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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Heller v. State, Dept. of Revenue (12/6/2013) sp-6849

Heller v. State, Dept. of Revenue (12/6/2013) sp-6849

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                 

         corrections@appellate.courts.state.ak.us.  



                  THE SUPREME COURT OF THE STATE OF ALASKA  



RICHARD HELLER,                                     )  

                                                    )        Supreme Court No. S-13551  

                          Appellant,                )  

                                                    )        Superior Court No. 4FA-08-01193 CI  

         v.                                         )  

                                                    )        O P I N I O N  

STATE OF ALASKA,                                    )  

DEPARTMENT OF REVENUE,                              )       No. 6849 - December 6, 2013  

                                                    )  

                          Appellee.                 )  

                                                    )  



                 Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                 Fourth  Judicial  District,  Fairbanks,  Douglas  Blankenship,  

                                                                  

                 Judge.  



                 Appearances:    Andy  Harrington,  Alaska  Legal  Services  

                 Corporation, Fairbanks, and James J. Davis, Jr., Alaska Legal  

                                                                           

                 Services Corporation, Anchorage, for Appellant.  Michele  

                 Kane,      Assistant     Attorney      General,     Juneau,      and    Ruth  

                 Bottstein, Assistant Attorney General, Anchorage, and Daniel  

                 S. Sullivan, Attorney General, Juneau, for Appellee.  



                 Before:  Carpeneti, Chief Justice, Fabe, Winfree, Stowers,
  

                 and Maassen, Justices.  
 



                 CARPENETI, Chief Justice.
  

                 WINFREE, Justice, with whom STOWERS, Justice, joins,
  

                 dissenting in part.
  


----------------------- Page 2-----------------------

I.        INTRODUCTION  



                   A member of the military moved to a new post in Alaska in June 2005.  



Two months later, he was deployed to Iraq.   After 16 months of service in Iraq, he  

                                                                                                              



returned to Alaska in December of 2006.  Shortly thereafter, he applied for the 2007  

                                                                                                           



Permanent  Fund  Dividend  (PFD),  which  is  paid  in  recognition  of  the  applicant's  

                                          



eligibility during 2006.  The Department of Revenue denied his application.  The service  

                                                               



member filed an informal appeal and later a formal appeal with the Department, both of  

                                                                                                 



which were denied.  The superior court affirmed the denial, concluding that the relevant  

                              



statute required him to reside in Alaska for six months before claiming an allowable  

                                    



absence for military service and that the statute did not violate equal protection under the  

                                                                    



U.S.  and  Alaska  Constitutions.    The  service  member  appeals.    Because  he  was  not  



eligible for the 2007 PFD under AS 43.23.008, and this statute is consistent with the  



requirements  of  the  U.S.  and  Alaska  Constitutions,  we  affirm  the  judgment  of  the  



superior court.  



II.       FACTS AND PROCEEDINGS  



                   In June 2005 the U.S. Army assigned Richard Heller to the Headquarters  

                                                                                                  



Company of the 172nd Stryker Brigade, an Alaska-based unit.  He arrived in Alaska on  

                                                                                                 



June 17, 2005.  Upon arrival, Heller registered to vote, obtained an Alaska driver's  



license, and changed his military records to indicate Alaska residency.  On August 14,  



2005,  Heller  was  deployed  to  Iraq.    Although  Heller's  service  in  Iraq  was  initially  



scheduled to last one year, the army extended his stay an additional 120 days.  Heller  

                                                                                     



finally returned to Alaska on December 11, 2006.  



                                                             -2-                                                      6849
  


----------------------- Page 3-----------------------

                   In March 2007 Heller applied for a Permanent Fund Dividend to be paid  

                                                                                                                    

in 2007 for the 2006 qualifying year.1  Several months later, Heller received a letter from  



Alaska's  Department  of  Revenue  (the  State)  denying  his  application.    The  letter  



                                             

explained that pursuant to AS 43.23.008(b) Heller was not eligible for the PFD because  



                                                    

he was not an Alaska resident for at least six consecutive months before leaving the state.  



Heller filed a request for informal appeal, arguing that the short duration of his stay in  



                                                                                           

Alaska prior to leaving the state should not prevent him from receiving a PFD because  



                                                                                         

his position in the Army required him to go to Iraq.  A PFD technician denied Heller's  



                                                                    

appeal.  However, the denial included several erroneous facts.  It stated that Heller had  



arrived  in  Alaska  on  June  17,  2006,  when  he  had  actually  arrived  exactly  one  year  



             

earlier.  It also stated that Heller had failed to obtain an Alaska driver's license, register  



to vote in Alaska, and register a vehicle in Alaska, when he had actually done all three.  



Pointing out these errors, Heller filed a request for a formal hearing.  



                   The   Office   of   Administrative   Hearings   held   a   formal   hearing   on  



December  27,  2007.    Despite  adopting  Heller's  corrected  version  of  the  facts,  the  



administrative  law  judge  denied  Heller's  appeal.    The  judge  noted  that  under  



                                                                                                            

AS 43.23.008(a)(3), it is possible for a person serving in the armed forces to retain PFD  



                                                                                                                

eligibility while living in another state or country during the qualifying year.  However,  



the judge went on to explain that a person can take advantage of this allowable absence  



provision only if he was an Alaska resident for at least 180 days immediately before  

                         2  Because there is no exception for involuntary absences, and Heller  

                                                                         

leaving the state.  



          1        The  "qualifying  year"  for  a  given  PFD  is  the  year  that  immediately  



preceded January 1 of the year in which the PFD is paid.  See AS 43.23.095(6).  Thus,  

                                                            

2006 was the qualifying year for the 2007 PFD.  



          2        See 15 Alaska Administrative Code (AAC) 23.163(b)(1) (2007).  



                                                             -3-                                                          6849  


----------------------- Page 4-----------------------

                                                                                               

was a state resident for at most 59 days before leaving for Iraq, the judge concluded that  



Heller was not entitled to the 2007 PFD.  



                       Heller appealed to the superior court, which closely examined the issues  



and  affirmed  the  administrative  decision.    Heller  appeals,  arguing  that  the  superior  



court's decision relies on a misinterpretation of the statute.  In the alternative, Heller  



                                                             

asserts that if the superior court's reading of the statute is correct, and he is precluded  



                                                                                                                            

from receiving a 2007 PFD, the statute violates equal protection under both federal and  



state law.  



III.        STANDARD OF REVIEW  



                                                                       

                       When  the  superior  court  acts  as  an  intermediate  appellate  court,  we  



                                                                                                                                3  

                                                                                                                                   The specific  

independently review the merits of the underlying administrative decision. 



                                                                                                                                  

form our independent review takes is de novo review:  We adopt the rule of law that is  

most persuasive in light of precedent, reason, and policy.4  



                       Heller contests an agency's interpretation of one of its governing statutes.  



                       

Because the interpretation involves legislative intent rather than agency expertise, we  



                                                                     5  

                                                                        But the specific form our independent review  

apply independent review here as well.  



            3          See State, Pub. Emps. Ret. Bd. v. Morton                              , 123 P.3d 986, 988 (Alaska 2005)     



(citing State, Dep't of Natural Res. v. Greenpeace, Inc.                                           , 96 P.3d 1056, 1061 (Alaska  

2004)).  



            4  

                                               

                       See  State  v.  Native  Vill.  of  Tanana,  249  P.3d  734,  737  (Alaska  2011)  

                                                                                     

("Under de novo review, we apply 'the rule of law that is most persuasive in light of  

precedent, reason, and policy.' " (quoting  Glamann v. Kirk, 29 P.3d 255, 259 (Alaska  

2001))); Homer Electric Ass'n, Inc. v. City of Kenai , 816 P.2d 182, 185 (Alaska 1991)  

                                                         

("Because the superior court acted below as an intermediate appellate court, we [do not  

                                                                                                          

defer]  to  its  decision;  rather,  we  review  the  case  de  novo."  (citing  Tesoro  Alaska  

                                                                                             

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



            5  

                                                                                                                               

                       Morton , 123 P.3d at 988 (quoting Alaska Ctr. for the Env't v. Rue , 95 P.3d  

                                                                                                                                (continued...)  



                                                                          -4-                                                                  6849
  


----------------------- Page 5-----------------------

takes  is  distinct  from  pure  de  novo  review.    We  apply  the  substitution-of-judgment  



               6  

                             

standard.   Under this standard, we again adopt the rule of law that is most persuasive in  



light of precedent, reason, and policy, but in doing so we give due deliberative weight  



"to   what   the   agency   has   done,   especially   where   the   agency   interpretation   is  



                        7  

longstanding."   



                     Constitutional interpretation presents questions of law that are subject to  

independent review under the de novo standard.8  



IV.        DISCUSSION  



                                                                                                                    

           A.        Heller Does Not Meet The Eligibility Requirements Of AS 43.23.008.  



                                                                                       

                     Alaska Statute 43.23.005(a) sets out the basic eligibility requirements for  



                                                        

receiving a PFD. In pertinent part, the statute requires that an applicant "was, at all times  



                                                                          

during the qualifying year, physically present in the state or if absent was absent only as  



           5         (...continued)  



924, 926 (Alaska 2004)).  



           6         Id .  We have also referred to the substitution-of-judgment standard as the   



"independent  judgment"  standard.    See  Chugach  Electric  Ass'n,  Inc.  v.  Regulatory  

Comm'n of Alaska, 49 P.3d 246, 249-50 (Alaska 2002) (citing and quoting Nat'l Bank  

                                                                                          

of Alaska v. State, Dep't of Revenue, 642 P.2d 811, 815 (Alaska 1982)).  



           7          Chugach Electric, 49 P.3d at 249-50 (quoting Nat'l Bank of Alaska , 642  



P.2d at 815) (internal quotation marks omitted).  



           8         Eagle v. State, Dep't of Revenue , 153 P.3d 976, 978 (Alaska 2007) (citing  



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

                                                                                        

v. Planned Parenthood of Alaska , 171 P.3d 577, 581 (Alaska 2007) (citing Treacy v.  

                                                                                                     

Municipality of Anchorage , 91 P.3d 252, 260 (Alaska 2004)).  



                                                                   -5-                                                            6849
  


----------------------- Page 6-----------------------

                                             9  

allowed  in  AS  43.23.008."     Alaska  Statute  43.23.008(a)  enumerates  the  physical  



                                          10  

absences that are allowed.                    In pertinent part, it states:  



                                                             

                     (a)  Subject to (b) and (c) of this section, an otherwise eligible  

                                                                                    

                     individual who is absent from the state during the qualifying  

                     year  remains  eligible  for  a  current  year  permanent  fund  

                     dividend if the individual was absent  



                                . . .  



                                (3) serving on active duty as a member of the armed  

                                forces of the United States . . . ;  



                                . . .  



