  the  government  to  an
individual.   Taxation,  on  the  other  hand,  is  an   economic
detriment because the flow of money is in the opposite direction.
Of  course, under some tax systems tax credits might result in an
overall negative tax rate in favor of some individuals.  But  the
difference between such cases and the PFD is that tax credits are
directly part of a government revenue-raising  program,  and  the
PFD is not.
          Any preemptive effect section 595 has is limited by its
own language to the purposes of voting for any Federal office . .
. or a State or local office.13  There are no other provisions of
the  SSCRA  that similarly protect servicemembers  residency  for
other  purposes.  Nor is Congresss regulation of state  residency
for  the  purposes  of taxation and voting  so  pervasive  as  to
conclude that it meant for federal law to occupy the entire field
of  state  residency  determination  regarding  servicemembers.14
Instead,  the  fact that the SSCRA singles out only two  specific
instances  in which it applies to the residency of servicemembers
indicates that it was meant to apply only to those instances.
          Eagles   reliance  on  the  State  of  Legal  Residence
Certificate is also misplaced.  This document is not federal law.15
Its  purpose  is  to  help  servicemembers  declare  their  legal
residence  for the exclusive purpose of state income  taxation.16
As  such,  it  simply works in conjunction with  section  571  to
prevent servicemembers from being taxed in both their home  state
and the state of their military residence.
          Last,  there  is  no  conflict between  the  SSCRA  and
Alaskas residency requirements for PFD distribution.  While it is
understandable  how some of the language in  the  SSCRA  and  the
State  of  Legal  Residence Certificate could lead  a  person  in
Eagles  position  to  believe that  all  facets  of  his  Alaskan
residency  would be preserved while he served in the  Navy,  this
turns  out not to be the case.  As discussed above, the  relevant
provisions  of the SSCRA protect a servicemembers residency  only
for purposes of taxation and voting.  Alaskas PFD is neither;  it
is  an  economic  benefit that Alaska residents are  entitled  to
receive if they meet certain eligibility requirements.17  We have
repeatedly  stated  that  the  residency  requirement   for   PFD
eligibility  may  differ  from other residency  requirements.  18
Therefore,  Eagle could be a resident of Alaska for  purposes  of
taxation and voting under the SSCRA, but not a resident of Alaska
for purposes of PFD eligibility.
     B.   Eagle  Waived  His  Equal Protection  Argument  by  Not
          Raising It Below.
          
