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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Schmidt (4/25/2014) sp-6898

State v. Schmidt (4/25/2014) sp-6898

         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  



STATE OF ALASKA and                                     )  

                                                      ,          Supreme Court No. S-14521  

MUNICIPALITY OF ANCHORAGE  )  

                                                        )  

                            Appellants,                 )        Superior Court No. 3AN-10-09519 CI  

                                                        )  

         v.                                             )        O P I N I O N  

                                                        )  

JULIE A. SCHMIDT, GAYLE                                 )        No. 6898 - April 25, 2014  

SCHUH, JULIE M. VOLLICK,                                )  

SUSAN L. BERNARD, FRED W.                               )  

TRABER, and LAURENCE                                    )  

                                          

SNIDER,                                                 )  

                                                        )
  

                            Appellees.                  )
  

                                                        )
  



                   Appeal from the Superior Court of the State of Alaska, Third  

                   Judicial District, Anchorage, Frank A. Pfiffner, Judge.  



                   Appearances: Kevin M. Saxby and Lance B. Nelson, Senior  

                                                                               

                   Assistant  Attorneys  General,  Anchorage,  and  Michael  C.  

                                 

                                                                                       

                   Geraghty, Attorney General, Juneau, for Appellant State of  

                   Alaska. Pamela D. Weiss, Assistant Municipal Attorney, and  

                                               

                   Dennis  A.  Wheeler,  Municipal  Attorney,  Anchorage,  for  

                   Appellant Municipality of Anchorage.  David Oesting and  

                                                                                      

                   Roger Leishman, Davis Wright Tremaine LLP, Anchorage,  

                   and Thomas Stenson and Leslie Cooper, ACLU of Alaska  

                   Foundation, Anchorage, for Appellees.  



                   Before: Fabe, Chief Justice, Winfree, Stowers, and Maassen,  

                                                                                     


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

                                                                            *  

                   Justices, and Eastaugh, Senior Justice.  [Carpeneti, Justice,  

                   not participating.]  

                                               



                   EASTAUGH, Senior Justice.
  

                   WINFREE, Justice, concurring.  
 



I.        INTRODUCTION  



                   The  State  of  Alaska  and  the  Municipality  of  Anchorage  exempt  from  

                                                                



municipal property taxation $150,000 of the assessed value of the residence of an owner  

                                                                                          



who  is  a  senior  citizen  or  disabled  veteran.    But  the  full  value  of  the  exemption  is  

                                    



potentially unavailable if a person who is not the owner's spouse also occupies  the  

                                                                                                           



residence.    Contending  that  the  exemption  program  violates  their  rights  to  equal  



protection and equal opportunities, three Anchorage same-sex couples in committed,  

                                



long-term, intimate relationships sued the State and the Municipality.  The superior court  



ruled for all three couples.  The State and Municipality appeal.  



                   As to two of the couples, we affirm.  Same-sex couples, who may not marry  



                                                                                                      

or have their marriages recognized in Alaska, cannot benefit or become eligible to benefit  



from the exemption program to the same extent as heterosexual couples, who are married  



                                                         

or may marry.  The exemption program therefore potentially treats same-sex couples less  



favorably than it treats opposite-sex couples even though the two classes are similarly  



                                                                                

situated.  The identified governmental interests do not satisfy even minimum scrutiny.  



The exemption program therefore violates the two couples' equal protection rights as  



guaranteed by article I, section 1 of the Alaska Constitution.  



                   As to the third couple, we reverse the ruling in their favor because we  



                                                                                                                

conclude that the program does not exempt a residence from taxation unless the senior  



          *        Sitting  by  assignment  made  under  article  IV,  section  11  of  the  Alaska  



Constitution and Alaska Administrative Rule 23(a).  



                                                            -2-                                                          6898  


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

citizen or veteran has some ownership interest in it.  If the senior citizen or veteran has   



no  actual  ownership  interest,  the  program  treats  a  same-sex  couple   the   same  as  a  



heterosexual couple by denying the exemption to both couples, rendering marital status       



and the ability to marry irrelevant. Because the senior citizen member of the third couple                                               



had no ownership interest in the residence, that couple had no viable equal protection   



claim.   



                        We also vacate and remand the award of attorney's fees.  



II.         FACTS AND PROCEEDINGS  



            A.          The Tax Exemption Program  



                        By statute, specified classes of Alaska municipalities may levy property  



           1  

taxes.   Also by statute, particular classes of property are exempt or partially exempt  

                                             2  The exemption pertinent here is for real property owned and  

from municipal taxation.  

                                                                                                                          



occupied as the primary residence by a municipal resident who is either (a) 65 years of  

                                                                                                                                    



                                                                     3  

age or older or (b) a disabled veteran.   The exemption's implementing regulations are  

entitled  "Senior  Citizen  and  Disabled  Veteran  Property  Tax  Exemption."4                                                                        For  



convenience,  we  will  sometimes  refer  to  the  exemption  as  the  "senior  citizen  and  



disabled veteran exemption" and to eligible applicants as "senior citizens" and "disabled  



veterans."    Likewise,  we  will  sometimes  refer  to  the  exemption  statute  and  the  



implementing regulations collectively as the "exemption program."  



                        The statute authorizing this exemption has existed since 1972, when the  



            1           AS 29.45.010.  



            2           E.g. , AS 29.45.030(a), (e), (j), (l).  



            3           AS 29.45.030(e).  



            4           The  tax  exemption's  implementing  regulations  are  set  out  in  Alaska  



Administrative Code (AAC) Title 3, Chapter 135 (2012).  



                                                                            -3-                                                                     6898
  


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

legislature adopted a property tax exemption for senior citizens.                           5  In 1984 the legislature  



                                                                     6  

extended  the  exemption  to  disabled  veterans.     The  subsection  providing  the  senior  



                                                                                                                             7  

                                                                                                                                

citizen and disabled veteran exemption was recodified as AS 29.45.030(e) in 1985. 



                    The pertinent parts  of the exemption statute partially exempt a home's  



assessed  value  from  municipal  property  taxation.    The  applicable  subsection  is  



AS 29.45.030(e).  It provides in relevant part:  



                    The  real  property  owned  and  occupied  as  the  primary  

                                                                                

                    residence and permanent place of abode by a resident who is  

                                                               

                    (1) 65 years of age or older; (2) a disabled veteran; or (3) at  

                                                                                            

                    least 60 years of age and the widow or widower of a person  

                    who  qualified  for  an  exemption  under  (1)  or  (2)  of  this  

                                                                                          

                    subsection is exempt from taxation on the first $150,000 of  

                                                                                             

                    the  assessed  value  of  the  real  property.  .  .  .  Only  one  

                                                                       

                    exemption may be granted for the same property, and, if two  

                                                                                               

                    or more persons are eligible for an exemption for the same  

                    property,   the   parties   shall   decide   between   or   among  

                    themselves who is to receive the benefit of the exemption.  

                    Real property may not be exempted under this subsection if  

                                                                                    

                    the  assessor  determines,  after  notice  and  hearing  to  the  

                    parties,  that  the  property  was  conveyed  to  the  applicant  

                    primarily for the purpose of obtaining the exemption.  



In  sum,  the  statute  exempts  $150,000  of  the  assessed  value  of  a  home  owned  and  



                                                                                                           8 

                                                                                                

occupied as the primary residence by a senior citizen (a person 65 or older)  or a disabled 



          5         Ch. 118,  2, SLA 1972; see also former AS 29.53.020(e) (1972).   



          6         Ch. 40,  1S4, SLA 1984; see also former AS 29.53.020(e) (1984).  



          7         Ch. 74,  12, SLA 1985.  



          8         3 AAC 135.120(8).  



                                                             -4-                                                        6898
  


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

            9 

veteran.   Alaska Statute 29.45.030(g) requires the State, if appropriations are sufficient,  



to reimburse municipalities for tax revenues lost by operation of the exemption statute.  



                                                                                                                    

                    The pertinent implementing regulation - 3 AAC 135.085 - provides in  



relevant part:  



                    (a) When an eligible person and his or her spouse occupy the  

                     same permanent place of abode, the reimbursement described  

                                 

                    in   AS   29.45.030(g)  applies,  regardless  of  whether  the  

                    property is held in the name of the husband, wife, or both.  



                     . . . .  



                                                                                                

                    (c) If property is occupied by a person other than the eligible  

                                                                           

                    applicant and his or her spouse, an exemption, to be eligible  

                                                                          

                    for reimbursement, applies only to the portion of the property  

                                                             

                    permanently occupied by the eligible applicant and his or her  

                                                              [10] 

                    spouse as a place of abode.  



                                                                                                             

Two  aspects of the regulation's subsections are significant here: (1) So  long  as  the  



                                    

eligible applicant and the applicant's spouse occupy the residence, reimbursement is  



                                                                                                                     

available regardless of which spouse holds title; and (2) if a person other than the eligible  



                                                         

applicant and the applicant's spouse occupies the residence, reimbursement is available  



                                                                                                     

only with respect to the portion occupied by the eligible applicant and his or her spouse.  



                    The regulation's text ostensibly only addresses the extent of the State's  



                                                                                                   

obligation to reimburse a municipality for lost tax revenues. But its title - "Eligibility"  



                

-  could be read to imply that it addresses exemption eligibility, and the parties have  



litigated this dispute as though the regulation defines exemption eligibility.  Moreover,  



                                                                                    

the Municipality seems to believe that it must interpret eligibility in accordance with the  



                                                                            

regulation.  No words in the statute or regulation explicitly deny an exemption for that  



          9         AS 29.45.030(i)(1) defines "disabled veteran."  



          10        3 AAC 135.085(a), (c).  



                                                                -5-                                                             6898  


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

                                                        

portion of the property occupied by a person other than the eligible applicant or the  



                                                                 

eligible applicant's spouse.  But the parties read the regulation to contain such a denial.  



They therefore interpret the program as denying the exemption for that portion of the  



                                  

property  occupied  by  a  person  other  than  the  spouse  of  an  eligible  applicant.    For  



purposes of this appeal, we assume their interpretation is correct.  



                                                                      

                    As a result of this interpretation, if the assessed value of the residence is less  



than $300,000 and the ineligible partner occupies half the property, the full value of the  

exemption will not be granted to the unmarried couple.11  



                    The  exemption  program  applies  to  residences  owned  and  occupied  by  



                                                                                                                   12  

                                                                                                                         The  

senior   citizens   or   disabled   veterans   in   the   Municipality   of  Anchorage. 



                                                                                                                      

Municipality administers the exemption program in accordance with the statute and the  



regulations.  



          B.        The Plaintiff Couples  



                                                                

                    Six plaintiffs who comprised three same-sex couples brought this lawsuit,  



                           

alleging  that  the  members  of  each  couple  "live  together  in  long-term,  committed,  



interdependent,  intimate  relationships  ('domestic  partners'),  with  the  intention  of  



                                                            13  

remaining in such relationships for life."                      All resided in Anchorage.  



          11        If the assessed value is $300,000 or more, the full value of the $150,000  



exemption  applies  regardless  of  the  couple's  marital  status  -  even  if  the  ineligible  

                                                        

partner occupies half of the property.  Co-occupancy does not limit the full value of the  

                                     

exemption in that situation.  



          12        Anchorage Municipal Code (AMC) 12.15.015(D)(1)S(2) (2012).  



          13  

                                                                                                             

                    One couple married in Canada in 2007; another married in California in  

                                                                                 

2008.  The Municipality has not disputed the nature of the couples' relationships or the  

facts surrounding their exemption applications, and the State conceded that all three  

couples are in committed, same-sex relationships.  