                                                                 

                                (16) for any reason  consistent with the individual's  

                                intent to remain a state resident, provided the absence  

                                or cumulative absences do not exceed  



                                          (A)  180  days  in  addition  to  any  absence  or  

                                                                       

                                          cumulative absences claimed under (3) of this  

                                                                   [11] 

                                          subsection . . . .  



Alaska Statute 43.23.008(b) provides:  



                     An  individual  may  not  claim  an  allowable  absence  under  

                                            

                     (a)(1)-(15) of this section unless the individual was a resident  

                     of the state for at least six consecutive months immediately  

                                                           [12] 

                     before leaving the state.  



           9         AS 43.23.005(a)(6).  



           10        In 2008 the legislature amended AS 43.23.008, Ch. 36,  1-2, SLA 2008.     



The  amendments  are  not  substantively  relevant  to  this  case,  but  they  caused  the  

subsections  to  be  numbered  differently.    Because  this  dispute  arose  under  the  2007  

statute, we follow the numbering that existed prior to the 2008 amendment.  



           11        Former AS 43.23.008(a) (2007).  



           12        Former AS 43.23.008(b) (2007) (emphasis added).  



                                                                  -6-                                                            6849
  


----------------------- Page 7-----------------------

The question   before us is whether Heller may claim an "allowable absence" for the  



period of time he was away from Alaska, serving in Iraq.   



                    Heller argues that he is entitled to simultaneously claim two allowable  



                                                                          

absences: an allowable absence under subsection (a)(3) for his military service, and an  



                                                                        

allowable absence under subsection (a)(16) "for any reason consistent with [his] intent  



                                               

to remain a state resident."  He acknowledges that a person only claiming an allowable  



                                                                 

absence under subsection (a)(3) is subject to a prior residency requirement of six months.  



                                                                                                                       

He also does not contest that because he did not move to Alaska until June 2005, he had  



only been an Alaska resident for two months before leaving the state.  



                                                                                                                  

                    However, Heller points to subsection (a)(16), under which he is entitled to  



                                                                                                                   

an additional 180 days out of the state "for any reason consistent with [his] intent to  

                                   13   Unlike subsection (a)(3), subsection (a)(16) is not subject to  

remain a state resident."                                                                     



the  six-month  residency  requirement.    Heller  argues  that  because  the  six-month  



requirement  does  not  apply  to  absences  under  (a)(16),  he  should  be  able  to  apply  



subsection (a)(16)'s 180 days to the period immediately  following his August 2005  

                                                                                       



departure for Iraq.  In Heller's view, by the time he had exhausted those 180 days, he had  

                                                                                                        



already been a resident of the state for over six months, and was therefore eligible for  

                     



subsection (a)(3)'s allowable absence for military service.  Heller argues that he should  

                                                              



be allowed to combine subsections (a)(3) and (a)(16) in this manner because, according  



to Heller, the statute's text and legislative history support his interpretation.  



                                                   

                    The State disagrees.  It argues that Heller's interpretation ignores the plain  



                                                                                                    

language of the statute, renders language in the statute superfluous, and undermines the  



legislature's intent to limit the dividend to permanent residents.  It points to the plain  



language of AS 43.23.008(b), which states that in order for an applicant to claim an  



          13        Former AS 43.23.008(a)(16)(A) (2007).  



                                                              -7-                                                          6849  


----------------------- Page 8-----------------------

allowable absence under subsection (a)(3), he must have been "a resident of the state for  

                                          



                                                                                                                         14  

at  least  six  consecutive  months  immediately  before  leaving  the  state."                                                The  State  

                     



observes that, contrary to the statute's explicit language, Heller's interpretation of the  

                                                                                                                                      



statute would allow him to claim the allowable absence even though  he had  been a  

                                                                                                                                    



resident for less than six months before leaving.  



                                                                                          

                      To resolve this dispute we must look to the language and purpose of the  



statute.  "The objective of statutory construction is to give effect to the intent of the  



legislature,  with  due  regard  for  the  meaning  that  the  statutory  language  conveys  to  



             15  

others."         We give unambiguous statutory language its ordinary and common meaning,  



but the "plain meaning" rule is not an exclusionary rule; we will look to legislative  



                                                                                    16  

history as a guide to construing a statute's words.                                      "The plainer the meaning of the  



                                                                                                                              17  

statute, the more persuasive any legislative history to the contrary must be."                                                     



                      In this case, the statute's language is reasonably clear.  It provides:  



                                                        

                      An  individual  may  not  claim  an  allowable  absence  under  

                                                                                  

                      (a)(1)-(15) of this section unless the individual was a resident  

                      of the state for at least six consecutive months immediately  

                                                              [18] 

                      before leaving the state.  



           14         AS 43.23.008(b) (emphasis added).  



           15         City of Dillingham v. CH2M Hill Nw., Inc.                              , 873 P.2d 1271, 1276 (Alaska   



1994) (citing Saunders Props. v. Municipality of Anchorage, 846 P.2d 135, 138 n.4  

(Alaska 1993)).  



           16  

                                                                          

                      Id. (citing N. Slope Borough v. Sohio Petroleum Corp. , 585 P.2d 534, 540  

& n.7 (Alaska 1978)).  



           17  

                                                                                                

                      Id.  (citing  Peninsula  Mktg.  Ass'n  v.  State ,  817  P.2d  917,  922  (Alaska  

1991)).  



           18         Former AS 43.23.008(b) (2007).  



                                                                     -8-                                                               6849
  


----------------------- Page 9-----------------------

                                                                              

This section prohibits a PFD applicant from claiming an allowable absence under former  



AS  43.23.008(a)(1)-(15)  if  that  person  did  not  reside  in  the  state  for  at  least  six  



consecutive  months  immediately  before  leaving  the  state.  Heller's  interpretation  



                                                                

contradicts  this  language;  it  would  allow  him  to  claim  an  allowable  absence  under  



subsection (a)(3) even though he did not reside in Alaska for six consecutive months  



prior to leaving the state.  



                                                                 

                    Heller seizes on the use of the word "resident" in former AS 43.23.008(b)  



                                                                                

and emphasizes that he meets the basic definition of a "resident" under the PFD statute  



                                                                                 19  

because he intended to remain in Alaska indefinitely.                                Heller's focus on the word  



                                                                          

"resident" is misleading.  The allowable absences listed in AS 43.23.008 are exceptions  



                                                                                                               

to the "physically present" requirement of AS 43.23.005.  And the specific language of  



                       

subsection  (b)  makes  clear  that  the  requirement  set  out  in  this  subsection  concerns  



                                                                                                      

physical presence, which, in this case, serves as an important indicator of intent to remain  



          19        A "state resident" in the PFD context is defined as:  



                    an individual who is physically present in the state with the  

                    intent     to   remain       indefinitely        in    the    state     under      the  

                    requirements  of  AS  01.10.055  or,  if  the  individual  is  not  

                   physically present in the state, intends to return to the state  

                                                                                                

                    and      remain       indefinitely        under       the     requirements          of  

                    AS 01.10.055.  



AS 43.23.095(7) (emphasis added).  The PFD statute defines a state resident for PFD  

purposes as a person who meets the basic eligibility requirements of AS 01.10.055 as  

well  as  other  PFD-specific  requirements.  It  is  permissible  for  Alaska  to  define  a  

                                                                                                                   

"resident" differently for purposes of PFD eligibility than for other purposes.  Schikora  

                                                    

v.  State,  Dep't  of  Revenue,  7  P.3d  938,  942  (Alaska  2000)  ("  '[T]he  residency  

                                                                                                      

requirement  for  PFD  eligibility  may  differ  from  other  residency  requirements.'  "  

(quoting Brodigan v. Alaska Dep't of Revenue , 900 P.2d 728, 733 n.12 (Alaska 1995))).  

                                                                                           

In this case, there is no dispute about Heller's intent to remain in Alaska or whether he  

                                                                              

satisfies the preliminary requirement of AS 01.10.055.  The dispute concerns Heller's  

qualifications under the PFD statute.   



                                                              -9-                                                       6849
  


----------------------- Page 10-----------------------

                                                                                     

in Alaska.  The words "immediately before leaving" in subsection (b) corroborate our  



                                          

understanding that persons claiming an absence under subsection (a)(3) must have a six- 



                                                                                           

month period as a state resident.  Heller's alternative reading of the statute is too strained  



                                                                      

for us to accept; the statute does not authorize a PFD claimant to briefly enter the state,  



                                                                                               

physically "leav[e]" the state for the entire remaining portion of the six-month period (as  



                                                                                         

Heller did - a period of over four months) and satisfy the six-month requirement from  



                                                                      

another location.  The modifier "consecutive" in AS 43.23.008(b) further reinforces our  



                                                                                          

reading; if subsection (b) were concerned solely with intent to remain in Alaska, and not  



at  all  concerned  with  physical  presence,  then  the  modifier  "consecutive"  would  be  



                                                                                     

unnecessary because the continuous nature of the intent is already required by the word  



"indefinitely" found in AS 43.23.095(7).  While the word "resident" in AS 43.23.008(b)  



creates  some  ambiguity,  the  best  reading  of  this  provision  requires  an  applicant  to  



physically reside in the state for six consecutive months before he or she can claim an  



                                                                20  

allowable absence under subsection (a)(3).                            



                    Heller argues that the State's "fixation" on the "immediately before leaving  



                                               

the state" language is illogical in light of the legislature's clear intent to enable military  



personnel  to  simultaneously  claim  allowable  absences  from  subsections  (a)(3)  and  



                                            

(a)(16).  Heller is correct that the legislature clearly intended to enable military personnel  



          20        The dissent suggests that today's opinion creates a requirement of "physical  



presence for six consecutive months" before a person can take an allowable absence,  

which "will come as a great surprise to the many high school graduates who take an out- 

                                                                                 

of-state spring break or summer vacation before departing for a college outside Alaska."  

             

But this hypothetical scenario is not before the court.  Moreover, our opinion nowhere  

requires  six  months  of  "continuous"  physical  presence  as  the  dissent  claims.    The  

concept  of  residency  does  not  preclude  temporary  absences  as  long  as  the  intent  to  

                                                                                                   

remain continues.  Former AS 43.23.008(b) (2007).  



                                                              -10-                                                         6849
  


----------------------- Page 11-----------------------

to  combine  the  two  kinds  of  allowable  absences.    Subsection  (a)(16)  makes  an  



individual's absence allowable if it was:  



                                                                         

                    (16) for any reason consistent with the individual's intent to  

                    remain a state resident, provided the absence or cumulative  

                    absences do not exceed  



                             (A) 180 days in addition to any absence or cumulative  

                                                                                         

                                                                                                 [21] 

                             absences claimed under (3) of this subsection.  