          In  his appeal before this court, Eagle also asks  that
this  court [s]trike down 15 AAC 23.163(f) as discriminatory  and
          unlawful.  15 AAC 23.163 covers allowable absences for PFD
eligibility.   15 AAC 23.163(f) states that applicants  who  have
claimed  an  allowable absence under AS 43.23.008 for  more  than
five  consecutive years are presumed not to have  the  intent  to
return to Alaska.  To rebut this presumption, the applicant  must
provide   documentation  that  demonstrates  to  the  departments
satisfaction  an  intent  at  all times  during  the  absence  or
absences to return to Alaska and remain indefinitely in Alaska.19
Eagle objects to the fact that 15 AAC 23.163(f) expressly exempts
members  of the U.S. Congress and their staff from its  five-year
presumption.   He  seems  to make two basic  kinds  of  arguments
against   this  regulation:  that  the  congressional   exemption
violates his right to equal protection and that the absence of  a
similar exemption for servicemembers is bad public policy.
          The State argues that Eagle waived his equal protection
argument  by  not  raising it at the administrative  or  superior
court  level.   Because this issue was not properly  raised,  the
State  argues, the record was not developed at any level and  the
superior  court  did not address it in its order.   Eagle  claims
that  he brought up the disparity in treatment of PFD eligibility
between  members  of  Congress and military  servicemembers  both
during  the  formal hearing before the Division and  during  oral
proceedings before the superior court.20
          This  court  will not consider on appeal new  arguments
that   (1)  depend  on  new or controverted facts;  (2)  are  not
closely  related to appellants arguments at trial; and (3)  could
not  have  been gleaned from the pleadings, unless the new  issue
raised  establishes plain error.21  Because Eagle is representing
himself,  his  briefs  and  pleadings  should  be  held  to  less
stringent standards than those of lawyers.22
          We find only two instances in the record in which Eagle
makes  statements  that  could in any way  relate  to  his  equal
protection  argument on appeal: once in his reply  brief  to  the
superior  court  and  once in oral argument before  the  superior
court.   In  his  reply brief, Eagle very briefly  mentions  that
members of Congress and their staffers are excepted from the five-
year  presumption.   But  this was  in  response  to  the  States
argument that the Divisions decision denying PFD eligibility  was
supported  by  15 AAC 23.163(g)(6), which considers  whether  the
applicants absence was due to a career choice.  Eagle appeared to
have  been  offended  by the States claim  that  service  in  the
military  was a career choice like other civilian career  choices
and  offered  the congressional exception as an  example  of  the
States  callous  attitude  toward  military  service.   In   oral
argument   before  the  superior  court,  Eagle   mentioned   the
congressional exception as a side note to his argument  that  the
State had disregarded the supremacy of federal law.  Again, Eagle
used  the  congressional exception as an example  of  the  States
disregard for the nature of military service.
          Even liberally construed, neither instance provides any
indication  that  Eagle  was  making  or  would  make  an   equal
protection  claim.  Rather, Eagle cursorily raised the difference
in  treatment  between  military servicemembers  and  members  of
Congress   for  illustrative effect in his  preemption  argument.
          Moreover, Eagles equal protection argument is not closely related
to  the  federal preemption argument based on the SSCRA  that  he
made in his administrative appeals and before the superior court.
Eagles  equal  protection argument requires a  balancing  of  the
States  purpose  in  promulgating 15 AAC  23.163(f)  against  the
individual  interest impaired by this regulation,23  whereas  his
preemption argument requires a determination of Congresss  intent
in  enacting federal legislation.24  Eagle thus waived his  equal
protection argument by failing to raise it below.
          To  the extent that Eagle is simply arguing that 15 AAC
23.163(f) is bad policy, he has chosen the wrong forum to air his
grievances.   We  have  stated that in administrative  regulation
cases  like  this that [w]e do not . . . review the wisdom  of  a
particular regulation. 25  This court is empowered to strike down
regulations that violate the Alaska or Federal Constitution.26 It
is  not the province of this court to determine whether or not  a
particular  law  or  regulation is based on good  policy.27   The
superior  court correctly concluded that Eagles policy  arguments
concerning   the   scheme  of  determining  residence   for   PFD
eligibility  are  properly directed to the legislature,  not  the
court.
IV.  CONCLUSION
          While  Alaska  owes Eagle a debt of gratitude  for  his
naval  service to the nation, it does not owe him a PFD for 2003.
The  Divisions determination of military servicemembers residency
for  the  purpose of PFD distribution is not preempted by federal
law.   The provisions of the SSCRA on which Eagle relies  protect
servicemembers residency only in regard to taxation  and  voting.
Congress has not indicated that a servicemembers residency should
be  otherwise  protected by federal law.  We also  conclude  that
Eagle  waived  any  equal protection argument  regarding  15  AAC
23.163(f) by failing to raise it below.  We therefore AFFIRM  the
superior courts judgment.
_______________________________
     1     AS  43.23.008(a)(3) provides:  [A]n otherwise eligible
individual  who  is absent from the state during  the  qualifying
year  remains eligible for a current year permanent fund dividend
if  the individual was absent . . . serving on active duty  as  a
member of the armed forces of the United States . . . .

     2    AS 43.23.005(a)(3) requires that an applicant have been
a  resident for the entire qualifying year to be eligible  for  a
PFD,  which  in  this case meant that Eagle had to  have  been  a
resident  of Alaska for all of 2002 (the qualifying year)  to  be
eligible  for  a 2003 PFD.  15 Alaska Administrative  Code  (AAC)
23.163(b)  (2003)  states that applicants  who  are  absent  from
Alaska for more than 180 days are not eligible if they were not a
resident  for  at  least 180 days before departure  from  Alaska.
Because  Eagle returned to Alaska in October 2002, he was  not  a
resident  during that qualifying year under 15 AAC 23.163(b)  and
thus was ineligible for a 2003 PFD.

     3     Soldiers  and  Sailors Civil Relief  Act  (SSCRA),  50
U.S.C.   app.    501-96  (2003)  (protecting  the  residency   of
servicemembers for tax and voting purposes).

     4    iginal) (quoting Church v. State, Dept of Revenue, 973 P
.2d  1125,  1127  (Alaska 1999)).Laidlaw Transit,  Inc.  v.  Anch
orage Sch. Dist., 118 P.3

     5     Anderson,  26  P.3d at 1109 (alteration  in  original)
(quoting  Church v. State, Dept of Revenue, 973 P.2d  1125,  1127
(Alaska 1999)).

     6    Laidlaw Transit, Inc. v. Anchorage Sch. Dist., 118 P.3d
1018, 1023 (Alaska 2005).

     7     50  U.S.C.  app.  571 provides: A servicemember  shall
neither lose nor acquire a residence or domicile for purposes  of
taxation with respect to the person, personal property, or income
of  the servicemember by reason of being absent or present in any
tax  jurisdiction of the United States solely in compliance  with
military orders.