                                                                                                           (continued...)  



                                                             -6-                                                        6898
  


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

                   The  first  couple  -  Julie  Schmidt  and  Gayle  Schuh  -  co-owned  their  



                                                            

Anchorage home as tenants in common. Each had a 50% ownership interest in the home.  



In 2010, the year they filed suit, their home's assessed value was $254,200.  Schmidt was  



                                                                                           

then 67 years old and Schuh was 62.  Because Schmidt was 65 or older, she was eligible  



to apply for the tax exemption.  Because Schuh was under 65, she was not eligible to  



apply.  Schmidt had applied for the exemption in 2008.  The application form required  



Schmidt to list the percentage of the home that she owned and the percentage that she  



                                                           

occupied.  She indicated that she owned and occupied 50% of the property.  An affidavit  



                                                    

prepared by State Assessor Steve Van Sant discussing the effect of marriage on the  



                                                           

senior citizen exemption for 2010 stated that because Schmidt had only a 50% ownership  



interest in the home, only 50% of the home's assessed value was exempt.  Van Sant  



                                                                                                              

calculated that if Schmidt and Schuh had been married, their property tax in 2010 would  



have been "roughly $359.31 less."  In effect, because Schuh and Schmidt were not  

married, they could not achieve the tax exemption's maximum benefit.14  



                                                                                        

                   The second couple - Julie Vollick and Susan Bernard - co-owned their  



                                                                                                             

Anchorage  home  as  tenants  in  common  from  2004  until  2010.                                  Each  had  a  50%  



ownership interest in the home.  In 2010 their home's assessed value was $232,600.  



                                                                                                      

Vollick had served in the United States Air Force for 20 years and was injured in the line  



          13        (...continued)  



                   We use "same-sex couple" or "same-sex domestic couple" to mean two  

                                                                 

people of the same biological sex who are in a long-term, committed, intimate  domestic  

                                                              

partnership, and who would marry if they could.  The three couples in this case met this  

                                                              

definition.  See Alaska Civil Liberties Union v. State , 122 P.3d 781, 784 n.5 (Alaska  

2005);  see  also  AS  39.50.200(a)(4)  ("  '[D]omestic  partner'  means  a  person  who  is  

cohabiting with another person in a relationship that is like a marriage but that is not a  

                                                                                                        

legal marriage . . . .").   



          14       See AS 29.45.030(e); see also 3 AAC 135.085(a), (c).    



                                                             -7-                                                       6898
  


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

of duty.  She qualified as a "disabled veteran" under AS 29.45.030(i)(1), making her  

                                                                                        



eligible for the tax exemption.  Bernard did not qualify as a disabled veteran or senior  

                              



citizen.  Vollick applied for the disabled veteran exemption in 2008.  Her application  

                                                                                                          



indicated that she owned and occupied 50% of the property.  State Assessor Van Sant  

                                                                                                                    



stated  in  his  affidavit  that  Vollick's  50%  ownership  limited  the  disabled  veteran  



exemption available for the home.  He explained that if Vollick and Bernard had been  



married, they could have obtained a disabled veteran exemption based on 100% of the  



                                                                                                         

assessed value, and they would have owed "roughly $528.76 less" in property taxes in  

2010.15  



                    The third couple - Fred Traber and Laurence Snider - did not formally  

                                                           



co-own their Anchorage home; according to their complaint, the home was "held in  

                                                  



Traber's  name."    The  complaint  also  alleged  that  "both  partners  view  the  home  as  

                                                                                                               



belonging to both of them."  In 2010 the home's assessed value exceeded $150,000.  In  

                                                                         



2010 Snider was 69 years old, but although he was a senior citizen, the State contended  

                                                                                                     



that he could not then apply for the exemption because he did not own the condominium.  

                          



Traber was then 62 and therefore did not qualify as a senior citizen.  The record does not  

                                                                                                     

reflect whether Traber or Snider ever applied for the senior citizen exemption.16  



          C.        The Lawsuit  



                    The couples sued the State of Alaska and the Municipality of Anchorage,  

                                        



alleging  that  the  tax  exemption  program  is  unconstitutional.    They  claimed  that  the  

                                                                



program discriminates against them based on sexual orientation because they are barred  

                                                                               



from marrying or having their marriages recognized in Alaska.  



          15        Vollick  and  Bernard  separated  in  2011,  but  no  party  argues  that  their  



separation moots their claims.  



          16        No  party  argues  that   the  absence  of   an  exemption   application   for  that  



residence is significant.  



                                                              -8-                                                            6898  


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

                   The couples requested a judgment declaring that the tax exemption program  



violates the Alaska equal protection clause; they also requested an injunction requiring  



the State and Municipality to apply the exemption program on terms identical to those  

                                                                                            



that would apply if the couples were in recognized marriages.  



                                                                                                            

                   The State argued that the superior court should not reach the merits of the  



couples'  equal  protection  claim  because:    (1)  the  Alaska  Constitution's  Marriage  



                                                                                 

Amendment, article I, section 25, precludes the claim; (2) the couples are not situated  



                                                 

similarly  with  married  couples;  and  (3)  the  tax  exemption  program  is  not  facially  



discriminatory.  The Municipality argued that because state law dictates the terms of the  



                                                                        

exemption, the State was in the best position to address the couples' arguments.  The  



Municipality did not otherwise address the merits of the couples' claims.  



                   Superior Court Judge Frank A. Pfiffner granted summary judgment for all  



                                                                                                  

six  plaintiffs.    Applying  minimum  scrutiny,  the  court  held  that  the  tax  exemption  



                                                                                                                    

program violated the Alaska Constitution's equal protection clause.  The court did not  



reach  the  couples'  alternative  arguments  regarding  heightened  scrutiny.    The  court  



declared that the program violated article I, section 1 of the Alaska Constitution "by  



imposing  a  spousal  limitation  that  facially  discriminates  against  same-sex  domestic  



                     

partners."       It permanently enjoined the State and Municipality from administering the  



program in a manner that treated same-sex domestic partners differently from married,  



                                                                                                                       

opposite-sex couples.  And it awarded the couples 100% of their attorney's fees.  The  



                                                                         

State and Municipality appeal.  The State's appeal primarily focuses on the merits of the  



summary judgment; the Municipality's appeal exclusively challenges the attorney's fees  



award.  



                                                             -9-                                                      6898
  


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

III.      STANDARD OF REVIEW  



                                                                                                                     17  

                                                                                                                         Courts  

                     "We review a grant or denial of summary judgment de novo." 



                                                                          

grant summary judgment when no genuine issue of material fact remains and the moving  



                                                                        18  

party is entitled to judgment as a matter of law.                            



                     "Whether  two  entities  are  similarly  situated  is  generally  a  question  of  

                                                                                            



         19                                     20 

fact,"      reviewed for clear error.               Identifying the applicable level of scrutiny in an equal  



                                                             21  

protection  case  is  a  question  of  law.      "Likewise,  identifying  the  nature  of  the  



                                                                                  

challenger's interest and assessing the importance of the governmental interest and the  



                                                                                                                                  22  

                                                                                                                       

fit between that interest and the means chosen to advance it, present questions of law." 



We apply our independent judgment to questions of law, and we adopt the rule of law  



          17        Alaska Civil Liberties Union v. State , 122 P.3d 781, 785 (Alaska 2005)                   



(citing  City  of  Kodiak  v.  Samaniego,  83  P.3d  1077,  1082  (Alaska  2004); Powell  v.  

Tanner,  59  P.3d  246,  248  (Alaska  2002))  (reviewing  de  novo  grant  and  denial  of  

                                                                                                      

summary judgment).  



          18        Mitchell v. Teck Cominco Alaska Inc. , 193 P.3d 751, 757 (Alaska 2008)  



(citing Miller v. Safeway, Inc. , 170 P.3d 655, 658 (Alaska 2007)) (discussing standard  

                                                                       

for grant of summary judgment).  



          19  

                                 

                    Alaska  Inter-Tribal Council v. State , 110 P.3d 947, 967 (Alaska 2005)  

(citing Harlen Assocs. v. Inc. Vill. of Mineola , 273 F.3d 494, 499 n.2 (2d Cir. 2001))  

(reviewing for clear error finding that two classes were not similarly situated).  



          20        See id. at 956 (citing  Vezey v. Green, 35 P.3d 14, 19-20 (Alaska 2001)).  



          21        Alaska Civil Liberties Union , 122 P.3d at 785 (citing Reichmann v. State,  



                                                                        

Dep't of Natural Res. , 917 P.2d 1197, 1200 & n.6 (Alaska 1996); Sonneman v. Knight,  

790 P.2d 702, 704 (Alaska 1990)) (determining de novo the applicable level of scrutiny).   



          22        Id .  (citing Sonneman,  790  P.2d  at  704-06)  (conducting  de  novo  equal  



protection analysis).  



                                                               -10-                                                         6898
  


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

"most persuasive in light of precedent, reason, and policy."23  "We apply our independent  

                                                          

judgment when interpreting constitutional provisions or statutes." 24 "A constitutional  

                                            

challenge to a statute must overcome a presumption of constitutionality."25  

                                                                                                                 



                    "Whether there are sufficient findings for informed appellate review is a  

                                    



                          26                                                                                                  27 

question of law."              We apply our independent judgment to resolve questions of law,  

                                               



and therefore exercise our independent judgment in considering whether a court has  



provided sufficient factual findings or legal explanation to permit meaningful appellate  

                                                      



review.   We apply that standard in deciding whether sufficient factual findings or legal  

                                    



explanations support the superior court's attorney's fees award.  "We review the alleged  

                                                                                                



inadequacy of a trial court's fact findings to determine whether they give [us] a clear  



                                                                                                  

indication of the factors considered important by the trial court or allow us to determine  



                                                                              28  

                                                                                   We also apply the independent  

from the record what considerations were involved."                                       



          23        State v. Anthony, 810 P.2d 155, 156                S57 (Alaska 1991) (quoting Guin v. Ha                   ,  



591  P.2d  1281,  1284  n.6  (Alaska  1979))  (internal  quotation  marks  omitted)  (citing  

Sonneman, 790 P.2d at 704) (describing independent judgment standard) reh'g granted,  

                   

816 P.2d 1377 (Alaska 1991).  



          24        Alaska Civil Liberties Union , 122 P.3d at 785 (citing Alaska Trademark  



Shellfish, LLC v. State, 91 P.3d 953, 956 (Alaska 2004); State, Commercial Fisheries  

                                                               

Entry  Comm'n  v.  Carlson ,  65  P.3d  851,  858  (Alaska  2003))  (applying  independent  

judgment to constitutional and statutory questions).  



          25        Id. at 785 (citing Brandon v. Corr. Corp. of Am., 28 P.3d 269, 275 (Alaska  



2001)); see also Alaskans for a Common Language, Inc. v. Kritz , 170 P.3d 183, 192  

                          

(Alaska 2007) (discussing the presumption of constitutionality).  



          26        Hooper v. Hooper , 188 P.3d 681, 692 (Alaska 2008).  



          27        Id . at 685.  



          28        Borchgrevink v. Borchgrevink , 941 P.2d 132, 137 (Alaska 1997) (as quoted  



in Hooper , 188 P.3d at 692).  