Under this subsection, an applicant may be absent for any amount of time due to military  



service, and in the same qualifying year, be absent "for any reason consistent with [his]  

                       



intent to remain a state resident" as long as that additional absence does not exceed 180  

                                                                                      



days.  Combining the subsections in this way enables an individual to be out of the state  

                                                                                                           



for the purpose of military service for nine months out of the year, and go on vacation  



                                                                                               

out of Alaska for three months; as long as he intends to remain an Alaska resident, he  



remains eligible for a PFD.  



                                                                                                             

                    But contrary to Heller's argument, the reading of the statute that the State  



                                                                          

endorses is not inconsistent with the legislature's intent to enable military personnel to  



combine absences under (a)(3) and (a)(16).  Under the State's reading, an applicant may  



combine (a)(3) and (a)(16) in a single year.  However, if the applicant claims under  



                                                                         

(a)(3), he must have resided in Alaska for at least six consecutive months before leaving  



the state. This reading does not give rise to internal inconsistency; rather, it evinces a  



                                                                                                                  

legislative intent to treat long absences more stringently than short ones.  Not only must  



                                            

a person absent for more than 180 days be absent due to a legislatively-approved purpose  



- that is, one of the purposes enumerated in subsections (a)(1)-(15) - but such an  



                           

absence  must  be  immediately  preceded  by  at  least  six  consecutive  months  of  state  



residence.   



          21        Former AS 42.23.008(a)(16) (2007) (emphasis added).  



                                                             -11-                                                          6849  


----------------------- Page 12-----------------------

                      These  more  stringent  requirements  are  consistent  with  the  legislature's  



                                                                                                                 22 

                                                                                                                     The requirement  

intent to limit payment of dividends to bona fide permanent residents. 



that an applicant be a resident for at least six months before leaving helps to ensure that  



                                                                                                                                        

the applicant was not merely "passing through" before he left the state, but rather had a  



                           

genuine desire to make Alaska his permanent home.  Thus, there is nothing internally  



                                                                                                                   

inconsistent           or     inherently          illogical       in     requiring         an     applicant          claiming         under  



subsection (a)(3) to have been a resident for six months before leaving the state, even  



where that applicant also claims an absence under subsection (a)(16).  



                      Heller  next  argues  that  legislative  history  supports  his  reading.    Heller  



                                                                          

points to the legislative history of the 2003 amendment that lengthened the amount of  



                                         

time military personnel can be out of the state over and above absences for the purpose  



of military service.  Before the amendment, those claiming a military absence under  



                                                                                                       

subsection (a)(3) were allowed only an additional 45 days out of the state under the "for  



                                                            23  

                                                                As a result of the amendment, military personnel  

any reason" provision of the statute.  



                                                                                                               

were allowed 180 days of allowable absence "for any reason," over and above time spent  



                                                                   24  

away for the purpose of military service.                              As Heller notes, legislative history indicates  



                                                                                                        

that the measure grew, in part, from a desire to show gratitude to military personnel for  

their service by relaxing the requirements that apply to them.25  



           22         See State, Dep't of Revenue, Permanent Fund Dividend Div. v. Cosio                                                , 858  



P.2d 621, 625 (Alaska 1993) (stating that the purpose of the subsection of AS 43.23.095     

defining  state  residency  in  the  PFD  context  is  "to  limit  payment  of  dividends  to  

permanent residents").  



           23         See ch. 69, 1, SLA 2003.  



           24         See id.  



           25         See Minutes, Sen. Fin. Comm. Hearing on S.B. 148, 23rd Leg., 1st Sess.  



                                                                                                                          (continued...)  



                                                                     -12-                                                              6849
  


----------------------- Page 13-----------------------

                                                                          

                    But in implementing that goal, the legislature nevertheless sought to limit  



                                                                                            

payment of dividends to bona fide permanent residents.  The legislature chose to extend  



                                                                                                                

by more than four months the allowable "for any reason" absence; it did not choose to  



exempt   military   personnel   from   the   "six   consecutive   months"   requirement   of  



                       26  

subsection (b).             The amended statute still requires that military personnel reside in  



Alaska for at least six consecutive months before claiming a military absence under  



subsection  (a)(3).    Heller  has  not  pointed  to  anything  in  the  legislative  history  that  



convinces us otherwise.  



                                                                          

                    Heller  is  correct  that  the  statute  enables  military  personnel  to  claim  



                                                    

subsection (a)(3) and subsection (a)(16) absences in combination.  But claiming the  



absences  in  combination  does  not  justify  bypassing  the  "six  consecutive  months"  



                                                                  

requirement of subsection (b). Heller is not eligible to claim a subsection (a)(16) absence  



                                                                            

because he spent at most 59 days in Alaska before leaving for Iraq.  In order to claim the  



subsection (a)(3) absence, the PFD applicant must have first demonstrated a bona fide  



                                                                              

intent to remain in Alaska by physically residing in the state for six consecutive months.  



We agree with the State that the time Heller spent in Iraq does not count toward the  



                                                                                                                       

requirement of living in Alaska for six consecutive months.  Thus, although Heller is  



          25        (...continued)  



(Apr. 17, 2003) (testimony of Mark Riehle, staff to Sen. John Cowdery, bill sponsor,  

introducing bill and asking the Committee to co-sponsor the bill in order to demonstrate  

                                                                 

its "patriotic thank you to the members of the Reserves, the Guards, and those in active  

                                                                                                        

duty military").  



          26  

                                                 

                    Compare  former  AS  43.23.008(a)(14)(A)  (2002)  ("180  days  if  the  

                     

individual is not claiming an absence under (1)-(13) of this subsection"), with former  

       

AS 43.23.008(a)(14)(A) (2003) ("180 days in addition to any absence or cumulative  

                                              

absences claimed under (3) of this subsection if the individual is not claiming an absence  

under (1), (2), or (4)-(13) of this subsection").  



                                                               -13-                                                        6849
  


----------------------- Page 14-----------------------

                                                                                                              

able to claim a subsection (a)(16) absence for the first 180 days he spent in Iraq, he does  



not satisfy the statutory eligibility requirements necessary to claim a PFD in 2007.  



          B.        The Eligibility Requirements Of AS 43.23.008 Are Constitutional.  



                                                                                                               

                    Heller also argues that the State's interpretation of the PFD statute violates  



                            

provisions of the U.S. and Alaska Constitutions.  Typically, in cases like this one, we  



                                                                                                                   

have  focused  exclusively  on  Alaska's  equal  protection  clause  because  it  "is  more  



                                                                                                             27  

protective of individual rights than the federal equal protection clause."                                        In this case,  



we analyze the two provisions separately. We take this opportunity to clarify how recent  

                                                                                    



developments in the federal right-to-travel doctrine relate to the constitutional question  

                                                                                         



posed in this case.  As explained below, we conclude that AS 43.23.008(b) is consistent  



                                                                                                               

with the requirements of the U.S. Constitution's equal protection clause and article I of  



the Alaska Constitution.  



                         

                     1.       AS 43.23.008 does not violate the U.S. Constitution.  



                                                                                                                         

                    Heller argues that the statute violates the equal protection clause of the U.S.  



                                                  

Constitution  by  infringing  on  his  constitutionally-protected  right  to  travel,  which  



                                                                       

includes the right to migrate between states.   He characterizes the allowable absence  



provision  as  a  durational  residency  requirement  that  is  aimed  not  at  distinguishing  



                                                         

between residents and non-residents, but rather at distinguishing between two categories  



                                         

of residents - those who are eligible to claim an allowable absence and those who are  



not.  The State responds that the statute furthers a legitimate state interest by ensuring  



that  only  bona  fide  residents  receive  dividends  and  is  therefore  constitutional.  It  



                           

distinguishes the cases invalidating durational residency requirements cited by Heller on  



two  grounds:  First,  none  of  those  cases  concerned  a  state's  use  of  a  residency  



          27  

                     See Underwood v. State, 881 P.2d 322, 324-25 (Alaska 1994) (quoting  

                                          

State v. Anthony, 810 P.2d 155, 157 (Alaska 1991)) (internal quotation marks omitted).  



                                                               -14-                                                             6849  


----------------------- Page 15-----------------------

                                                                 

requirement to verify that an individual is  a bona fide resident; and second, those cases  



                                                                            

did not involve readily portable benefits that are at high risk of abuse.  We agree with the  



State.  



                    Heller is correct that some durational residency requirements have been  



                                                                                                    28  

used to effect unconstitutional discrimination against newcomers.                                        Unconstitutional  



                                                                                            29 

                                                                                               and favoring previously  

discrimination has taken the forms of burdening new residents 



                          30  

established ones.             And the fact that a discriminatory residency requirement is part of  



                                                                                                              

a statutory scheme that provides some benefits to new residents does not by itself spare  



                                        31  

                                                                                

that  statute  from  scrutiny.               But  not  all  residency  requirements  are  constitutionally  



          28        See, e.g., Hooper v. Bernalillo Cnty. Assessor ,   472 U.S. 612, 614, 622- 



24  (1985).    The  Equal  Protection  Clause  of  the  Fourteenth  Amendment  to  the  U.S.  

Constitution  prohibits  states  from  burdening  the  right  to  travel  without  adequate  

justification.  Id. at 618 & n.6.  The right to interstate travel encompasses the right of new  

                                        

residents to establish residency in a new state and be treated equally under the laws of  

                                                               

that state.  Attorney Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 903 (1986) ("[O]ur recent  

                                                                                     

 [right-to-travel] cases have dealt with state laws that, by classifying residents according  

                                                                                

to the time they established residence, resulted in the unequal distribution of rights and  

                                                                                 

benefits  among  otherwise  qualified  bona  fide  residents.").  The  equal-protection  

guarantee in article I of the Alaska Constitution implicates a similar analysis, which is  

considered in Part IV.B.2.  



          29  

                                               

                    See,  e.g.,  Dunn  v.  Blumstein ,  405  U.S.  330,  331,  336,  360  (1972)  

(invalidating under U.S. Constitution durational residency requirement that prevented  

new Tennessee residents from exercising their right to vote for one year).  



          30        See, e.g., Hooper , 472 U.S. at 622-24.  



          31  

                                                              

                    Cf. Saenz v. Roe, 526 U.S. 489 (1999) (invalidating California law under  

which the maximum welfare benefits available to residents of less than one year was  

capped  at  the  level  of  benefits  they  had  been  entitled  to  in  their  previous  state  of  

                   

residence); Zobel v. Williams, 457 U.S. 55, 57-58, 65 (1982) (invalidating PFD plan  

                                                                                                          

under which each adult resident received one dividend unit benefit for each year of  

residency after 1959).  