     8    50 U.S.C. app.  595 provides:

               For  the  purposes  of  voting  for  any
          Federal  office  . . . or a  State  or  local
          office,  a person who is absent from a  State
          in  compliance with military or naval  orders
          shall not, solely by reason of that absence
               (1)  be  deemed to have lost a residence
               or   domicile  in  that  State,  without
               regard  to  whether or  not  the  person
               intends to return to that State;
               (2)   be  deemed  to  have  acquired   a
               residence  or  domicile  in  any   other
               State; or
               (3)  be deemed to have become a resident
               in or a resident of any other State.
               
     9        State     of     Legal    Residence    Certificate,
http://dcp.psc.gov/PDF_docs/dd2058.pdf  (last  visited  Nov.   7,
2006).

     10     118  P.3d  1039,  1049 (Alaska 2005)  (citations  and
quotations omitted); see also English v. Gen. Elec. Co., 496 U.S.
72, 78-79 (1990) (discussing the same three ways in which federal
laws can preempt state laws).

     11     E.g.,   Sullivan v. United States, 395 U.S. 169,  180
(1969)  (holding that this provision was enacted . . . to prevent
multiple   State   taxation  of  the  property)  (citations   and
quotations  omitted); California v. Buzard,  382  U.S.  386,  393
(1966)  (holding that this provisions purpose in broadly  freeing
the  nonresident serviceman from the obligation to  pay  property
and  income  taxes was to relieve him of the burden of supporting
the  governments  of the States where he was  present  solely  in
compliance  with  military orders); United States  v.  County  of
Champaign,  Ill., 525 F.2d 374, 377 (7th Cir. 1975) (The  statute
was  enacted  to  protect  servicemen from  the  risk  of  double
taxation occasioned by their temporary duty in a state other than
their domicile.).

     12     State,  Dept of Revenue v. Andrade, 23  P.3d  58,  71
(Alaska 2001).

     13    50 U.S.C. app.  595.  This provision was added in 2003.

     14     Cf.  Hines  v. Davidowitz, 312 U.S. 52, 69-74  (1941)
(holding  that the extensive federal regulation in  the  area  of
immigration   preempted  a  Pennsylvania  law   requiring   alien
registration).

     15     The  Supremacy Clause declares that the Constitution,
and  the  Laws  of  the  United States which  shall  be  made  in
Pursuance thereof; and all Treaties made, or which shall be made,
under  the  Authority of the United States, shall be the  supreme
Law of the Land.  U.S. Const. art. VI, cl. 2.

     16     The  State of Legal Residence Certificate, see  supra
note 9, states in relevant part:

               The  purpose of this certificate  is  to
          obtain information with respect to your legal
          residence/domicile   for   the   purpose   of
          determining the State for which income  taxes
          are to be withheld from your wages as defined
          by  Section  3401(a) of the Internal  Revenue
          Code of 1954. . . .  The Soldiers and Sailors
          Civil  Relief Act protects your military  pay
          from  the income taxes of the State in  which
          you  reside  by  reason  of  military  orders
          unless  that  is  also your legal  residence/
          domicile.
          
     17    Andrade, 23 P.3d at 71.

     18    Id. at 71-72 (quoting Church v. State, Dept of Revenue,
973 P.2d 1125, 1129 (Alaska 1999)).

     19    15 AAC 23.163(f).

     20    The record does not contain Eagles arguments during his
formal hearing before the Division.

     21     Price v. Eastham, 128 P.3d 725, 731 (2006) (citations
and quotations omitted).

     22    Id. at 731-32.

     23     See  Malabed v. N. Slope Borough, 70  P.3d  416,  421
(Alaska  2003)  (describing the three-part  test  used  in  equal
protection  cases:  [F]irst,  we  determine  the  weight  of  the
individual  interest impaired by the [law at issue];  second,  we
examine the importance of the purposes underlying the governments
action;  and  third,  we evaluate the means employed  to  further
those goals to determine the closeness of the means-to-end fit.).

     24    See supra text accompanying note 10.

     25    Anderson v. State, Dept of Revenue, 26 P.3d 1106, 1109
(Alaska 2001) (quoting Church v. State, Dept of Revenue, 973 P.2d
1125, 1127 (Alaska 1999)).

     26     See,  e.g.,  State, Dept of Health & Soc.  Servs.  v.
Planned  Parenthood  of Alaska, Inc., 28 P.3d  904,  915  (Alaska
2001)  (Without  in  any way attempting to  invade  the  rightful
province of the Legislature to conduct its own business, we  have
a duty, certainly since Marbury v. Madison, to adjudicate a claim
that  a  law  and  the actions undertaken pursuant  to  that  law
conflict  with the requirements of the Constitution.)  (citations
and quotations omitted).

     27     See,  e.g.,   State v. Campbell, 536  P.2d  105,  111
(Alaska  1975)  (holding  that  the constitutions  separation  of
powers   prohibits  this  court  from  enacting  legislation   or
redrafting defective statutes).

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