                                                             -11-                                                        6898
  


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

                                                                                                       

judgment  standard  of  review  in  considering  whether  the  trial  court  applied  the  law  



                                                                                             29  

correctly  in  awarding  attorney's  fees  under  AS  09.60.010(c).                                We  "exercise  our  



independent judgment in reviewing whether a trial court has applied the appropriate legal  

standard in making its prevailing party determination."30  



                                                                                                        

                    When a judgment is reversed in part and affirmed in part, we exercise our  



independent judgment in deciding whether any part of an attorney's fees award must be  



                                                      31  

vacated and reconsidered on remand.                       



IV.       DISCUSSION  



               

          A.        The Marriage Amendment Does Not Bar The Couples' Claims.  



                                                                                         

                    We must first address the State's argument that the Marriage Amendment  



altogether forecloses these couples' equal protection claims.  



                                                       

                   Article  I,  section  1  of  the  Alaska  Constitution  provides  in  part:  "This  



constitution is dedicated to the principles that . . . all persons are equal and entitled to  



                                                                                           32  

equal rights, opportunities, and protection under the law . . . ."                             This passage is often  



          29       State v. Jacob, 214 P.3d 353, 358 (Alaska 2009).  



          30       Id.   



          31  

                                   

                    Cf. Kenai Peninsula Borough v. Port Graham Corp., 871 P.2d 1135, 1142  

(Alaska 1994) (vacating and remanding attorney's fees award for recalculation after  

reversing in part and affirming in part the superior court judgment, despite our agreement  

with the superior court's legal conclusions concerning the nature and scope of the award  

                                                                                                    

authorized by the applicable statute).  



          32       Article I, section 1 states in full:  



                                                                                            

                    This constitution is dedicated to the principles that all persons  

                   have a natural right to life, liberty, the pursuit of happiness,  

                    and the enjoyment of the rewards of their own industry; that  

                    all   persons       are     equal     and     entitled      to    equal      rights,  

                    opportunities,  and  protection  under  the  law;  and  that  all  

                                                                                                          (continued...)  



                                                            -12-                                                      6898
  


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

                                                         33  

referred to as the equal protection clause.                   



                   In 1998 Alaska voters amended the Alaska Constitution by adopting the  



                                                                                                           34  

                                                                                                               Its full  

Marriage Amendment, which became article I, section 25 of the constitution. 



text  provides:  "To  be  valid  or  recognized  in  this  State,  a  marriage  may  exist  only  



                                                  35  

                                                      The Marriage Amendment effectively precludes  

between one man and one woman." 



same-sex  couples  from  marrying  in  Alaska  or  having  their  out-of-state  marriages  



recognized in Alaska.   



                   Constitutional provisions that potentially conflict must be harmonized if  



            36  

                                                                            

possible.       We have recognized that "[t]he state equal protection clause cannot override  



                                                                             37  

                                                                                                              

more  specific  provisions  in  the  Alaska  Constitution."                     The  State  contends  that  the  



                                                    

Marriage Amendment precludes the couples' equal protection claims because it permits  



the  State  to  treat  married  couples  differently  from  unmarried  couples,  and  because  



Alaska's equal protection clause cannot "override" the Marriage Amendment's "more  



         32        (...continued)  



                  persons have corresponding  obligations to                  the people and to  

                   the State.  



         33        See, e.g., Alaska  Civil Liberties U          nion v. State, 122 P.3d 781, 785 (Alaska  



2005).  



         34        S.J. Res. 42, 20th Leg., 2d Sess. (Alaska 1998).  



         35        Alaska Const. art. I,  25.  



         36       Alaska Civil Liberties Union , 122 P.3d at 786 (quoting CHESTER  JAMES  



ANTIEAU ,   CONSTITUTIONAL  CONSTRUCTION      2.15, at 27 (1982)) (citing  Owsichek v.  

State,  Guide  Licensing  &  Control  Bd.,  763  P.2d  488,  496  (Alaska  1988);  State  v.  

Ostrosky,  667 P.2d 1184, 1191 (Alaska 1983); Park v. State , 528 P.2d 785, 786-87  

                

(Alaska 1974); A 

                        NTIEAU ,  supra ,  2.06, at 18-20).  



         37       Id . at 787 (citing Bess v. Ulmer , 985 P.2d 979, 988 n.57 (Alaska 1999);  



ANTIEAU , supra note 36,  2.16, at 27-28).  



                                                         -13-                                                    6898
  


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

specific provision."  



                   Before turning to the Marriage Amendment, we briefly address the State's  



invocation of AS 25.05.013(b), which provides that "[a] same-sex relationship may not  



                                                                                                    38  

                                                                                                        The State does  

be recognized by the state as being entitled to the benefits of marriage." 



not argue that AS 25.05.013(b) controls the outcome of this case.  It instead asserts that  



the statute "strongly supports the idea that, as a matter of law, married couples are not  



                                                            

similarly situated to unmarried couples, including those of the same sex."  The State  



                                                                                                         

notes that AS 25.05.013(b) was not invalidated by Alaska Civil Liberties Union v. State  

("ACLU ")39 and is therefore presumptively constitutional.40  



                   Even  assuming,  as  the  State  argues,  that  the  statute  demonstrates  that  



                                                  

married couples are not situated  similarly to unmarried couples, the statute draws a  



          38       AS 25.05.013, entitled "Same-sex marriages," states in full:  



                             (a) A marriage entered into by persons of the  

                             same sex, either under common law or under  

                                                                

                             statute, that is recognized by another state or  

                             foreign  jurisdiction  is  void  in  this  state,  and  

                             contractual  rights  granted  by  virtue  of  the  

                             marriage,        including        its    termination,         are  

                             unenforceable in this state.  



                             (b)   A     same-sex   relationship   may   not   be  

                                        

                             recognized by the state as being entitled to the  

                             benefits of marriage.  



          39        122 P.3d at 781-95.  



          40  

                                                                                        

                   The couples do not argue that AS 25.05.013(b) is unconstitutional, and the  

superior court did not consider its constitutionality.  The plaintiffs in Brause v. State,  

Dep't  of  Health  &  Soc.  Servs .,  21  P.3d  357,  360  (Alaska  2001),  challenged  its  

                               

constitutionality, but because we held that their claim was not ripe for adjudication, we  

                                                 

did not consider the statute's constitutionality.  Id .   Its constitutionality was not raised  

                         

in ACLU .  



                                                           -14-                                                      6898
  


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

                  

distinction  that  is  legally  irrelevant  to  deciding  whether  the  Marriage  Amendment  



precludes  the  couples'  equal  protection  claims.    As  we  will  see,  that  issue  turns  on  



                                                                                

whether the Marriage Amendment is more specific than the equal protection clause, and  



                                                                 

does not turn on whether married couples and unmarried couples are differently situated.  



                                         

And even as to the merits of the equal protection claim, the State's asserted distinction  



                                                                                                            

is irrelevant, because the correct classes for comparison are same-sex couples who wish  



                                                                                                                   

to  marry  and  opposite-sex  couples  who  wish  to  marry,  not  married  couples  and  



unmarried couples.  



                                                                                                                    

                     The State implies that the comments of the sponsor of the bill that resulted  



in AS 25.05.013(b) are germane to the meaning of the Marriage Amendment.  We are  



                                                  

unconvinced that the history of the 1996 statute has any bearing on the meaning of the  



                                                                                                 

1998 amendment to the constitution, especially considering the brevity and limited scope  



                                                                                                        

of  the  Marriage  Amendment's  text.                       Although  AS  25.05.013(b)  expressly  prohibits  



                                                                                                                            

same-sex couples from being entitled to the benefits of marriage, the legislature did not  



include a prohibition on benefits in the text of the resolution proposing the Marriage  



                    41  

Amendment.              The State has directed us to no legislative history suggesting that the  



                                                                                                         

words of the Marriage Amendment should be interpreted as denying benefits to same-sex  



             42  

                                                  

couples.         Moreover, the ballot measure that submitted the proposed amendment to the  



          41         AS 25.05.013 was enacted in 1996.  Ch. 21,  2, SLA 1996. The legislature                   



in 1998 adopted the resolution that proposed the Marriage Amendment. Voters approved   

the Marriage Amendment in 1998.  S.J. Res. 42, 20th Leg., 2d Sess. (Alaska 1998).  



          42         As we observed in ACLU , a state constitutional amendment that expressly  



                                                                                                            

denied benefits to same-sex couples would arguably offend the federal Constitution.  122  

P.3d  at  786  n.20  (citing  Romer  v.  Evans,  517  U.S.  620  (1996)  (holding  that  an  

amendment  to  the  Colorado  Constitution  that  repealed  all  local  and  statewide  laws  

prohibiting  sexual-orientation  discrimination  violated  the  federal  equal  protection  

clause)).  



                                                                -15-                                                          6898
  


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

                                                                                    43  

voters said nothing about denying or limiting benefits.      It did not refer to, quote, or  



paraphrase AS 25.05.013(b).  



                                                                                                            

                    We now return to the effect of the Marriage Amendment here.  In ACLU ,  



                                                                                                       44  

same-sex partners challenged a public-employee benefits program.                                           An employee's  



                   

spouse was eligible to receive benefits under the program, but an employee's same-sex  



                                           45  

                                                                                  

domestic  partner  was  not.                     We  ultimately  held  that  the  program  violated  the  



                                                       46  

challengers' equal protection rights.     But before reaching the merits of the couples'  



                                                                                                        

claims in that case, we first rejected the Municipality of Anchorage's contention that the  

                                                                                                             47  Our holding  

                                                                                                                   

Marriage Amendment precluded the challengers' equal protection claims. 



rejecting that contention would seem to dispose of the State's contention here that the  



Marriage Amendment precludes the couples' equal protection claims.  



                                                                                                    

                    But  in  contending  that  the  Marriage  Amendment  precludes  the  equal  



protection claims of same-sex couples, the State attempts to distinguish ACLU  in two  



                                                                                                                       

ways.  First, it argues that ACLU  was limited to employment benefits.  Second, it argues  



that  ACLU   involved  the  right,  recognized  in  article  I,  section  1  of  the  Alaska  



                                     

Constitution, to obtain the rewards of one's own industry, whereas here "there is no  



corresponding constitutional guaranty of a right to tax exemptions."  



          43        The published statement supporting adoption of the ballot measure instead       



stated  that  the  measure  "does   not   'target'  anybody  or  'deny'  anybody  their  rights."  

Loren Leman, Statement in Support , in ALASKA   1998   OFFICIAL ELECTION  PAMPHLET - 

BALLOT MEASURE 2 (1998), available at http://www.elections.alaska.gov/pub_oep.php.  



          44        Alaska Civil Liberties Union , 122 P.3d at 783.  



          45        Id .  



          46        Id. at 795.  



          47        Id .  at  785S87.    The  State  did  not   argue  in  ACLU   that  the  Marriage  



Amendment foreclosed the ACLU plaintiffs' equal protection claims.  



                                                              -16-                                                         6898
  


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

                   These two arguments fail to explain why ACLU 's holding regarding the  



Marriage  Amendment  does  not  dispose  of  the  State's  contention  that  the  Marriage  



                   

Amendment controls here.  ACLU  involved claims based on the denial of benefits to  

                          48 and those claims indeed implicated rights potentially protected by  

public employees,                           

                      49   But those circumstances had no bearing on our holding in ACLU  that  

the constitution.                