                                                              -15-                                                         6849
  


----------------------- Page 16-----------------------

          32  

infirm.       We must distinguish between, on the one hand, residency requirements that  



treat residents differently from nonresidents, and on the other hand, durational residency  



                                                                                                         33  

requirements that treat new residents differently from established ones.                                      



                                                                                                         

                    A "durational residency requirement" is a waiting period.  This term is also  



                                                                               

used to describe laws, including waiting periods, that draw distinctions between old and  



                                         

new residents. "Generally, a state has much more authority to draw distinctions between  



                                                                                                                  34  

residents  and  nonresidents  than  between  long-  and  short-term  residents."                                        Thus,  



                                                                  

durational residency requirements are more susceptible to constitutional infirmity than  



                                                                            35  

laws that distinguish residents from nonresidents.      But we hesitate to attach much  



importance to this label because it can be easily misapplied. While the term "durational  



          32        See, e.g., Sosna v. Iowa, 419 U.S. 393, 395, 410 (1975) (upholding Iowa's   



one-year durational residency requirement for filing a divorce action).   



          33        See  Soto-Lopez,  476  U.S.  at  904  n.3  ("We  have  always  carefully  

                           

distinguished between bona fide residence requirements, which seek to differentiate  

between residents and nonresidents, and residence requirements, such as durational,  

fixed date, and fixed point residence requirements, which treat established residents  

differently based on the time they migrated into the State." (citing among others Martinez  

                               

v. Bynum , 461 U.S. 321, 325-30 (1983))); Gilman v. Martin, 662 P.2d 120, 125 (Alaska  

 1983)  ("The  right  to  interstate  or  intrastate  travel  is  impinged  upon  only  when  a  

                                                                                                             

governmental entity creates distinctions between residents based upon the duration of  

their   residency,   and   not   when   distinctions   are   created   between   residents   and  

nonresidents.").  



          34        Williams v. Zobel, 619 P.2d 448, 451 n.7 (Alaska 1980) (citing Vlandis v.  



Kline , 412 U.S. 441, 452-53 (1973); Fisher v. Reiser , 610 F.2d 629, 635 (9th Cir. 1979)),  

                                                                                                   

rev'd on other grounds by Zobel v. Williams, 457 U.S. 55 (1982).  

                                         



          35  

                                             

                    But  see  Mem'l  Hosp.  v.  Maricopa  Cnty.,  415  U.S.  250,  256  (1974)  

(clarifying that prior holding did not imply that durational residency requirements are  

per se unconstitutional); State v. Adams, 522 P.2d 1125, 1127 (Alaska 1974) ("We do  

not     hereby      decide       that    all   durational        residency        requirements          are     ipso     facto  

                                                                                                        

unconstitutional.").   



                                                             -16-                                                        6849
  


----------------------- Page 17-----------------------

                                                                                                                         

residency requirement" may be a useful shorthand in some cases, the key to assessing a  

residency requirement's constitutionality is identifying its purpose.36  We must determine  



                                                           

whether a residency requirement was designed to establish the bona fides of a person's  

intent to remain in the state.37  



                       For purposes of the PFD, AS 43.23.095(7) defines "state resident" as "an  



                                                                           

individual who is physically present in the state with the intent to remain indefinitely in  



                                                                                                        

the state under the requirements of AS 01.10.055."  In turn, AS 01.10.055 provides that  



the "intent to remain" required to establish residency is demonstrated "by maintaining  



                                                                                                                                                 

a principal place of abode in the state for at least 30 days or for a longer period if a  



longer period is required by law or regulation" and "by providing other proof of intent  



                                                                          38  

                                                                              As such, there is no consistent code-wide  

as may be required by law or regulation." 



definition of what it means to be a "resident."   



                       Indeed,  the  legislature  has  defined  "resident"  differently  for  different  



                                                                                        

purposes in another section of the Alaska Statutes, and has done so just as it did in regard  



to defining resident for purposes of PFD eligibility: by using the allowable absence  



provision of AS 43.23.008 to distinguish between residents and non-residents.  At the  



            36         Cf. Brodigan v. Alaska Dep't of Revenue                                , 900 P.2d 728, 734 n.13 (Alaska     



 1995) (evaluating constitutionality of PFD residency requirement by balancing "the  

nature and extent of the infringement on [the right to travel] caused by the classification  

                                                                                        

against the state's purpose in enacting the statute and the fairness and substantiality of  

the relationship between that purpose and the classification," and concluding "the State's  

                                                                                                                                    

purpose   in   awarding   PFDs   only   to   permanent   residents   outweighs   the   minor  

infringement" on the applicants' right to travel).  



            37  

                                                                                                                            

                       Cf. Martinez , 461 U.S. at 325-30 (reasoning that whether disputed statute  

                                                                                                                         

was designed to distinguish bona fide residents from nonresidents was "central question"  

in evaluating its constitutionality under the right-to-travel doctrine).  



            38         AS 01.10.055(b)(1)-(2) (emphasis added).  



                                                                        -17-                                                                  6849
  


----------------------- Page 18-----------------------

                                                                                                                                          

same  time  that  it  adopted  the  amendments  that  are  the  subject  of  this  dispute,  the  



legislature  amended  the  section  of  the  Public  Employment  Relations  Act  defining  



residency as follows:  



                                                                                                       

                         (e) In this section, "state resident" means an individual who  

                                                                  

                         is physically present in this state with the intent to remain  

                         permanently                in     the      state       under          the      requirements                of  

                         AS 01.10.055 or, if the individual is not physically present in  

                                                                     

                         the   state,   intends   to   return   to   the   state   and   remain  

                        permanently                in     the      state        under         the       requirements                of  

                                                                  

                        AS  01.10.055  and  is  absent  only  temporarily  for  reasons  

                                                                                                                         [39] 

                         allowed under AS 43.23.008 or a successor statute.  



                                                                                                                                   

Here, the legislature defined "state resident" as an individual who meets the requirements  



set out in AS 01.10.055 and is either physically present in the state or temporarily absent  



under the allowable absence provision, AS 43.23.008.  This shows that the allowable  



absence provision was intended to distinguish between residents and nonresidents.  The  



legislature clearly contemplated allowing for varying residency requirements depending  



on the context - requiring longer periods of physical presence for some purposes than  



                   40  

for others.             



                                                                      

                         Determining eligibility  for the allowable absence provision of the PFD  



                                                                                                

statute is one such purpose.  The PFD program is particularly susceptible to passers- 

through establishing minimal ties to Alaska while intending to reside elsewhere.41                                                                         As  



            39           Ch. 44,  1, SLA 1998 codified at AS 23.40.210(e) (emphasis added).  



            40           See AS 01.10.055.  



            41           The dissent claims that "[i]t would not be unduly burdensome for the State     



to determine on an individualized basis whether an applicant relying on an allowable   

absence provision is in fact a bona fide resident."  But the State must now process nearly  

700,000 applications every year.  See State of Alaska Department of Revenue, Permanent  

Fund Dividend Division, 2012 Annual Report 8 (2012) ("In total, the division received  

                                                           

                                                                                                                                        (continued...)  



                                                                             -18-                                                                      6849
  


----------------------- Page 19-----------------------

the United States Supreme Court has recognized, the risk of distributing benefits to  



                                                                              42 

                                                      

                                                                                  The PFD is a highly portable  

nonresidents grows if the benefits are "readily portable." 



                                                                                 

cash benefit that can be spent anywhere; and the payment is administered on a one-time,  



annual basis regardless of income limits, making it a particularly attractive target for  

abuse.43  The allowable absence provision magnifies this portability, allowing individuals  



who leave the state for certain purposes to retain their PFD eligibility.44  



                                                                             

                   Moreover, unlike the welfare benefits or voting rights at issue in Saenz v.  



                                                                                                       

Roe  and Dunn v. Blumstein , the PFD program is unique to Alaska.  By establishing a  



                                                       

new state of residency for purposes of voting or welfare benefits, a person gives up the  



                       

right to vote or collect welfare benefits in the prior state of residence.  But individuals  



who come to Alaska to collect a PFD do not give up a permanent-fund cash payment  



         41        (...continued)  



679,106  applications  in   2012.").    An  applicant  can  accumulate  tax,  school,  voter  

registration, and motor vehicle registration  records in a short time - as shown in the  

present  case.  And  an  applicant's  intent  to  return  can  be  accurately  assessed  only  in  

hindsight in many cases. Thus, contrary to the dissent's assertion, it would be quite  

burdensome for the State to determine bona fide residency on an individualized basis.  



         42        Saenz v. Roe, 526 U.S. 489, 505 (1999).  



         43        See Schikora v. State, Dep't of Revenue, 7 P.3d 938, 946 n.30 (Alaska  



2000).   



         44  

                                                                                                          

                   See AS 43.23.008 (listing situations where individual who is absent from  

the state remains eligible for PFD).  Moreover, once an individual has qualified for the  

PFD and is absent from the state under the allowable absence provision, he or she can  

continue to collect the PFD for up to 10 years without  spending any significant period  

of time in Alaska.  See AS 43.23.008(c) ("An  otherwise eligible individual who has been  

eligible for the immediately preceding  10 dividends despite being absent from the state  

                                                                                             

for more than 180 days in each of the related 10 qualifying years is only eligible for the  

current year dividend if the individual was absent 180 days or less during the qualifying  

                                                                                             

year.");  AS  43.23.005(a)(4)  (requiring  otherwise-eligible  applicants  to  spend  72  

consecutive hours in Alaska during the prior two years).  



                                                          -19-                                                    6849
  


----------------------- Page 20-----------------------

from  another  state.    Alaska's  economy  is  a  magnet  for  seasonal  workers  and  other  



                                                                                                              45  

                    

                                                                                                                     In  this  

visitors  who  may  stay  just  long  enough  to  establish  paper  ties  in  Alaska.  



                                          

context, physically residing in the state for six consecutive months is not an excessively  



                                                

long requirement to establish the bona fides of PFD claimants before they depart the state  



- often for lengthy periods of time.  



                                                                                               

                   The legislative history supports the conclusion that AS 43.23.008(b) was  



                                                                                      

enacted  to  ensure  that  only  bona  fide  residents  receive  the  PFD.    The  six-month  



requirement represents the legislature's attempt to "prevent[] someone from coming into  



                                                                                                            

the state for a few days, declaring residency, and then immediately claiming an allowable  



              46 

                                                                                                              

absence."         Comments from several lawmakers during legislative meetings on the 1998  



amendments to the PFD statute reflect general concerns regarding fraud and abuse from  



                                                                                               

out-of-state  applicants  -  particularly  those  in  the  military  -  and  the  difficulty  of  



                                                                                                                  47  

                                                                                                                        The  

determining  whether  an  applicant  has  a  genuine  intent  to  remain  in  Alaska. 



          45       See     STATE       OF    ALASKA ,       DEP 'T      OF    LABOR        &    WORKFORCE            DEV .,  



N                                                                                   

   O N R E S ID E N T S      W O R K IN G        IN     A L A S K A       2009        (2011),         available           at  

http://labor.alaska.gov/research/reshire/NONRES.pdf.  



          46       Testimony of Tom Williams, legislative aide, Tape SFC-98-24, Hearing on  



H.B. 2 Before Sen. Finance Comm., 20th Leg., 2d Sess. (Feb. 9, 1998).  



          47       See Testimony of Sen. Dave Donley at #154,  Tape SFC-97, Hearing on  



H.B. 2 Before Sen. Finance Comm., 20th Leg., 1st Sess. ( May 7, 1997) (expressing  

concern regarding fraud and abuse from out-of-state applicants and describing fraud as  

a "serious problem" that was "very difficult to police"); Testimony of Sen. Jerry Mackie  

                                           

at #6, Tape SSAC-97, Hearing on H.B. 2 Before Sen. State Affairs Comm., 20th 

                                                                                                                 Leg., 1st  

Sess. (Feb. 20, 1997) (expressing concern regarding military personnel who come to  

Alaska for a short period of time, then leave "with probably no intention of returning,"  

                                                                                                          

but remain eligible for the PFD); Testimony of Rep. Pete Kott at #6, Tape SSAC-97,  

Hearing on H.B. 2 Before Sen. State Affairs Comm., 20th Leg., 1st Sess. (Feb. 20, 1997)  

                                                                                                                 

(characterizing intent as a "difficult issue" and "the heart of the problem" of determining  

                                                                                           

                                                                                                          (continued...)  



                                                            -20-                                                      6849
  


----------------------- Page 21-----------------------

legislative  history  also  demonstrates  that  lawmakers  were  aware  that  the  residency  



          48  

statute       contemplated  allowing  other  statutes,  such  as  the  PFD  statute,  to  include  



                                           49  

additional tests for residency.    Given the concerns regarding abuse and the difficulty  



in determining the bona fides of an applicant's declared intent to remain, the six-month  



requirement was enacted in an attempt to distinguish residents from nonresidents.  



                   A comparison to the earlier version of the PFD statute is also instructive.  



                                                                       

Before  1998,  PFD  claimants  were  required  to  demonstrate  their  bona  fide  intent  to  



                

remain in Alaska by remaining physically in the state unless absent for a legislatively  



                                                      50  

                                                          Under the former statute, the list of legislatively  

approved purpose and length of time. 



                                                                                                            51  

approved absences was incorporated into the definition of "state resident."                                     And there  

                                                                                      



is no dispute that the former statutory scheme - with its residency requirements - was  

                                                                        



                                                                   52  

consistent  with  the  right-to-travel  doctrine.                        The  1998  amendment  created  an  



          47        (...continued)  



residency for out-of-state applicants such as members of the military or students).  



          48       AS 01.10.055.  



          49       Testimony of Rep. Bettye Davis, Tape No. HFC-97-15, Hearing on H.B.  



2 Before House Finance Comm., 20th Leg., 1st Sess. ( Jan. 30, 1997).  



          50       See former AS 43.23.095(8) (1997); 15 AAC 23.163(c) (1997).  



          51       See former AS 43.23.095(8) (1997).  



          52       See  Church v. State, Dep't of Revenue,  973 P.2d 1125, 1131 (Alaska 1999),   



("[T]he  PFD  regulations  and  statutes  in  question  are  bona  fide  requirements  which  

ensure that benefits 'provided for residents are enjoyed only by residents,' and as such  

                  

do not violate the constitutional right of interstate travel." (quoting Attorney Gen. of N.Y.  

                                                          

v. Soto-Lopez, 476 U.S. 898, 904 n.3 (1986))).  



                                                            -21-                                                       6849
  


----------------------- Page 22-----------------------

                                                                                                                    53  

                                                                                                       

"allowable absence" provision, separate from the definition of "state resident."                                        It is  



significant that the substance of the amended statute mirrored the substance of the earlier  

statute and regulations.54  



                   Heller acknowledges that the 1998 amendment was only designed to effect  



                                                                                             

"technical changes."  Nevertheless, he goes on to argue that the amendment renders the  



statute unconstitutional because, following the amendments, a person could meet the  



                                          

minimum requirements for  being a resident spelled out in AS 43.23.095 but remain  

ineligible for a PFD as a result of the allowable absence provision in AS 43.23.008(a).55  



We cannot agree with Heller's analysis.  



                   It is well established that "the residency requirement for PFD eligibility  



                                                                        56  

may  differ  from  other  residency  requirements."                            Eligibility  for  the  PFD  includes  



                                  

meeting a definition of residency tied to physical contact to the state, which may be more  



                                                                                                  57  

                                                                                                      Other provisions  

difficult to meet than the definition of residency for other purposes. 



                                                                                    58  

                                                                                                      

set out threshold requirements for being a state "resident,"                           while AS 43.23.008(b) sets  



                                                     

out a requirement specific to PFD applicants who spend a substantial period of time  



          53       Ch. 44,  5, 7, SLA 1998.  



          54        Compare   former   AS   43.23.008  (1999),  with  former  AS  43.23.095(8)  



(1997), and 15 AAC 23.163(c) (1997); see also Church , 973 P.2d at 1127-28 & n.2  

(interpreting pre-1998 statute and regulations).  



          55       See former AS 43.23.008 (2007).  



          56       Schikora  v.  State,  Dep't  of  Revenue,  7  P.3d  938,  942  (Alaska  2000)  



(quoting Brodigan v. State, Dep't of Revenue , 900 P.2d 728, 733 n.12 (Alaska 1995))  

                                 

(internal quotation marks omitted); see also  Church, 973 P.2d at 1129.   

                                                                                                           



          57  

                                   

                    Compare AS 43.23.008, with AS 01.10.055.  



          58       See AS 01.10.055.  



                                                            -22-                                                       6849
  


----------------------- Page 23-----------------------

                                                     59  

residing  outside  of  state  borders.                      Far  from  singling  out  newcomers  for  additional  

burdens,60 this provision was designed to make sure that PFDs - highly portable cash  

                                                                                          

                                                                                                 61   Like  its  predecessor,  

payments  sent  once  a  year  -  went  only  to  state  residents.  

                                                                                                       



           59        We recognize that although "[t]here is a presumption that the same words                         



used twice in the same act have the same meaning,"  Jonathan v. Doyon Drilling, Inc. ,  

890 P.2d 1121, 1124 (Alaska 1995) (quoting Kulawik v. ERA Jet Alaska                                             , 820 P.2d 627,  

634 (Alaska 1991)), "it is possible to interpret an imprecise term differently in two     

separate sections of the statute which have different purposes." 2A                                       NORMAN J.   SINGER  



                                                                                                                

&  J.D.  SHAMBIE  SINGER ,  SUTHERLAND  STATUTORY  CONSTRUCTION    64:6  (7th  ed.  

2008).  As we have noted, the term "resident" is by definition imprecise, because it  

requires "maintaining a principal place of abode in the state for at least 30 days or for a  

                                                                                 

longer  period  if  a  longer  period  is  required  by  law  or  regulation."    AS  01.10.055.  

(Emphasis added.)  And the two provisions under discussion have different purposes:  

one  determines  eligibility  for  the  PFD  while  the  other  determines  eligibility  for  the  

allowable  absence  provision.    As  such,  it  is  consistent  with  statutory  principles  of  

construction to assign different meanings to the term "resident" in different sections of  

the PFD statute.  Finally, here these different meanings are compelled by the convincing  

                                                

evidence of legislative intent described above.  



           60        New   residents   who   have   not   fulfilled   the   six   consecutive   months  



requirement of AS 43.23.008(b) are not the only Alaska residents ineligible for PFDs.  

Previously established residents may be ineligible for a given year's PFD if during the  

qualifying  year  they  fail  to  comply  with  the  allowable  absence  provisions,  by,  for  

example, staying out of state for more than 45 days without claiming any absences under  

                                                                                                           

subsection (a)(1)-(16).  A long-standing resident may be ineligible for a PFD for failure  

to submit required proof of eligibility or for failure to comply with the requirements of  

other state or federal laws.  See AS 43.23.005(a)(1), (a)(7), (d) (2007).  



           61        Cf.  Church,  973  P.2d  at  1130  (considering  six-month  restriction  on  

                                          

allowable  absences  in  earlier  PFD  statute  and  concluding  "[t]he  objective  of  the  

challenged statutes and regulations is to ensure that only permanent residents receive  

dividends" (citing Brodigan , 900 P.2d at 732)).  



                                                                 -23-                                                           6849
  


----------------------- Page 24-----------------------

therefore, the current PFD statute sets out "bona fide requirements which ensure that  



                                                                                              62  

benefits 'provided for residents are enjoyed only by residents.' "                                



                   The WWAMI program, a collaborative medical school program among  



universities in Washington, Wyoming, Alaska, Montana, and Idaho and the University  



of  Washington  School  of  Medicine,  employs  a  similar  eligibility  scheme.    Alaska  



                                                                                                         

WWAMI participants "must maintain at all times an intent to return to [Alaska] upon  



                                                                                                         

completion of the program" and must have physically resided in Alaska for at least two  



consecutive  years  prior  to  beginning  the  program,  subject  to  an  allowable  absence  



provision   -   which   also   requires   two   consecutive   years   of   physical   residence  



                                                63  

immediately prior to the absence.                    



                   Because the statute is a bona fide residency requirement, rational basis  



                                                                                    

review is the appropriate level of scrutiny.  While some residency requirements have  



          62       Id . at 1130 (quoting Attorney Gen. of N.Y. v. Soto-Lopez                      , 476 U.S. 898, 904  



n.3 (1986)) (interpreting pre-1998 PFD statute and regulations).  



          63       See 20 AAC 19.030(a) (2012); see also 20 AAC 18.020 (2012) (restricting  

                                       

eligibility for the Professional Student Exchange program to state residents, and stating  

                                                                                                

"[f]or purposes of this section, a person is a resident of the state if that person physically  

                                                

resides  in  the  state  and  maintains  a  domicile  in  the  state  during  the  12  consecutive  

months before the date of application for certification[,]" subject to an allowable absence  

provision that also requires prior 12-month period of physical residence).  



                                                            -24-                                                      6849
  


----------------------- Page 25-----------------------

                                      64                                                                                           65  

                                                                     

warranted strict scrutiny,               others have been subject to a less stringent form of review. 