                            



the Marriage Amendment did not preclude the plaintiffs' equal protection claims. The  



                               

core issue regarding the effect of the Marriage Amendment was whether it conflicted  



                       

with the equal protection clause, and if so, whether it controlled as the more specific  



              50  

                  As to that core issue, we concluded that the two constitutional provisions  

provision.                                                                  



did not conflict, and that the Marriage Amendment did not preclude the plaintiffs' equal  

                         51   That conclusion did not turn on the circumstance that the plaintiffs'  

protection claims.                                                                                      



claims implicated a specific right to receive the rewards of one's industry (a right we did  

                                                                                                         52    Instead,  

                                                                                                             

not even discuss in holding that the Marriage Amendment did not control). 



we reached that conclusion because the Marriage Amendment did not explicitly permit  

                                                    



the public employers to engage in practices that potentially violated the equal protection  



          53  

clause.       Because the Marriage Amendment did not address the benefits there at issue,  



         48        Id . at 786, 794.  



         49        Id . at 794 & n.60 (describing Alaska Constitution article I, section 1 and  



article XII, section 6 as guaranteeing "all Alaskans 'the rewards of their own industry' "  

and requiring merit public employment).  



         50        Id . at 786-87.   



         51        Id .  



         52        Id .  at  785-87.     We  instead  discussed  that  right  when  we  reached  the  



conclusion of our equal protection analysis.  Id . at 794 & n.60.  



         53        Id . at 786-87.  



                                                          -17-                                                    6898
  


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

we held that it did not foreclose the plaintiffs' equal protection claims.  That holding was  



                                                                                    

not limited to equal protection claims of public employees, even though that happened  



to be the context in which the dispute arose.  



                   We conclude that what we said and held in ACLU  regarding the Marriage  



Amendment controls here:  



                   The  Marriage  Amendment  effectively  precludes  same-sex  

                                                                           

                   couples from marrying in Alaska, but it does not explicitly or  

                   implicitly prohibit public employers from offering to their  

                   employees' same-sex domestic partners all benefits that they  

                   offer to their employees' spouses.  It does not address the  

                   topic of employment benefits at all.  



                            Nor have we been referred to any legislative history  

                   implying       that,    despite     its   clear     words,      the    Marriage  

                   Amendment  should  be  interpreted  to  deny  employment  

                   benefits   to   public   employees   with   same-sex   domestic  

                   partners.  The Marriage Amendment could have the effect of  

                                                                                            

                   foreclosing the present challenge only if it could be read to  

                                                                                

                   prohibit  public  employers  from  offering  benefits  to  their  

                   employees' same-sex domestic partners.  But nothing in its  

                                                                    [54] 

                   text would permit that reading . . . .  



                                                                                                  

Similarly, the Marriage Amendment does not explicitly or implicitly prohibit the State  



                                                                                                          

from offering the same property tax exemption to an eligible applicant who has a same- 



sex domestic partner that the State offers to an eligible applicant who has a spouse.  Nor  



             

does the Marriage Amendment explicitly or implicitly permit the State to deny benefits  



                                                            

to same-sex couples who demonstrate that they are similarly situated to married couples  



who receive those benefits.  



                                                                                                                55  

                                                                                                                    The  

                   The couples' arguments here are like those of the ACLU  plaintiffs. 



         54       Id. at 786 (footnotes omitted).  



         55        See id. at 787.  



                                                          -18-                                                    6898  


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

couples  here  do  not  argue  that  the  Marriage  Amendment  violates  Alaska's  equal  



protection  clause  or  that  they  have  the  right  to  marry.    As  Judge  Pfiffner  correctly  



reasoned in quoting from ACLU , "the Marriage Amendment speaks only to the definition  



                                                                 56  

of marriage," not to the benefits of marriage.                       The superior court also correctly relied  



                                                                              

on ACLU 's recognition that even though the Marriage Amendment "effectively prevents  



                                                                

same-sex couples from marrying," it "does not automatically permit the government to  



                                                      57  

treat them differently in other ways."                    



                   The Marriage Amendment does not bar the couples' equal protection claims  

here.58  



                   B.	       The Tax Exemption Program Facially Discriminates Between  

                                                                             

                             Same-Sex Couples And Opposite-Sex Couples.  



                   A plaintiff alleging an equal protection violation  must show either that  

                                                                                              

facially neutral state action has a discriminatory purpose59 or that the state action is  



                                  60  

                                      When a "law by its own terms classifies persons for different  

facially discriminatory.                                           



          56	      Id. at 786-87 (superior court's emphasis).  



          57	      Id .  



          58       The State does not expressly challenge the couples' standing to sue, but  



asserts that the terms "widow" and "widower" found in AS 29.45.030(e) are not relevant  

                  

here.  If that assertion were meant to imply an objection to the couples' standing, it  

would ignore the words of the pertinent regulation.  It is undisputed that none of the  

plaintiffs here is, or can become,  a "spouse," "husband," or "wife" of his or her partner.  

                                                                                                 

See 3 AAC 135.085(a), (c).  



          59  

                                                                                                    

                   See Alaska Inter-Tribal Council v. State, 110 P.3d 947, 956 (Alaska 2005)  

                                                                  

(quoting Pers. Adm'r of Mass. v. Feeney , 442 U.S. 256, 273-74 (1979); Vill. of Arlington  

Heights v. Metro. Hous. Dev. Corp. , 429 U.S. 252, 264-65 (1977); Washington v. Davis,  

426 U.S. 229, 239-42 (1976)).  



          60       Alaska Civil Liberties Union , 122 P.3d at 788.  



                                                            -19-	                                                     6898
  


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

treatment," the law is facially discriminatory.61  



                                                                                                           

                  The   words   of   the   tax   exemption   statute   and   regulations   create   a  



                                                                                         62  

classification between married couples and unmarried couples.     Because same-sex  

partners cannot become a married couple,63 the exemption program's classification grants  



                                                

benefits to a class of persons who have the legal status of husband, wife, or spouse that  



it denies to the class of persons who cannot achieve that status.  Reading the Marriage  

Amendment together with the exemption statute and related regulation,64 two conclusions  



are unavoidable: (1) Same-sex couples cannot marry or have their marriages recognized  

in Alaska,65 and (2) because they cannot marry, same-sex couples cannot obtain the  



                                                                                              66  

benefits of the tax exemption to the same extent as married couples.                              



                                                                                            

                  Judge Pfiffner correctly observed that "[i]n Alaska, a marital classification  



facially discriminates based on an individual's sexual orientation."  He reasoned with  



                                                                                

regard to this case that because the exemption program expressly refers to "widow,"  



                                                                                                  

"widower," "spouse," "husband," and "wife," it facially discriminates based on sexual  



orientation.    Judge  Pfiffner's  reasoning  tracks  our  analysis  in  ACLU ,  where  we  



explained:  



         61       Id. (quoting JOHN E.  NOWAK & RONALD D.  ROTUNDA ,   CONSTITUTIONAL  



LAW   14.4, at 711 (7th ed. 2004)).  



         62       See  AS  29.45.030(e)  (benefitting  a  "widow"  or  "widower");  see  also  



3 AAC 135.085(a), (c) (benefitting a "spouse," "husband," or "wife").  



         63       Alaska Const. art. I,  25.  



         64       We   read  related  provisions  together,  not  in  isolation.    See  Underwater  



Constr., Inc. v. Shirley, 884 P.2d 150, 155 (Alaska 1994).  



         65       Alaska Const. art. I,  25.  



         66       See AS 29.45.030(e); see also 3 AAC 135.085.  



                                                         -20-                                                   6898
  


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

                        By restricting the availability of benefits to "spouses," the  

                        benefits programs "by [their] own terms classif [y]" same-sex  

                        couples "for different treatment."  Heterosexual couples in  

                                                                          

                        legal relationships have the opportunity to marry and become  

                        eligible  for  benefits.    In  comparison,  because  of  the  legal  

                        definition   of   "marriage,"   the   partner   of   a   homosexual  

                        employee can never be legally considered as that employee's  

                                                              

                        "spouse" and, hence, can never become eligible for benefits.  

                        We therefore conclude that the benefits programs are facially  

                                                                   

                                                    [67] 

                        discriminatory.  



                        The State argues that the difference in treatment is based not on marital  



                                                                                                                         

status, but on long-standing distinctions between types of property interests (tenancy in  



                                                                                                                    

common rather than tenancy by the entirety); it also argues that the exemption laws are  



                                                                                                                                               

"facially neutral."   Additionally, the State asserts (somewhat inconsistently) that the  



                                                                                                                   

exemption program permissibly distinguishes between married and unmarried couples.  



                        The State's contentions are problematic for two reasons.  



                                                                                                                                                     

                        First, as the exemption program pertains to this lawsuit, marital status is the  



                                                                                                            

only distinction the exemption statute and regulation draw; they contain no distinction,  



explicit or implicit, based on differences in property interests.  In fact, by extending the  



exemption to married couples regardless of whether the residence "is held in the name  

of  the  husband,  wife,  or  both,"68  the  regulation  makes  the  type  of  property  interest  



irrelevant.  



                        Second, even if the exemption's full value were conferred only on couples  



            67          Alaska Civil Liberties Union v. State , 122 P.3d 781, 789 (Alaska 2005)                                    



(alterations in original) (footnotes omitted).                                   In ACLU , we recognized that the benefits   

programs became discriminatory only after the adoption of the Marriage Amendment in                   

 1998.  Id . at 789 n.38.  But we explained that "allowing a discriminatory classification     

to remain in force is no different than giving it the force of law in the first place."                                                                Id.  

The same analysis applies here.  



            68          3 AAC 135.085(a).  



                                                                           -21-                                                                     6898
  


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

                                                                                                  

with a type of property interest - tenancy by the entirety - that is exclusively available  



to married couples, the program would facially discriminate against same-sex couples  



                                                                  69  

who could never acquire that type of interest.                        Because one type of property interest is  



categorically unavailable to a class of persons, distinctions based on that type of property  



ownership would create a facial classification.  



                    We      therefore       conclude        that    the     tax    exemption         program         facially  



discriminates between same-sex couples and opposite-sex couples.  



          C.	       Committed Same-Sex Couples Who Want To Marry Are Similarly  

                    Situated to Opposite-Sex Couples Who Want To Marry.  



                                                                                                                       

                    Plaintiffs who assert equal protection violations "must demonstrate that the  



          69        Per AS 34.15.110(b), married couples in Alaska who acquire real property           



co-own the property as tenants by the entirety unless the conveyance or devise specifies  

otherwise or unless they create a community trust under AS 35.77.100.  Tenancy by the  

                                                  

entirety  is  "[a]  common-law  estate  in  which  each  spouse  [owns]  the  whole  of  the  

property.  An estate by the entirety is based on the legal fiction that a husband and wife  

                                                                                              

are a single unit."  BLACK 'S LAW DICTIONARY 627 (9th ed. 2009); see Faulk v. Estate  

of Haskins, 714 P.2d 354, 356 (Alaska 1986) (holding that husband and wife's failure  

                                                                                                             

to recite marital status in the deed did not defeat tenancy by the entirety); see also Smith  

                                                         

v. Kofstad , 206 P.3d 441, 445 (Alaska 2009) (discussing survivorship for tenants by the  

                                                                   

entirety).  Per AS 34.15.140(c), a spouse who owns real property may convey it to "self  

                                                                             

and the other spouse" as tenants by the entirety or as tenants in common.  