                                                                                                                       66 

                                                                                                              

The United States Supreme Court's most recent case on the topic, Saenz v. Roe,   applied  



heightened scrutiny to a durational residency requirement affecting eligibility for welfare  



             67  

                                                                                           

benefits.         Although  Saenz  suggested that all durational residency requirements are  



                                               68  

                                                                                                           

subject to heightened scrutiny,                   the Court recognized the continuing validity of earlier  



          64         See,  e.g., Soto-Lopez, 476 U.S.  at 904-06 (applying heightened scrutiny to     



statutory civil-service preference for veterans who entered armed forces while residing                         

in New York); Mem'l Hosp. v. Maricopa Cnty. , 415 U.S. 250 (1974) (reviewing one- 

year residency requirement on indigent medical care); Dunn v. Blumstein , 405 U.S. 330  

                        

(1972) (reviewing one-year residency requirement on voting); Shapiro v. Thompson, 394  

U.S.   618   (1969)   (reviewing   one-year   residency   requirement   on   welfare-benefit  

eligibility).  



          65  

                                                                                                    

                     See, e.g., Martinez v. Bynum , 461 U.S. 321, 328 n.7, 333 (1983) (upholding  

residency requirement on public school access under rational-basis review); Sosna v.  

Iowa ,  419  U.S.  393,  395  (1975)  (upholding  Iowa's  one-year  durational  residency  

requirement for  filing a divorce action);  Vlandis v. Kline, 412 U.S. 441, 452 (1973)  

                           

("Nor should our decision be construed to deny a State the right to impose on a student,  

                            

as one element in demonstrating bona fide residence, a reasonable durational residency  

requirement, which can be met while in student status.") (emphasis added);  Sturgis v.  

 Washington,  368  F.  Supp.  38  (W.D.  gWash.  1973)  (upholding  one-year  residency  

                                  

requirement  for  tuition  under  rational-basis  test),  aff'd  summarily  by  Sturgis  v.  

                           

 Washington, 414 U.S. 1057 (1973); Starns v. Malkerson, 326 F. Supp. 234 (D. Minn.  

                                                                                                     

 1971) (upholding one-year waiting period on in-state tuition eligibility under rational- 

                                                                                    

basis test), aff'd summarily by Starns v. Malkerson, 401 U.S. 985 (1971).  



          66         526 U.S. 489 (1999).  



          67         See id. at 492, 504, 511 ("Neither mere rationality nor some intermediate  



standard  of  review  should  be  used  to  judge  the  constitutionality  of  a  state  rule  that  

                                                    

discriminates against some of its citizens because they have been domiciled in the State  

for less than a year.").  



          68        Id.  (describing the application of strict scrutiny to  discriminatory residency  



requirements as "categorical").  



                                                               -25-                                                          6849
  


----------------------- Page 26-----------------------

                                              

cases   that   had             applied         lower   levels   of   scrutiny   to   distinguishable   residency  



                        69  

requirements.               In fact,  Saenz carefully distinguished cases like this one, where the  



                                 

challenged statute is designed to verify bona fide residency, from cases falling under the  



                                                            70  

general rule of heightened scrutiny.                             In Schikora we took up the question that Saenz did  



                                                                        

not resolve and made clear that rational basis review applies to classifications which  



                                                                                      71  

                                                                                                  

distinguish bona fide residents from nonresidents.                                        We conclude that AS 43.23.008(b)  



is consistent with constitutional requirements because the statute directly advances a state  

interest that is undoubtedly "legitimate."72  



                                                                                                                                            

                       2.	         AS 43.23.008 does not violate the equal protection clause of the  

                                   Alaska Constitution.  



            69         Saenz, 526 U.S. at 505 (citing                       Sosna, 419 U.S. at 395; Vlandis , 412 U.S.  



at 441).       For further discussion on the level of scrutiny, compare                                          Soto-Lopez, 476 U.S.   

at 904-06          (applying heightened scrutiny), with  id.  at 913 (Burger, C.J., concurring)  

(urging an initial rational basis analysis and concluding that challenged statute fails even       

that test), and id. at 916 (White, J., concurring) (concluding that challenged statute was     

irrational).  



            70  

                                            

                       See Saenz, 526 U.S. at 505 ("We . . . have no occasion to consider what  

                                                               

weight might be given to a citizen's length of residence if the bona fides of her claim to  

state citizenship were questioned.").  



            71         See Schikora v. State, Dep't of Revenue, 7 P.3d 938, 946 n.30 (Alaska  



2000).  



            72  

                                                                                                            

                       Dunn  v.  Blumstein ,  405  U.S.  330,  351  (1972)  ("The  State's  legitimate  

purpose  is  to  determine  whether  certain  persons  in  the  community  are  bona  fide  

                                                                                                                                        

residents."). Indeed, the State's interest is probably "substantial." Soto-Lopez, 476 U.S.  

                                                               

at 904 n.3 ("A bona fide residence requirement, appropriately defined and uniformly  

applied, furthers the substantial state interest in assuring that services provided for its  

                                                                                                                                      

residents are enjoyed only by residents.  Such a requirement . . . generally . . . does not  

                                                                                                                          

burden or penalize the constitutional right of interstate travel, for any person is free to  

                                    

move to a State and to establish residence there." (citing Martinez v. Bynum , 461 U.S.  

321, 328-39 (1983))).  



                                                                       -26-	                                                                 6849
  


----------------------- Page 27-----------------------

                                                                                             

                      For many of the same reasons discussed above, AS 43.23.008 does not  



                                                                                    

violate the Alaska Constitution.  But we follow a slightly different approach under our  



                                                                                                                    

state  constitution.  "In  analyzing  a  challenged  law  under  Alaska's  equal  protection  



provision, we first determine what level of scrutiny to apply, using Alaska's 'sliding  



                            73  

scale' standard."     "The 'weight [that] should be afforded the constitutional interest  



impaired by the challenged enactment' is 'the most important variable in fixing the  



                                                  74  

appropriate level of review.' "                        



                      According            to    Heller,        the     six-month           residency          requirement            is    an  



                                                                                                                       

impermissible burden on his constitutionally-protected rights to travel, to engage in an  



economic endeavor within a particular field, to be free from a penalty upon short-term  



residents, and to keep and bear arms.  Consequently, Heller contends, the requirement  



triggers heightened scrutiny under Alaska's equal protection clause.  



                                                                                                       

                      The  State  responds  that  because  the  dividend  is  an  economic  interest,  



AS 43.23.008(b) only warrants minimum scrutiny under Alaska's equal protection test.  



                  

The State goes on to assert that the statute bears a fair and substantial relationship to  



                                                                                                     

accomplishing the legitimate objective of limiting payments to bona fide residents, and  



therefore does not violate equal protection under the state constitution.  



                                                                 

                      We agree with the State. We have applied our constitutional balancing test  



                                                                                                                                      75  

                                                                                                                                          We  

to similar residency requirements in the past, and found them to be constitutional. 



           73         State v. Planned Parenthood of Alaska                             , 28 P.3d 904, 909 (Alaska 2001)   



(citing  Matanuska-Susitna  Borough  Sch.   Dist.   v.  State ,  931  P.2d  391,  396  (Alaska  

1997)).  



           74  

                                                                   

                      Id.  (quoting  Alaska  Pac.  Assurance  Co.  v.  Brown ,  687  P.2d  264,  269  

(Alaska 1984)).  



           75  

                                            

                      See  Church v. State, Dep't of Revenue, 973 P.2d 1125, 1127-28 (Alaska  

                                                                                                                          (continued...)  



                                                                     -27-                                                              6849
  


----------------------- Page 28-----------------------

have noted that the PFD is an economic interest that does not usually warrant strict  



             76  

                                                              

scrutiny,       but that is not the only factor in the analysis.  It is important that the burdens  



                                                                       

on the alleged rights in this case are minimal:  The six-month requirement does not bar  



residents  from  traveling  for  shorter  periods  of  time  under  the  AS  43.23.008(a)(16)  



                                                            

allowance absence provision, nor does it prevent bona fide residents from spending time  



                                         

out of state once they have satisfied the six-month period of AS 43.23.008(b).  Assuming  



                                                                             

that the right to work in an economic endeavor in a particular field is implicated in this  



case,  we  conclude  that  the  six-month  requirement  does  not  prevent  Heller  from  



                                                                                                      

employment in the military; it simply provides that before military personnel can claim  



state resources through the PFD program, they must spend six months in state.  



                                                                                             

                    Nor do we find merit in Heller's argument that AS 43.23.008(b) burdens  



                                77  

other interests of his.               As we said in  Church v. State, "[A]llowing only enumerated  



          75        (...continued)  



1999) (reviewing PFD denial that was based on claimant having spent more than 180  

                                                                           

days out of state caring for dying relative); Brodigan v. State, Dep't of Revenue, 900 P.2d  

                                    

728, 730-31 & n.7 (Alaska 1995) (upholding PFD denial where claimants' extended  

                               

absence from Alaska supported Department's finding that they lacked "intent to remain  

                      

permanently in the state"); see also  Cousins v. State, Dep't of Revenue, Mem. Op. & J  

                                                                                                                        

No. 1026, 2001 WL 34818200, at *1-2 (Alaska, May 9, 2001) (upholding PFD denial  

where claimants were absent from Alaska for longer period than was authorized by  

allowable absence provisions).  



          76  

                                          

                    Church,  973  P.2d  at  1130  (citing State  v.  Anthony,  810  P.2d  155,  158  

(Alaska 1991)).  



          77  

                                                                                                                        

                    We find no merit in Heller's contention that AS 43.23.008 burdens his right  

                                                                        

to bear arms under the Second Amendment of the U.S. Constitution. Heller argues that  

                                                                                                                    

the constitutionally-protected right to bear arms encompasses a right to serve in the U.S.  

                                                                                                              

military, but the cases Heller cites - McDonald v. City of Chicago, Ill., 130 S.Ct. 3020  

(2010) (incorporating Second Amendment against states); District of Columbia v. Heller,  

554  U.S.  570,  598-601  (2008)  (invalidating  District  of  Columbia  gun  restrictions);  

                                                                                                               (continued...)  



                                                               -28-                                                        6849
  


----------------------- Page 29-----------------------

                                                                                                     

excusable absences unless a person has been in the state more than half a year bears a fair  



and  substantial  relationship  to  ensuring  that  the  dividend  goes  only  to  permanent  

residents."78  



         V.        CONCLUSION  



                                                                                                

                   Because Heller is not eligible for the 2007 PFD under AS 43.23.008, and  



                                                                                       

because this statute is consistent with the requirements of the United States and Alaska  



Constitutions, we AFFIRM the judgment of the superior court.  



          77       (...continued)  



 United States v. Miller, 307 U.S. 174, 178-82 (1939) (describing historical roots of  

Second Amendment) - do not involve military service.  To the extent that Heller raises  

                                             

a distinct "right-to-travel" argument under the privileges and immunities clause of the  

                                                                                        

U.S. Constitution, we decline to address it for inadequate briefing.  See Martinson v.  

                                                                                                        

Arco Alaska, Inc. , 989 P.2d 733, 737-38 (Alaska 1999) (arguments inadequately briefed  

are waived).  



          78       Church, 973 P.2d at 1130-31.  



                                                          -29-                                                    6849
  


----------------------- Page 30-----------------------

WINFREE, Justice, with whom STOWERS, Justice, joins, dissenting in part.  



                   I agree with the court's determination that Richard Heller did not meet  



AS 43.23.008(b)'s eligibility requirements for an allowable absence from Alaska in  



        1  

                                                                                                                   

2006.      But I disagree with the court's determination that AS 43.23.008(b) is a bona fide  



                                                                                                                      

residency requirement and thus does not violate the United States Constitution.  In my  



                                                                                                   

view AS 43.23.008(b) is an unconstitutional durational residency requirement, and I  



therefore would reverse the superior court's decision and order that Heller is qualified  



to receive a Permanent Fund Dividend (PFD) for 2007 (based on his 2006 qualifying  

year of residency).2  



                   We must carefully distinguish between bona fide residency requirements,  

                                                                              



which       treat   residents       differently        from     nonresidents,   and           durational        residency  

                                                                                      

                                                                                                                  3  As the  

requirements, which treat new residents differently from established residents.  

                                                                                                                      



court correctly states today, "durational residency requirements are more susceptible to  

                                                                                                   

constitutional infirmity than laws that distinguish residents from nonresidents."4                                       If a  



          1        As  the  court  notes  at  Op.  6,  n.10,  in  2008  the  legislature  amended  



AS 43.23.008.  See Ch. 36,  1-2, SLA 2008.  Although not substantively relevant to  

                                                             

this case, the amendments caused the subsections to be numbered differently.  Because  

this dispute arose under the 2007 statute, I, like the court, follow the numbering existing  

prior to the 2008 amendment.  



          2        Because I conclude that the statute violates the United States Constitution,  

                                                                       

I do not address whether it also violates the Alaska Constitution.  



          3        Attorney Gen. of N.Y. v. Soto-Lopez , 476 U.S. 898, 903 n.3 (1986) ("We  



have always carefully distinguished between bona fide residence requirements, which  

seek to differentiate between residents and nonresidents, and residence requirements,  

such  as  durational,  fixed  date,  and  fixed  point  residence  requirements,  which  treat  

                                                       

established residents differently based on the time they migrated into the State.").  



          4  

                                                                                

                    Op.  at  16.    Compare  Soto-Lopez,  476  U.S.  at  904-05  &  n.4  (stating  

                                                                                                           (continued...)  



                                                            -30-                                                       6849
  


----------------------- Page 31-----------------------

                                                                                                          5  

durational   residency   requirement   burdens   the   right   to   migrate,    under   federal  



                                                      

constitutional analysis the State of Alaska is required to show that the law is necessary  

to further a compelling state interest.6  



                    The distinction between a bona fide residency requirement and a durational  



residency  requirement  does  not  depend  merely  on  the  requirement's  purpose.    If  it  



                                                         

actually,  purposely,  or  incidentally  burdens  the  right  to  migrate,  a  state  residency  



requirement discriminating against citizens who have been residents for a relatively short  

period is a durational residency requirement subject to strict scrutiny.7  The United States  



          4         (...continued)  



durational residency requirement burdening right to migrate is subject to strict scrutiny),  

                                                                            

with  Martinez  v.  Bynum,  461  U.S.  321,  328  n.7  (1983)  ("A  bona  fide  residence  

                                                                          

requirement implicates no 'suspect' classification, and therefore is not subject to strict  

scrutiny.").  



          5         The right to travel, or "the right of free interstate migration," is "a basic  



right under the Constitution" and "includes the freedom to enter and abide in any State  

                                                                                                         

in the Union."  Soto-Lopez, 476 U.S. at 901-02 (quoting Dunn v. Blumstein , 405 U.S.  

                                                                                                                      

330, 338 (1972)) (internal quotation marks omitted); see also Laurence H. Tribe, Saenz  

Sans Prophecy:  Does the Privileges or Immunities Revival Portend the Future - or  

Reveal the Structure of the Present? , 113 HARV .  L.  REV .   110, 149-50 (1999):  

                     [T]he [right to travel] cases appear to stand for a principle  

                                                                                          

                    according to which those benefits of living in a given state  

                                         

                    that   are   constitutive   of   state   citizenship   and   that   may  

                                                                                                

                    accordingly be restricted to the state's own citizens may not  

                                                                                

                    be still further restricted so that some citizens, based solely on  

                                                                                         

                    the  duration  or  pedigree  of  their  citizenship,  are  in  effect  

                           

                    treated as "more equal than others."  



          6         Soto-Lopez, 476 U.S. at 904-05 & n.4.  



          7  

                                                                     

                    See id. at 903 (stating Supreme Court's cases have "principally involved"  

indirect burdening of right to migrate, but "[a] state law implicates the right to travel  

                                                                                                                       

when" it actually, purposely, or indirectly deters such travel); State v. Adams, 522 P.2d  

                                                                                                               (continued...)  



                                                              -31-                                                         6849
  


----------------------- Page 32-----------------------

                                                     

Supreme Court more recently has stated that because "the right to travel embraces the  



citizen's right to be treated equally in [a] new State of residence, the discriminatory  



classification  is  itself  a  penalty,"  regardless  of  actual  or  incidental  deterrence  to  

migration, and thus subject to strict scrutiny review.8  



                                                                                                                            

                    It is against this backdrop that AS 43.23.008(b) must be considered.  I start  



                                                                             

with the unremarkable proposition laid out by the court that the legislature may define  

"resident" differently for PFD eligibility than for other purposes.9  I then look to see how  



                                                                             

the legislature actually defined "resident" for PFD eligibility when Heller applied for a  



2007 PFD.  Prior to statutory amendments in 1998, the list of legislatively approved  



                                                                                      10 

                                                                                         and, as the court notes, that  

absences was incorporated in the definition of "resident" 



                                                                 11 

                                                                                                              

definition had passed constitutional muster.                         But, as the court also notes, the legislature  



          7         (...continued)  



1125, 1131 (Alaska 1974) ("In our view, the nature of the benefit withheld by the state  

                                                                                         

is relevant only to judging the relative importance of the competing state interest, not to  

                                                                            

determining the applicable standard of judicial review.").  



          8         Saenz v. Roe, 526 U.S. 489, 504-05 (1999).  



          9  

                                                                                 

                    Op. at 9, n.19 (quoting Schikora v. State, Dep't of Revenue, 7 P.3d 938, 942  

(Alaska 2000) (" '[T]he residency requirement for PFD eligibility may differ from other  

residency requirements.' ") (quoting Brodigan v. Alaska Dep't of Revenue , 900 P.2d 728,  

733 n.12 (Alaska 1995))).  



          10        See former AS 43.23.095(8) (1997).  



          11  

                                                                                                     

                    Op. at 21; see also Church v. State, Dep't of Revenue, 973 P.2d 1125, 1131  

                         

(Alaska  1999)  ("[T]he  PFD  regulations  and  statutes  in  question  are  bona  fide  

                                

requirements which ensure that benefits 'provided for residents are enjoyed only by  

                         

residents,'  and  as  such  do  not  violate  the  constitutional  right  of  interstate  travel."  

(quoting Soto-Lopez, 476 U.S. at 904 n.3)).  



                                                              -32-                                                         6849
  


----------------------- Page 33-----------------------

changed that framework by creating an "allowable absence" provision separate and apart  

                                                                                                              

from the definition of "resident."12  

                                                         



                     The court finds it "significant that the substance of the amended statute  

mirrored the substance of the earlier statute and regulations."13 And the court makes  



much of Heller's purported "acknowledgment" that the statutory changes were "only . . .  

                                                                                                                                     



                                  14  

'technical changes.' "                 But the relevant portion of Heller's brief from which the court  

                                                                                                



makes this point was Heller's argument that the statutory change "made compliance with  

                                               



the new allowable absence statute (AS 43.23.008) a separate eligibility requirement from  

                                                                               



that of residency."  Heller argued that this change was intentional and  for a specific  

                                                                                                                   



purpose, quoting a Department of Law representative during a 1998 legislative hearing,  

                                                                                                   



as follows:  



                                                                             

                     The  bill  also  makes  a  number  of  technical  changes  all  of  

                     which   we   support.                 It   moves   the   allowable   absences  

                     provisions  out  of  the  definition  and  into  the  body  of  the  

                                                                                  

                     legislation,  which  allows  us  to  tell  people,  even  though  

                     you're a missionary and out of state and believe that you're  

                     an Alaskan, we don't have to tell them they're not a resident.  

                                                                

                     What we can tell them, if this legislation goes through, is that,  

                     even though they may really be a resident, they don't qualify  

                                                                   

                                                                                                    [15] 

                     for a dividend, because they're just not on the list.  



                     I do not read from Heller's briefing any kind of concession that the change  

                                                                                                



was technical and not substantive, nor would such a concession mean much with respect  

                                                                                                    



           12        Op. at 21-22 (citing ch. 44,  5, 7, SLA 1998).  



           13        Op. at 22.  



           14        Op. at 22.  



           15        Heller attributed this statement as follows:  "Tape of hearing before Senate     



Finance Committee on H.2, Feb. 9, 1998, Tape SFC-98 #24, testimony of Deborah Vogt  

(Dept. of Law)."  



                                                                 -33-                                                           6849
  


----------------------- Page 34-----------------------

                                                                                                                       

to a question of law.  In my view the change was very substantive:  the Department of  



                                                                                                       

Revenue wanted to change the definition of residency so it would not have to deny PFD  



                                  

applications based on lack of residency, and it proposed doing so by removing allowable  



                                                                                                

absence considerations from the residency definition.  The court, not Heller, posits that  



the change in definition of "resident" really was not a substantive change, and that the  



allowable absence framework really continued to be part of the PFD residency definition.  



                                                                                               

                       After the statutory change, for the entire statutory chapter regarding PFDs  



(AS 43.23), "resident" means:  



                       an individual who is physically present in the state with the  

                                                                                                            

                       intent        to     remain         indefinitely            in    the      state      under         the  

                       requirements  of  AS  01.10.055  or,  if  the  individual  is  not  

                       physically present in the state, intends to return to the state  

                       and remain indefinitely in the state under the requirements of  

                                                 [16] 

                       AS 01.10.055.  



                       Alaska Statute 01.10.055 provides the additional residency requirements  



                                                                                                                                      

that  the  person  "make  a  home  in  the  state"  and  demonstrate  an  intent  to  remain  



                                                                                                      

indefinitely "by maintaining a principal place of abode in the state for at least 30 days"  

                                                                                                                                            17   The  

and "providing other proof of intent as may be required by law or regulation." 