                    In contrast, unmarried persons (including domestic partners) in Alaska who  

acquire  real  property  together  hold  it  as  tenants  in  common.    By  law,  they  cannot  

                                                           

establish a tenancy by the entirety.  AS 34.15.130 (abolishing joint tenancies except  

interests in personalty and tenancy by the entirety); see also AS 34.15.110(a).  Tenancy  

                                                                                                                    

in common is "[a] tenancy by two or more persons, in equal or unequal undivided shares,  

                                                                                        

each  person  having  an  equal  right  to  possess  the  whole  property  but  no  right  of  

                                                                                                               

survivorship."  BLACK 'S LAW DICTIONARY 1604 (9th ed. 2009); see Voss v. Brooks, 907  

P.2d 465, 468 n.2 (Alaska 1995) (noting that unmarried couples could not hold property  

                                                                               

as tenants by the entirety).  "Tenants in common are presumed to take equal undivided  

                                                                            

interests, but this presumption is rebuttable."  Voss, 907 P.2d at 469 (citing D.M. v. D.A. ,  

885 P.2d 94 (Alaska 1994)).  



                                                             -22-	                                                       6898
  


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

                                                                                       70 

                                                                                                             

challenged law treats similarly situated persons differently."                             Such claims require us to  



decide  which  classes  are  to  be  compared  and  determine  whether  those  classes  are  



                                                                                                                            71  

                                                           

similarly situated or whether differences between the classes justify different treatment. 



                                                                    

                    The State argues that the classes for comparison should be unmarried co- 



owners and married co-owners.  Judge Pfiffner rejected that argument and compared the  



plaintiff couples (who are same-sex couples in marriage-like relationships) to married  



couples.  



                                                                                         

                   We  decided  above  that  the  tax  exemption  program  draws  a  facial  



                                                                                                      72  

classification  between  same-sex  couples  and  opposite-sex  couples.    Although  the  



                                                                                        

superior court defined the classes somewhat differently - it compared same-sex couples  



and married couples - this definitional difference is inconsequential.  Because opposite- 



                                                                                             

sex couples can marry and have their marriages recognized in Alaska, for purposes of  



                           

this appeal, there is essentially no difference between married couples and opposite-sex  



couples who want to marry.  



                   We must next determine whether same-sex and opposite-sex couples are  



similarly situated with respect to the benefits at issue.  The superior court found that  



married couples and same-sex domestic partners are similarly situated because they make  



          70       Alaska Civil Liberties Union , 122 P.3d at 787 (citing Alaska Inter-Tribal  



Council v. State, 110 P.3d 947, 966 (Alaska 2005); Lawson v. Helmer , 77 P.3d 724, 728  

                                       

(Alaska 2003)).  



          71       Alaska Inter-Tribal Council , 110 P.3d at 967 ("If it is clear that two classes  

                                                                               

are not similarly situated, this conclusion 'necessarily implies that the different legal  

                                                                                  

treatment of the two classes is justified by the differences between the two classes.' "  

(quoting Lauth v. State , 12 P.3d 181, 187 (Alaska 2000))) (citations omitted).  



          72  

                                                                                               

                    Cf.  Alaska  Civil  Liberties  Union,  122  P.3d  at  788  ("[T]he  proper  

comparison is between same-sex couples and opposite-sex couples, whether or not they  

are married.").  



                                                            -23-                                                       6898
  


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

                                                                                                                

similar long-term commitments to each other, including commitments to co-own their  



homes.  



                    The State argues that committed same-sex couples are not similarly situated  



                                          

to married couples because only married couples own property as tenants by the entirety.  



                                                   

This argument merely recites one potential aspect of marriage: a married couple's ability  



                                                                                

to own property as tenants by the entirety.   But the State has not explained what it is  



                                                             

about tenancy by the entirety that could justify denying same-sex couples equal access  



                                 

to the tax exemption.  The only justification the State identifies is based on marital status,  



                    

a  difference  that  leads  back  to  the  constitutional  issue.    (To  the  extent  the  State's  



                                                                              

argument bears on the importance of governmental interests, we will discuss it when we  



apply the three-part analysis for equal protection claims in Alaska.)  



                                                                                                         

                    Moreover, tenancy by the entirety could not be the basis for distinguishing  



                                                                     

between these classes.  First, married couples do not necessarily co-own their residences  



                                        73  

as tenants by the entirety.                 Second, the exemption program makes the form of title  



               74  

irrelevant.         



                    The  couples  argue  that  the  couples  in  this  case  "have  cared  for  and  



supported each other, built and shared homes together, and combined finances.  Their  



                                              

relationships are like those of committed opposite-sex couples in every way except that  



                                                                                 

they cannot marry under Alaska law."  In ACLU , we considered similar arguments and  



noted:  



          73        The  members  of  a  married   couple  do  not  necessarily  co-own  their  



residence.  One spouse might have owned the residence before the marriage, or might  

inherit it after the couple marries.  And there are statutory exceptions to tenancy by the  

                                                                                                         

entirety for property acquired by a couple during their marriage:  A conveyance or devise  

                                                                         

may expressly declare otherwise, or the married couple may create a community trust.  

                                                                                     

AS 34.15.110(b); AS 34.77.100.  



          74        3 AAC 135.085(a).   



                                                              -24-                                                         6898
  


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

                    Many same-sex couples  are  no doubt just as truly closely  

                                                                  

                    relat[ed] and closely connected as any married couple, in the  

                                                                         

                    sense of providing the same level of love, commitment, and  

                                                                 

                    mutual economic and emotional support, as between married  

                                 

                    couples, and would choose to get married if they were not  

                                                                                                   

                                                                       [75] 

                    prohibited by law from doing so.                         



For purposes of analyzing the effects of the exemption program, we hold that committed  



                                                                     

same-sex domestic partners who would enter into marriages recognized in Alaska if they  



could are similarly situated to those opposite-sex couples who, by marrying, have entered  



into domestic partnerships formally recognized in Alaska.  



                                                                                                                              

          D.	       The Tax Exemption Program Treats Same-Sex Domestic Couples And  

                    Opposite-Sex Couples Differently.  



                    We  must  next  determine  whether  the  challenged  program  treats  these  



                                                        76  

similarly situated classes unequally.                       The State maintains that the program treats all  



                              

unmarried couples equally because no unmarried couples can obtain the full exemption  



                                                                                                                           77  

                                                                                                                               We       

to the same extent that married couples can.  We rejected this argument in ACLU .  



                                                                                                                      

there held that the law treats same-sex couples differently from opposite-sex couples if  



                                                                                                                    78  

                                                                                                                        We said  

it prevents same-sex couples from becoming eligible for the benefits at issue. 



there:  



                                                                                  

                    The  municipality  correctly  observes   that  no  unmarried  

                    employees,  whether  they  are  members  of  same-sex  or  

                    opposite-sex  couples,  can  obtain  the  disputed  benefits  for  



          75        Alaska  Civil  Liberties  Union ,  122  P.3d  at  791  (alteration  in  original)  



(internal quotation marks omitted).  



          76        Id . at 787 ("Article I, section 1 of the Alaska Constitution mandates equal       



treatment of those similarly situated . . . .") (internal quotation marks omitted).  



          77        Id . at 788.  



          78	       Id .  



                                                               -25-	                                                        6898
  


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

                   their domestic partners.    But this does not mean that these  

                   programs treat same-sex and opposite-sex couples the same.  

                   Unmarried   public   employees   in   opposite-sex   domestic  

                   relationships have the opportunity to obtain these benefits,  

                   because employees are not prevented by law from marrying  

                   their opposite-sex domestic partners.  In comparison, public  

                                                                          

                   employees          in    committed         same-sex        relationships         are  

                   absolutely denied any opportunity to obtain these benefits,  

                                    

                   because these employees are barred by law from marrying  

                   their  same-sex  partners  in  Alaska  or  having  any  marriage  

                                                       

                   performed   elsewhere   recognized   in   Alaska.      Same-sex  

                   unmarried couples therefore have no way of obtaining these  

                                                                                    

                   benefits,   whereas   opposite-sex   unmarried   couples   may  

                   become  eligible  for  them  by  marrying.    The  programs  

                   consequently          treat    same-sex        couples      differently       from  

                                                  [79] 

                   opposite-sex couples.  



                   This  reasoning  applies  equally  here.  As  we  explained  in  ACLU ,  the  



                                                                                                                         80  

                                                          

Marriage Amendment dictates that only heterosexual couples can become "spouses." 



                                                                                                       

Likewise, opposite-sex couples may marry and obtain the full benefit of the exemption,  



                                                                                        

but same-sex couples may not. We affirm the superior court's finding that the exemption  



program treats similarly situated people unequally.  



                                 

          E.	      The Tax Exemption Program Violates The Equal Protection Rights Of  

                   Schmidt, Schuh, Vollick, and Bernard.  



                                                  

                   Having decided that the tax exemption program is facially discriminatory  



and  that  it  treats  similarly  situated  people  differently,  we  must  apply  the  three-part  



                                  

sliding-scale approach to equal protection under the Alaska Constitution.  Our equal  



protection  clause  "protects  Alaskans'  right  to  non-discriminatory  treatment  more  



          79       Id . (footnotes and citations omitted).  



          80       Id . at 788S89.  



                                                           -26-                                                     6898  


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

                                                                              81  

robustly than does the federal equal protection clause."                          "To implement Alaska's more- 



stringent equal protection standard, we have adopted a three-step, sliding-scale test that  



                                             

places a progressively greater or lesser burden on the state, depending on the importance  



of  the  individual  right  affected  by  the  disputed  classification  and  the  nature  of  the  



                                                      82  

                                                          Our sliding-scale approach involves a familiar  

governmental interest at stake . . . ." 



process:  



                             First, it must be determined at the outset what weight  

                                                      

                    should be afforded the constitutional interest impaired by the  

                                                                                            

                    challenged enactment.  The nature of this interest is the most  

                    important   variable   in           fixing   the   appropriate   level              of  

                   review . . . .  Depending upon the primacy of the interest  

                    involved,  the  state  will  have  a  greater  or  lesser  burden  in  

                   justifying its legislation.  



                             Second,  an  examination  must  be  undertaken  of  the  

                                                                                                  

                   purposes served by a challenged statute.  Depending on the  

                    level of review determined, the state may be required to show  

                                                                         

                    only that its objectives were legitimate, at the low end of the  

                                      

                    continuum, or, at the high end of the scale, that the legislation  

                                              

                   was motivated by a compelling state interest.  



                             Third,  an  evaluation  of  the  state's  interest  in  the  

                   particular  means  employed  to  further  its  goals  must  be  

                   undertaken.    Once  again,  the  state's  burden  will  differ  in  

                    accordance with the determination of the level of scrutiny  

                   under the first stage of analysis.  At the low end of the sliding  

                                                                                   

                    scale, we have held that a substantial relationship between  

                   means and ends is constitutionally adequate.  At the higher  

                    end  of  the  scale,  the  fit  between  means  and  ends  must  be  



          81       State, Dep't of Health & Soc. Servs. v. Planned Parenthood of Alaska, Inc.                                ,  



28 P.3d 904, 909 (Alaska 2001) (citing State v. Anthony, 810 P.2d 155, 157 (Alaska  

1991)).  



          82  

                                                               

                   Alaska Civil Liberties Union , 122 P.3d at 787 (quoting Malabed v. N. Slope  

Borough , 70 P.3d 416, 420S21 (Alaska 2003)) (internal quotation marks omitted).  



                                                            -27-                                                       6898
  


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

                   much closer.  If the purpose can be accomplished by a less  

                                                                         

                                                                                                       [83] 

                   restrictive alternative, the classification will be invalidated.  



                    1.	      Minimum scrutiny resolves this case.  



                    Government action that burdens only economic interests generally receives  



                                    84  

                                          Because  the  tax  exemption  program  affects  the  couples'  

only  minimum  scrutiny. 



                                                                                                     

economic interests, it is subject to at least minimum scrutiny. Because minimum scrutiny  



resolves this case, we do not need to consider the couples' contention that we should  



apply heightened scrutiny.  



                                                                                                

                    2.	      The governmental interests are legitimate, but the classification  

                             is not substantially related to those interests.  



                                                                                                      

                   Under  minimum  scrutiny,  the  governmental  interests  advanced  by  the  

                                                            85  Minimum scrutiny requires only a "fair and  

                                                                 

challenged law need only to be legitimate. 

substantial relation" between the means and the legitimate goals of the challenged law.86  

                                                                                                       



                    The  State  argues  that  the  marital  classification  advances  governmental  



interests  "in  cost  control,  administrative  efficiency,  and  promotion  of  marriage."  



Although  we  held  in  ACLU   that  these  same  interests  failed  to  justify  the  marital  

                

classification,87 the State contends that its interest in cost-control is greater here than it  

                                                                              



was  in  ACLU   because  tax  exemptions  must  be  narrowly  construed  to  maintain  the  



          83       Alaska Civil Liberties Union , 122 P.3d at 789 (citing Matanuska-Susitna  



Borough Sch. Dist. v. State, 931 P.2d 391, 396S97 (Alaska 1997)).  

               



          84  

                         

                   Id . at 790 (citing Church v. State, Dep't of Revenue, 973 P.2d 1125, 1130  

(Alaska 1999)).  



          85       Id . at 790 (citing Matanuska-Susitna Borough , 931 P.2d at 396S97).  



          86       Planned Parenthood of Alaska, Inc. , 28 P.3d at 911 (quoting Isakson v.  



Rickey , 550 P.2d 359, 362 (Alaska 1976)).  



          87       Alaska Civil Liberties Union , 122 P.3d at 790S93.  



                                                            -28-	                                                      6898
  


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

                                                                                       

broadest possible tax base and to equalize the tax burden.  It also contends that its interest  



in administrative efficiency is greater here because there is a larger pool of persons -  



                                                

"all  potentially  eligible   real   property  owners  as  opposed  to  identifiable  public  



employees" - who would apply and be eligible for the disputed benefits.  Finally, it  



                                            

argues that providing equal benefits to same-sex couples does not encourage opposite- 



sex couples to marry.  



                    The State's proffered interests are legitimate.  But the classification here is  



not sufficiently related to those interests.   



                                                                                                 

                    First,  we  have  repeatedly  explained  that  "cost  savings  alone  are  not  

sufficient government objectives under our equal protection analysis."88  The government  



                                               

can adequately protect its tax base and minimize cost without discriminating between  



similarly situated classes.  



                     Second, the State allows married couples to establish eligibility for the  



                                                                               

exemption merely by making a sworn statement.   No other proof of marital status is  



                                                                                                       

required.  Thus, the State's assertion that sworn statements will not suffice for same-sex  



                                                                          

couples is unpersuasive. The State lists potential impediments to verifying that same-sex  



                                                                                      

couples  are  in  marriage-like  relationships,  but  it  has  not  explained  why  the  initial  



application  cannot  require  disclosure  of  sufficient  information  to  satisfy  threshold  



municipal concerns about a given relationship.  The State seems to suppose that no initial  



                                                  

disclosure can be sufficient, but we are unwilling to make that assumption.  We rejected  



                                                    89  

an equivalent argument in ACLU .  



                                                                                         

                    Third, we can assume that providing benefits to spouses promotes marriage  



          88        Herrick's Aero-Auto-Aqua Repair Serv. v. State, Dep't of Transp. & Pub.                               



Facilities , 754 P.2d 1111, 1114 (Alaska 1988);                          see also Alaska Pac. Assurance Co. v.  

Brown , 687 P.2d 264, 272 (Alaska 1984).  



          89        Alaska Civil Liberties Union , 122 P.3d at 791S92.  



                                                               -29-                                                             6898  


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

among adults who can marry. But "restricting eligibility to persons in a status that same-       



sex  domestic  partners  can  never   achieve  .  .  .  cannot  be  said  to  be  related  to  that  



               90  

interest."         The State has not explained how denying benefits to couples who cannot  



                                                                                                                          

marry will promote marriage in couples who can.  We assume, as the couples argue, that  



                  

giving the full benefit only to married couples will not encourage same-sex domestic  



                   

couples to  leave their partnerships and enter into heterosexual relationships with an  



intention to marry.  



                                                                                                       

                     The State's additional arguments are unpersuasive. For example, the State  



                                                                                                        

argues that same-sex couples will be able to obtain the exemption program's full benefit  



                                       

in some circumstances.  This contention is irrelevant, because it is undisputed that the  



                                                                                                           

full benefit of the exemption program was unavailable to these two couples, and would  



                                                                         

likewise be unavailable to any other same-sex domestic couple in similar circumstances.  



                     Because the exemption program's marital classification does not bear a  



                                       

substantial  relationship  to  the  interests  identified  by  the  State,  we  conclude  that  the  



exemption program fails minimum scrutiny and violates these couples' rights to equal  



protection.  



           F.        An Exemption Applicant Must Have An Ownership Interest.  



                                                                                              

                     The State contends that because they were not eligible for the senior citizen  



exemption, it was error to rule for Fred Traber and Laurence Snider, the third couple.  



                                                                                

Alaska Statute 29.45.030(e) exempts $150,000 of assessed value of a "property owned  



                       

and occupied as the primary residence and permanent place of abode by a [senior citizen  



or disabled veteran]."  (Emphasis added.)  The State argues that the statute requires that  



the senior citizen both occupy and own the residence.  Because Fred Traber was the "sole  



owner" but was not over 65 and Laurence Snider was over 65 "but had no ownership  



           90        Id. at 793.  



                                                                 -30-                                                                6898  


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

interest," the State contends that neither met the statute's eligibility requirements.  It also   



argues that the superior court erred in reading the relevant regulation, 3 AAC 135.085(a),   



as creating an exception to the ownership requirement.  



                    We  must  therefore  decide  whether  the  senior  citizen  must  have  an  



ownership interest in the residence.   



                    We begin with the words of the statute.  They exempt a residence "owned  



                                                  91  

                                                      They seem to express necessary conditions for the  

and occupied" by a senior citizen.                                                      



exemption.  The conjunction "and" between "owned" and "occupied" implies that the  



                                                                    

senior citizen must both own and occupy the residence.  No words in the statute imply  



that  a  residence  is  exempt  if  the  senior  citizen  has  no  ownership  interest  in  it.    We  



                                                          

therefore read the statute to require the senior citizen to occupy the residence and to have  



                                                                                             

some ownership interest in it.  Per the statute's words, if only one member of a couple  



       

is  a  senior  citizen,  but  that  member  has  no  ownership  interest  in  the  residence,  the  



exemption does not apply.  



                    In granting relief, the superior court relied on 3 AAC 135.085(a), which  



                                                  

states, "[w]hen an eligible person and his or her spouse occupy the same permanent place  



of abode . . . the reimbursement applies, regardless of whether the property is held in the  



name of the husband, wife, or both ."  (Emphasis added.)  The superior court reasoned  



                 

that "[t]he regulation language clearly extends the Tax Exemption to eligible applicants  



who share a home with their spouse, but who do not own the home."  



                    The State asserts that the regulation's reference to an "eligible person" must  



incorporate the statute's eligibility requirements, including the requirement of ownership.  



                                                                       

                    Traber and Snider respond that if they could marry, Snider would receive  



          91        AS 29.45.030(e).  



                                                             -31-                                                           6898  


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

                                                                                                               92  

the full exemption even though the property was held in Traber's name.                                              Citing the  



                  

regulation, they also argue that the State treats a senior citizen (or disabled veteran)  



spouse as owning 100% of the property, even if he or she does not.  They claim that  



                                                              

Snider is eligible to claim the exemption as a senior citizen even though the home is held  



exclusively in Traber's name.  



                                                                                                                   

                    The implementing regulation relied on by the superior court and by the  



                                                                                  

couples, 3 AAC 135.085(a), specifies when the State will reimburse municipalities for  



                                                                                             

the tax revenues lost as a result of the statutory exemption.  It does not explicitly excuse  



or ameliorate any exemption requirements set by the enabling statute.  



                                                                                                             

                    We do not read the regulation as making it irrelevant that a senior citizen  



                                                                                         

has no ownership interest at all.  The regulation does make it irrelevant that the property  



                                                                                 93  

                                                                                     That language means that the  

"is held in the name of the husband, wife, or both." 



                                                                             94  

                                                                                       

identity of the title holder is not itself determinative,                       but the regulation does not say that  



                                                         

actual ownership is irrelevant.  Had that been the promulgators' intention, we would  



                                                                       

expect the regulation to refer to "ownership," not title ("held in the name of").  And to  



read the regulation to make ownership altogether irrelevant would cause it to conflict  



with the plain words of the statute.  The best way to avoid any such conflict is to read  



                                                                                    

"eligible person" in the regulation to refer to a person who is eligible, per the statute's  



          92        AS 29.45.030(e).  



          93        3 AAC 135.085(a).  



          94        Cf. AS 34.15.010(d), which implicitly recognizes a distinction between a  



spouse's interest in a family home as memorialized by the title and a property interest  

                                                                                                        

entitled to protection.  Unless the spouse appears on the title, that statute provides that  

                                    

the spouse's failure to join in the deed or conveyance of the family home does not affect  

                    

the validity of the transaction so long as the spouse does not timely sue to set aside the  

                             

conveyance.  Id.  



                                                              -32-                                                         6898
  


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

                                                                                                95  

requirements, for the senior citizen or disabled veteran exemption.    Given the statute's  



plain words and the absence of any contrary implication in the statute, we are unwilling  



to read the regulation to mean that the senior citizen or disabled veteran does not need  



to have any actual ownership interest at all in the property.  We therefore reject the  



reading the superior court adopted.  



                    Even assuming the expansive reading of the regulation proposed by the  



                                                                           

couples  and  adopted  by  the  superior  court  were  permissible,  the  word  "eligible"  in  



                                            

3 AAC 135.085(a) is, at best for the couples, ambiguous.  The couples may assume that  



                                                       

anyone benefitted by the exemption program, i.e., either a senior citizen or a disabled  



                                                                                                                 

veteran  who  both  owns  and  occupies  the  residence,  or  the  spouse  who  owns  the  



                                                                                                             

residence occupied by the senior citizen or disabled veteran, is "eligible."  But it would  



be odd to rely on an ambiguous regulation to invert the meaning of an unambiguous  



                                                                                       

statute.  And most importantly, "eligible" as it is used in the controlling subsection of the  



                                                        

statute cannot be read to suggest that a senior citizen or disabled veteran applicant does  



                                                                                          96  

not need to have some ownership interest in the residence.                                    Other  passages in the  



          95        When interpreting an ambiguous regulation, we give it an interpretation that  



avoids  putting  the  regulation  into  conflict  with  its  enabling  statute.    See  State  v.  

                                               

Anderson ,  749  P.2d  1342,  1343S44  (Alaska  1988)  (quoting  AS  44.62.030)  ("[N]o  

regulation adopted is valid or effective unless consistent with the statute and reasonably  

                                                          

necessary to carry out the purpose of the statute."); see also Wilber v. State, Commercial  

Fisheries Entry Comm'n , 187 P.3d 460, 464 (Alaska 2008) (reviewing regulations to  

determine whether they conflict with statutory or constitutional provisions); see also  

Progressive Ins. Co. v. Simmons , 953 P.2d 510, 516 (Alaska 1998) (quoting  City of  

                    

Anchorage v. Scavenius , 539 P.2d 1169, 1174 (Alaska 1975)) ("To determine whether  

two statutory provisions stand in conflict, we must interpret them together, in context  

                                                                                           

with  other  pertinent  provisions  rather  than  in  isolation,  and  with  a  view  toward  

reconciling conflict and producing 'a harmonious whole.' ").  