Department's relevant regulations require "establishment and maintenance of customary  

ties indicative of Alaska residency and the absence of those ties elsewhere."18  



            16         AS 43.23.095(7).  



            17         AS 01.10.055(a)-(b).   



            18          15 Alaska Administrative Code  (AAC) 23.143(a) (2013).  The Department  



also promulgated a list of objective indicia that provide proof bearing on a person's   

intent to remain indefinitely in the state.  15 AAC 23.173(g).  



                                                                        -34-                                                                   6849
  


----------------------- Page 35-----------------------

                         The court concedes "there is no dispute about Heller's intent to remain in                              

Alaska or whether he satisfie[d] the preliminary requirement of AS 01.10.055."                                                                        19   The  



court instead finds a dispute concerning "Heller's qualifications under the PFD statute"20  

            



- but that dispute has nothing to do with residency qualifications, it has to do with  

                                                                                   



residents' qualifications for allowable absences.  The residency requirement for PFD  



                                                                                                                                   

purposes is set out in AS 43.23.095(7), and that requirement is that the individual be  



                                                                                        

"physically present in the state with the intent to remain indefinitely in the state under  



                                                                                                                  

the requirements of AS 01.10.055"; there can be no dispute that Heller was physically  



present  in  the  state  with  the  intent  to  remain  indefinitely  under  the  requirements  of  



                                                                                                                                

AS 01.10.055.  In short, Heller was an Alaska resident when he was deployed to Iraq in  



2005 and he was an Alaska resident in the qualifying year 2006.  



                         Having  concluded  that  Heller  was  an  Alaska  resident  when  he  was  



                    

deployed  to  Iraq,  I  now  look  at  the  "allowable  absences"  provisions  that  were  



intentionally  severed  from  the  PFD  residency  definition  in  1998.    Alaska  Statute  



43.23.008(a)(3) established an allowable absence for a person "serving on active duty  



                                                                                                          

as a member of the armed forces of the United States."  There is no dispute that Heller  



fit this description in 2005-2006.  



                         But under AS 43.23.008(b), a PFD applicant could not claim an allowable  



absence "unless the individual was a resident of the state for at least six consecutive  

                                                                                       21   The court's remarkable determination  

months immediately before leaving the state."                                                                      



that here the word "resident" is ambiguous and its interpretation that "a resident of the  

                                                                                   



state for at least six consecutive months" really means "physically reside in the state for  

                                                                                                                                         



             19          Op. at 9 n.19.  



             20          Id .  



             21          Former AS 43.23.008(b) (2007).  



                                                                              -35-                                                                             6849  


----------------------- Page 36-----------------------

                                                                                      22  

at  least  six  consecutive  months"  comes  from  thin  air.                                The  Department  makes  no  



                 

argument  for  ambiguity  or  the  need  for  interpretation  -  as  the  court  notes,  the  



Department argues that although Heller was an Alaska resident, he was not an Alaska  



                                                                                             23  

                                                                                                           

resident  for  the  six  months  required  by  AS  43.23.008(b).                                  And  the  Department's  



                                                                                                           

implementing regulation takes a distinctly contrary view from that of the court.  The  



                                        

regulation first states that "an individual who has never been physically present in Alaska  



                                                                                               24  

may  not  claim  an  allowable  absence  under  AS  43.23.008."                                      It  then  states  that  the  



                                                                                                             

predicate requirement for an allowable absence is that the person be "a state resident for  

at least 180 days immediately before departure from Alaska."25  



                                                                                                                    

                     Nothing in the statute or the regulation suggests that physical presence for  



                                                                                                                   

six consecutive months before departure from Alaska is a requirement for an allowable  



absence.  The requirement is residency for six consecutive months before departure from  



            26  

Alaska.           A  consecutive  six-month  physical  presence  requirement  for  an  allowable  



                                                                          

absence, which necessarily implies continuous physical presence, will come as a great  



                                                      

surprise to the many high school graduates who take an out-of-state spring break or  



          22         Op. at 10.  



          23         See Op. at 8.  



          24         15 AAC 23.163(a) (emphasis added).  



          25         15 AAC 23.163(b)(1) (emphasis added).  



          26         It is clear from the regulation that the Department was aware of the physical       



presence  concept,  and  therefore  could  have  set  a  consecutive  six-month  physical  

presence requirement, but did not do so.  The court states that "we give due deliberative  

                                                      

weight  'to  what  the  agency  has  done,  especially  when  the  agency  interpretation  is  

                                                                                                             

longstanding.' " Op. at 5.  It appears that for the nearly ten years before this matter arose,  

                                                         

and to this day, the Department interprets AS 43.23.008(b) to require a person to be a  

state resident for six months, not to require six consecutive months of physical presence.  

                                                   

Yet the court disregards the Department's position and fails to explain why.  



                                                                -36-                                                          6849
  


----------------------- Page 37-----------------------

                                                                                              27  

                                                                                                              

summer vacation before departing for a college outside Alaska.                                     Under the court's  



                                                                       

analysis these students would be ineligible for a statutorily allowable absence, as would  



a person who went back and forth to Seattle for medical treatment and then later stayed  



                                                                                        28  

                                                                                             Even a cursory look at  

in Seattle for an extended period of time receiving treatment.  



AS  43.23.008(a)'s  allowable  absences  reveals  that  outside  the  context  of  Heller's  



circumstances, the court's interpretation of AS 43.23.008(b) as requiring a consecutive  



six-month  physical  presence  in  Alaska  to  support  an  allowable  absence  is  patently  



                  29  

unworkable.            



                                                        

                   The court's response to  this observation demonstrates the fallacy of its  



                                

position - the court disavows a "continous" consecutive six-month physical presence  



requirement  by  stating  that  "the  concept  of  residency  does  not  preclude  temporary  



                                                                          30  

                                                                                         

absences as long as the intent to remain continues."                          I agree completely - that is why  



                                                                                                    

the statute's consecutive six-month residency requirement focuses on statutorily defined  



                                                                               

residency and not on physical presence.  In effect, the court has come full circle back to  



          27       See former AS 43.23.008(a)(1) (2007) (providing allowable absence for  



full-time secondary and postsecondary education).  



          28       See former AS 43.23.008(a)(5) (2007) (providing allowable absence for  



"continuous medical treatment").  



          29       See,  e.g.,  former  AS  43.23.008(a)(2)  (2007)  (absence  for  vocational,  



professional, or certain other education); (a)(4) (absence for merchant marine service);  

                                                             

(a)(6)  (absence  for  providing  care  for  certain  critically  ill  family  members);  (a)(7)  

(absence for providing care for terminally ill family member); (a)(8) (absence for settling  

family member's estate); (a)(10) (absence while serving as a state employee).  I also  

wonder how the court's new interpretation that AS 43.23.008(b) requires a continuous  

180-day physical presence prior to departure would work for those seeking an allowable  

                                                                                        

absence for serving in Congress or as congressional staff despite traveling back and forth  

                                                      

between Washington, D.C. and Alaska. Cf. former AS 43.23.008(a)(9)-(10) (2007).  



          30       Op. at 10 n.20 (citing former AS 43.23.008(b) (2007)).  



                                                            -37-                                                      6849
  


----------------------- Page 38-----------------------

the  inescapable  conclusion  that  "resident"  in  AS  43.23.008(b)  means  "resident"  as  



                                                  

defined by AS 43.23.095(7) and AS 01.10.055, and does not mean "physically present."  



                                       

                    In my view AS 43.23.008(b) treats new residents - those who have been  



                                                    

Alaska residents for less than six months - differently from established residents; it is  



                                                                             

not a bona fide residency requirement.  Under the statutory framework instituted by the  



                                                                      

legislature  in  1998,  the  combination  of  AS  43.23.095(7)  and  AS  01.10.055  -  not  



                                                                                                

AS  43.23.008(b)  -  distinguishes  bona  fide  residents  from  passers-through.    Upon  



                                                                     

establishing a principal abode in the  state, displaying an intent to remain a resident  



                                                                     

indefinitely, and establishing customary ties to the state, a person becomes a bona fide  



resident and must be treated as other residents under AS 43.23.  But AS 43.23.008(b)  



                                                                    

provides that an allowable absence may not be claimed unless a person "was a resident  



                                                                                                                                  31  

                                    

of the state for at least six consecutive months immediately before leaving the state"; 



this is "not simply a waiting period after arrival in the State; it is a waiting period after  

                                                                                                 

                                       32   Consequently, AS 43.23.008(b) is a durational residency  

residence is established."                                          



requirement - not a bona fide residency requirement - regardless of its purpose.  



                    Under strict scrutiny review, the suspect provision must be necessary to  

                                                                                                    



further a compelling state interest.  Moreover, the suspect provision must be drawn with  

                                        



                                                                                                           33  

precision and must be narrowly tailored to serve legitimate objectives.                                        The objective  

                                                                                            



of AS 43.23.008(b) is to help ensure that only permanent, bona fide residents of Alaska  

                                                                                                 



          31        Former AS 43.23.008(b) (2007) (emphasis added).  



          32        Dunn  v.  Blumstein ,   405  U.S.   330,   350  n.20  (1972)   (emphasis  added)  



(defining a durational residency requirement).  



          33        Id. at 343 ("And if there are other, reasonable ways to achieve those goals  

                                                                

with a lesser burden on constitutionally protected activity, a State may not choose the  

way of greater interference.").  



                                                               -38-                                                         6849
  


----------------------- Page 39-----------------------

                                                                                   34  

receive PFDs - certainly a legitimate state interest.                                   But even if the interest were  



compelling, the statute's six-month residency requirement creates a classification crudely  



                 

excluding both nonresidents (or passers-through) and bona fide residents alike, and such  



                                                            35  

                                                                     

a "classification is all too imprecise."                         It would not be unduly burdensome for the  



                                                                                                                   

Department to determine on an individualized basis whether an applicant relying on an  



allowable  absence  provision  is  in  fact  a  bona  fide  resident;  the  Department  already  



requires the establishment of an abode and provides a list of other objective indicia of an  



                                                                                        

intent to remain indefinitely, including tax, school, voter registration, and motor vehicle  



                                36  

registration  records.                Because  it  creates  an  overbroad  classification  by  conclusive  



                       

presumption, rather than by the precision and tailoring required under law, I conclude  



that AS 43.23.008(b) violates the United States Constitution.  



          34         See Martinez v. Bynum              , 461 U.S. 321, 328 (1983) ("A bona fide residence  



requirement, appropriately defined and uniformly applied, furthers the substantial state     

interest  in  assuring   that  services  provided  for  its  residents  are  enjoyed  only  by  

residents.");  see  also  Dunn ,  405  U.S.  at  351  ("The  State's  legitimate  purpose  is  to  

determine whether certain persons in the community are bona fide residents.").  



          35        Dunn , 405 U.S. at 351.  



          36         See 15 AAC 23.173(g).  



                                                                -39-                                                              6849  

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