          96  

                                                                  

                    AS 29.45.030(e) (providing in part that "if two or more persons are eligible  

                                                                                                           (continued...)  



                                                             -33-                                                       6898
  


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

various exemption statutes use "eligible" in ways that imply that the legislature used the  



term to refer to those particular persons, e.g., senior citizens or disabled veterans, the  



                                                                               97  

                                                                                   These statutory passages do not  

legislature intended the exemption statutes to benefit.  



imply that spouses who are not themselves either senior citizens or disabled veterans are  



                                                                                                     

also "eligible."   Indeed, these statutes do not discuss spouses at all, except in the context  



of widows or widowers, categories that necessarily exclude a person whose senior citizen  



or disabled veteran spouse is still alive.  



                                     

                    "Whether the regulation is consistent with the statute involves statutory  



interpretation,  which  is  a  question  of  law,  to  which  we  apply  our  independent  



          96        (...continued)  



for an exemption for the same property," they shall decide among themselves who is to  

                                      

receive the benefit).  



          97        See for example, AS 29.45.030(e) (using "eligible" consistently with our  

                                                                                                   

interpretation);  AS 29.45.030(f) (providing in part that "[t]o be eligible for [the senior  

                                                                                     

citizen or disabled veteran] exemption . . . the municipality may by ordinance require that  

                                                            

an individual also meet requirements under one of the following paragraphs: (1) the  

                      

individual shall be eligible for a permanent fund dividend . . . ."); AS 29.45.040(a)  

(providing for a "tax equivalency payment" to a resident who "is eligible" if the resident  

                                                                                                                  

is at least 65 years old or a disabled veteran or at least 60 years old and the widow or  

                                                                                         

widower  "of  a  person  who  was  eligible  for  payment  under  (1)  or  (2)  .  .  .  .");  

                                              

AS  29.45.040(b)S(d)  (using  "eligible"  in  a  way  that  implies  it  refers  to  the  direct  

beneficiaries of the exemption); AS 29.45.052(b) (requiring an individual applying for  

                                                                            

a below-poverty-level tax deferral to submit "proof of eligibility"); AS 29.45.053(b)  

                                                                                                         

(requiring that "if two or more are eligible" for a law-enforcement officer exemption,  

they shall decide among themselves who is to benefit).  



                    AS 29.45.030(e), in language parallel to the text of AS 29.45.040(a)  quoted  

above, extends the senior citizen/disabled veteran exemption to an owner/occupant who  

                                       

is at least 60 years old and is "the widow or widower of a person who qualified for" the  

                                                   

senior  citizen  or  disabled  veteran  exemption.  (Emphasis  added.)                                 It  is  probable  the  

                                                                                                        

legislature intended "qualified" to mean the same thing as "eligible."  



                                                              -34-                                                         6898
  


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

                 98  

judgment."             When  interpreting  statutes  and  regulations,  seemingly  conflicting  



provisions must be harmonized unless such an interpretation would be at odds with  



                           99  

statutory purpose.              

                    Reading the statute and the regulation together,100 we hold that a residence  



                                                 

is not exempt unless the senior citizen or disabled veteran has an ownership interest in  



                                                                    

it.   The statute does not require the senior  citizen or disabled veteran to be the sole  



                                                                                  

owner.   And the program, as defined by statute and regulation, does not specifically  



                                                                                                     

require that the ownership interest be reflected in the title.  But we  do not see how  



property can be "owned" by a senior citizen or a disabled veteran unless he or she has  



some actual ownership interest in the property.  



                    The superior court gave three additional reasons for rejecting the State's  



contention that the regulation did not extend the statutory exemption to this residence.  



                    

It first noted that the Municipality had granted a full exemption to another married couple  



although the "non-eligible spouse solely owned" their shared home.   That exemption  



                                                                     

was irrelevant because the statute's language controls.  If the exemption was granted to  



                                                                                                 

that couple in error, its grant neither determines a valid reading of the statute nor sets a  



                                                                                             101  

                                                                                                              

standard that must be followed for a similarly situated couple.                                   And if it was granted  



          98        State, Dep't of Natural Res. v. Greenpeace, Inc.                        , 96 P.3d 1056, 1061 n.10  



(Alaska 2004) (citing Payton v. State , 938 P.2d 1036, 1041 (Alaska 1997)).  



          99        Progressive Ins. Co. v. Simmons , 953 P.2d 510, 517 (Alaska 1998) ("The  

                                        

goal  of  reconciling  conflict  must  thus  give  way  when  harmony  between  potentially  

                                                                                                    

conflicting provisions can be achieved only at the price of an interpretation at odds with  

                                                                                                                 

statutory purpose.").  



          100  

                                                                                                       

                    See Underwater Constr., Inc. v. Shirley, 884 P.2d 150, 155 (Alaska 1994)  

(holding that related provisions should be read together).  



          101       See Flisock v. State, Div. of Ret. & Benefits, 818 P.2d 640, 644 n.5 (Alaska  



                                                                                                              (continued...)  



                                                              -35-                                                         6898
  


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

properly, it must be because the non-titled spouse nonetheless had an ownership interest  

                                                                                                    



that satisfied the statute.  



                    The superior court also thought it significant that Alaska Association of  



                                                                                                                

Assessing Officers Standard 1.(b) states in part that the exemption applies "to the entire  



                                                                               

value of the property irrespective of that percentage of ownership of the applicant."  But  



                                                                                           

as the State points out, the text of the standard presupposes that an "eligible applicant"  



                                                                                        

and his or her spouse own the residence; the text therefore incorporates the same notions  



                                                                                                

of  eligibility  we  discussed  above.                   And  the  State  correctly  reads  this  standard  to  



implicitly  tie  eligibility  to  ownership  because  the  standard  expressly  addresses  the  



                                    

situation "when partial property ownership exists."  The standard does not imply, much  



less  say,  that  a  residence  is  exempt  if  the  senior  citizen  or  disabled  veteran  has  no  



ownership interest in it.  



                                                                                                                      

                    Finally,  the  superior  court  thought  it  particularly  important  that  the  



"legislature intended the exemption to apply" even in those few situations when the  



                                        

applicant spouse does not own or partially own the residence.  It reasoned that if the two  



                                                                                                     

men  were  married,  the  senior  citizen  "would  be  able  to  claim  the  exemption."    It  



concluded that there was a viable equal protection claim.  



                    We assume for discussion's sake that if a married couple in Traber and  



Snider's  identical  situation  were  eligible  to  receive  the  exemption,  equal  protection  



                             

would not permit denying the exemption to Traber and Snider.  But as we have seen,  



                                                                              

AS 29.45.030(e) would not exempt the residence of a married couple if only one member  



           

was  a  senior citizen or disabled veteran but that member had no ownership interest  



                                                                                                 

whatsoever.            Because  Traber  and  Snider  were  treated  no  differently  from  that  



          101       (...continued)  



1991) (holding claimant was not entitled to agency's mistaken application of statutory  

                                                   

provision).  



                                                              -36-                                                             6898  


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

                                                                                                                 

hypothetical married couple, there was no equal protection violation if Snider in fact had  



no ownership interest in the property.  



                     The superior court granted complete summary judgment to  Traber and  



Snider and denied the governments' cross-motion.  It did not determine whether Snider  



                                                                                                                          

had any ownership interest in the residence, but it confirmed that the parties had agreed  



that there were no genuine issues of material fact.  Traber and Snider litigated their  



                          

claims without preserving any possible factual dispute about whether Snider had any  

actual ownership interest that would satisfy AS 29.45.030(e).102  



                     We have concluded as a matter of law that the senior citizen or disabled  



                                                                                                        

veteran must both occupy and have an ownership interest in the residence.  There is no  



                                                    

genuine  factual  dispute  about  whether  Snider  is  an  owner  of  the  residence.    We  



                                                       

consequently reverse that portion of the judgment in favor of Traber and Snider.  As to  



their claims, we remand for entry of judgment for the State and Municipality.  



           G.        The Attorney's Fee Award Requires Further Proceedings.  



                     The State and Municipality argue that it was error to grant the couples'  



             

motion  for  an  award  of  100%  of  their  attorney's  fees,  $135,475.50.    The  State  and  



           102       The  State  argues  here  that  Snider  had  "no  ownership   interest"  in  the  



residence, and the superior court appeared to assume that he had none.  The couples'                       

complaint did not allege that Snider was in fact an owner of the residence, nor does the  

couples' appellate brief.  



                     The complaint instead alleged that the home "is held in Traber's name, but  

                                                                                                                            

the couple has made it their home together and both partners view the home as belonging  

                                     

to both of them."  Their appellate brief makes the same assertion.  The parties' cross- 

                                         

motions for summary judgment raised no factual dispute about whether Snider in fact  

had  any  ownership  interest  in  the  residence.                           In  short,  Snider  and  Traber  have  not  

                                                                              

asserted that Snider had any legally cognizable ownership interest in the residence or that  

                                                                                                         

an alternative ground - that Snider in fact has some qualifying ownership interest -  

                                                                                                         

exists for affirming the court's judgment in their favor.  



                                                                  -37-                                                             6898
  


----------------------- Page 38-----------------------

                                            

Municipality contend that it was an abuse of discretion not to make the findings needed  



to address their arguments opposing the fees motion.  



                                                                                    

                     The couples' motion sought $135,475.50 for 458.8 billed hours of services.  



                   

The parties filed memoranda discussing whether the couples qualified as constitutional  



                       

claimants and whether equitable factors applied.  The State and Municipality argued that  



the requested fees were excessive, reflected duplicative services, and were much higher  



                                                                

than those awarded in ACLU , the case the couples claimed controlled.  The Municipality  



                                                                                   

also  argued  that  the  couples  did  not  establish  that  there  was  insufficient  economic  



                                                                                                     

incentive to bring the litigation, and that other factors, including the relative simplicity  



of the case, justified a reduction in the award.  On appeal, the State and Municipality  



argue that the court made no findings resolving their objections.  



                                                                                                        

                     We first observe that our reversal of the portion of the judgment entered in  



               

favor of Traber and Snider requires reconsideration of the fee award, aside from the  



                                                                       

reasons the State and Municipality advance.  Because Traber and Snider are no longer  



                                                    

prevailing  parties,  fees  may  not be  awarded  to  them.    We  leave  it  to  the  parties  on  



remand to explore the reversal's effect on any claim for attorney's fees.  



                                                               

                     Because the same disputes may recur on remand, we now turn to the issues  



raised by the State and Municipality.   



                     The   fees   order   awarding   the   couples   the   full   amount   requested,  



                                                 

$ 135,475.50, briefly stated that the couples had "properly" moved  for fees under Alaska  



                                                                                                                      

Civil Rule 82 and AS 09.60.010 and that the requested fees were reasonable in terms of  



                                                                                                         

hours spent and rates billed.  It did not explain how Rule 82 or AS 09.60.010 applied,  



                                                                             

did not state whether the couples were prevailing constitutional claimants for purposes  



                                                                                                          

of AS 09.60.010, did not discuss whether the couples had sufficient financial incentive  



                                                                                      

to sue absent their constitutional claims, and  did  not discuss whether Rule 82(b)(3)  



                                                                                                          

factors  or  other  factors  were  relevant.                    It  did  not  address  any  of  the  governments'  



                                                               -38-                                                          6898
  


----------------------- Page 39-----------------------

arguments, including their arguments that the billings reflected excessive and duplicative  



services.  



                    The couples argue that as the prevailing parties, they can recover fees under  



Rule 82 and AS 09.60.010(c)(1), and that the superior court adequately explained its  



decision  by  referring  to  Rule  82  and  AS  09.60.010.    They  rely  on  Krone  v.  State,  



Department of Health & Social Services for the proposition that courts should generally  



                                                                                                   

award  full  reasonable  attorney's  fees  to  couples  who  prevail  on  their  constitutional  

claims.103  



                   Krone addressed the interplay of Rule 82 and AS 09.60.010.104   We there  

                                                                                                                 



explained that AS 09.60.010 does not preclude the court from considering equitable  

                                                                                               



factors,  including  the  Rule  82(b)(3)  factors,  in  determining  whether  the  fees  were  

                                  

reasonable.105    But  we  cautioned  that  a  trial  court's  "ultimate  conclusion  should  be  

                      



reached only after express consideration of all factors relevant to a determination of full  



                                                                                                     106  

reasonable fees for a claimant who prevails on constitutional claims."                                     A court must  

                                                                                          

make sufficient findings to permit meaningful review of an attorney's fees award.107  For  

                                                                                  



          103      See Krone v. State, Dep't of Health & Soc. Servs., 222 P.3d 250, 255                                 S56  



(Alaska 2009).  



          104      Id .  



          105      Id . at 257S58.  



          106      Id . at 258.  



          107      Simpson  v.  Murkowski,  129  P.3d  435,  448  n.65  (Alaska  2006)  ("[A]  



superior court's order must contain specific findings of fact and conclusions of law to  

                                                                                                

permit meaningful review by this court.") (internal quotation marks omitted); S.L. v. J.H.,  

883 P.2d 984, 986 (Alaska 1994) ("It has been our practice to remand a case to the  

superior court when its findings are not detailed enough or sufficiently explicit to allow  

meaningful review.").  



                                                            -39-                                                       6898
  


----------------------- Page 40-----------------------

example, in Simpson v. Murkowski the superior court found that the couples were public  



                                                                                          

interest litigants, but we remanded because the superior court did not explain whether the  

couples had sufficient economic incentive to bring the suit.108  



                                                                            

                    An absence of explicit findings is not necessarily fatal.  In Law Project for  



                                                                               

Psychiatric Rights, Inc. v. State , we stated, "[b]ecause the superior court's attorney's fees  



                                                                                    

award accords with the presumptive percentages in Rule 82(b)(2) . . . the court need not  

                                                  109   And in State v. Jacob we affirmed the award even  

                                                        

offer an explanation of its award."  

though the superior court did not explicitly find prevailing-party status.110  The bases for  



the awards were clear in those cases, so no further explanations were needed.  



                    But here it is not self-evident from the order or the record how or whether  



                                                

the superior court resolved the governments' contentions.  The order did not address  



                                                             

their contentions, supported by citations to the billing records, that the hours billed and  



services  provided  by  seven  experienced  attorneys  billing  at  substantial  rates  were  



                                                                     

excessive and duplicative.  The award did not accord with the presumptive percentages  



set  out  in  Rule  82(b)(2).    We  cannot  tell  whether  the  award  took  into  account  any  



                                                           

Rule 82(b)(3) factors or other equitable factors.  We cannot assume there was an implicit  



conclusion that no Rule 82(b)(3) factors or equitable factors applied.  



                                           

                    And  although  we  can  safely  assume  that  the  court  concluded  that  the  



                                                                      

couples had prevailed on constitutional claims, the court made no finding about whether  



                           

the  couples  had  sufficient  economic  incentive  to  sue,  one  of  the  statutory  factors  



          108       129 P.3d at 447S49.  



          109       239 P.3d 1252, 1257 n.25 (Alaska 2010) (quoting Marsingill v. O'Malley ,  



128 P.3d 151, 163 Alaska 2006)) (internal quotation marks omitted).  



          110       214 P.3d 353, 359-60 (Alaska 2009).  



                                                             -40-                                                       6898
  


----------------------- Page 41-----------------------

                                             111  

                                                                                               

pertinent to awarding full fees.                  The award's reference to AS 09.60.010 is not self- 



                                                                                      

explanatory.  We cannot assume that there was an implicit finding that the couples had  



insufficient economic incentive to sue.  



                                            

                   Because Traber and Snider are no longer prevailing parties, we vacate the  



                                                                             112  

                                                                                                      

entire fees award and remand for further proceedings.                             Remand will also permit entry  



of findings or rulings sufficient for appellate review of subsequent contentions that an  



attorney's  fees  award,  including  an  award  of  full  fees,  on  remand  was  an  abuse  of  



discretion, legally erroneous, or clearly erroneous.  



V.        CONCLUSION  



                                                     

                   For these reasons, we AFFIRM the superior court's declaration that "in  



combination," AS 29.45.030(e) and 3 AAC 135.085(a) and (c) violate Alaska's equal  



protection clause "by imposing a spousal limitation that facially discriminates against  



                                                   

same-sex domestic partners."  We likewise AFFIRM the declaration of prevailing party  



                                                                                                       

status  as  to  Schmidt,  Schuh,  Vollick,  and  Bernard.    As  to                        Snider  and  Traber,  we  



REVERSE the ruling that the exemption applied to them and that they had "stated a  



                                                                                                         

viable equal protection claim."  We also REVERSE the order for entry of final judgment  



to the extent it declares Snider and Traber to be prevailing parties, and REMAND for  



          111      See AS 09.60.010(d)(2).  Moreover, when it executed the order for entry  



of  final  judgment  about  two  months  before  it  entered  the  order  awarding  fees,  the  

superior court struck through language proposed by the couples that would have ruled  

                                            

"that  the  plaintiffs  are  thus  'constitutional  litigants'  within  the  meaning  of  [AS]  

09.60.010(c) and . . .  Rule . . . 82."  



          112      Remand  will  give  the  Municipality  an  opportunity  to  elaborate  on  its  



apportionment request.  The Municipality asked the superior court to apportion fees pro  

                                                                                                 

rata.  We do not need to decide whether that request preserved the issue, because the  

couples do not oppose remand on the issue of apportionment, and the State's reply brief  

does not respond to the Municipality's appellate apportionment argument. Because we  

                                                                                                             

remand for further proceedings, the parties may litigate apportionment on remand.   



                                                            -41-                                                      6898
  


----------------------- Page 42-----------------------

entry of judgment for the State of Alaska and Municipality of Anchorage on the claims         



of Traber and Snider.  



                                

                        We  VACATE  and  REMAND  the  attorney's  fee  award  for  the  reasons  



discussed in Part IV.G.  



                                                                             -42-                                                                6898
  


----------------------- Page 43-----------------------

WINFREE, Justice, concurring.  



                                                                                                  

                     I agree with the court's analysis and decision  as it addresses the issues  



                                                                                    

litigated in the superior court and presented to us in this appeal.  Alaska Civil Liberties  



                       1  

                                                                                                                         

Union v. State  mandates the result - we are bound to follow its precedent and neither  



the  State  of  Alaska  nor  the  Municipality  of  Anchorage  contends  that  it  should  be  



overruled.  



                                                                            

                     I write separately only to question whether the same result might have been  



                                        

achieved through a pure statutory interpretation analysis, even though it was not argued  



in the superior court or on appeal.  



                                                                                            

                     As we hold today, AS 29.45.030(e) requires that a person claiming a senior  



citizen or disabled veteran property tax exemption must have an ownership interest in  



                                                                                                                    

the assessed residential real property.  The tax exemption applies to the "real property  



                                                                                                      

owned and occupied as the primary residence and permanent place of abode" by an  



                         2  

                                                                                                                

eligible person.            But nothing in AS 29.45.030(e) expressly limits the exemption to the  



                                                                                     3  

percentage ownership held by the eligible applicant.   And the connected regulation  



                                                                                                        

regarding the State's reimbursement to the Municipality provides that when the property  



                                                                 

is occupied by two or more persons who are not married, the exemption amount "applies  



           1          122 P.3d 781 (Alaska 2005).  



           2         AS   29.45.030(e).    Cf.   AS  29.45.160(b)  (providing  that  real  property  



assessments are "to the record owner" as reflected by the district recorder and that the   

person "listed as owner is conclusively presumed to be the legal record owner").  



           3  

                                  

                     Cf. id.  The one sentence in this statutory provision that might suggest such  

                                                                                                  

a limitation states that "if two or more persons are eligible for an exemption for the same  

property, the parties shall decide between or among themselves who is to receive the  

benefit of the exemption."  But, as I have noted, this question was not litigated in the  

             

superior court or contested on appeal - without the benefit of briefing and analysis, it  

                                                                                     

is difficult to determine what this language means.  



                                                                  -43-                                                            6898
  


----------------------- Page 44-----------------------

                                                                                                    

only to the portion of the property permanently occupied by the eligible applicant . . . as  



                              4  

a place of abode."   



                      As noted in our comparison of a tenancy by the entirety and a tenancy in  



                5  

common,   absent  an  agreement  to  the  contrary,  tenants  in  common  own  undivided  



interests  in  real  property  and  have  an  equal  right  to  possess  the  entire  property.  



Accordingly,  if  any  two  (or  more)  unmarried  persons  are  tenants  in  common  of  



                                                                  

residential  real  property  used  as  their  primary  place  of  abode,  each  has  the  right  to  



                                                                                                                               

occupy 100% of the property; if one of those persons is an eligible applicant for the tax  



                                                     

exemption, then it may be that the exemption applies to its fullest extent, just as if the  



only owners and occupiers were a husband and wife.  



                                                                                                                                  

                      The factual anomaly here is that two of the unmarried couples in this case  



                                                                                                

owned their primary residence as tenants in common, but the eligible applicant of each  



                                                                                                    

couple  expressly  stated  in  her  application  that  she  owned  and  occupied  50%  of  the  



                                                                                                                                   

property.  It seems to me inconsistent that these couples could state they were in long- 



                                                                                                                 

term, committed, marriage-like relationships while at the same time somehow splitting  



                                                                                              

the occupancy of their residences into separate spheres.  I suspect the statements about  



occupation  were  based  on  a  misunderstanding  of  the  law  of  common  tenancy  and  



                                                                                                                                     6  

undivided possession, and simply mirrored their (undivided) ownership interests.   Had  



the eligible applicants stated that they owned an undivided 50% and occupied 100% of  

                                                                                                           



the residential property, they may well have been entitled to the exemptions based on the  

                                                                         



           4          3 Alaska Administrative Code (AAC) 135.085(c) (2012).  



           5          Op. at 22 n.69.  



           6          I   would  be  surprised  if  the  same  mistake  were  not  made  by  eligible  



applicants who were married and holding title to their residence with their spouses as   

either tenants by the entirety or tenants in common.  



                                                                    -44-                                                               6898
  


----------------------- Page 45-----------------------

express language of the statute and the related regulation.  



                   From the record before us, it seems we are faced with the issues addressed  



                                                       

in our decision because the parties all assume the senior citizen and disabled veteran tax  



exemption of AS 29.45.030(e) is limited to the eligible applicant's percentage ownership  



interest of the residence, except, due to 3 AAC 135.185(a), in the case of a residence  



                                                                                                      

owned and occupied by a married couple.  And if that is true, then today's decision  



                                                                                                       

correctly addresses it.  If, on the other hand, the statutory exemption is allowable in full  



                                                                          

with any amount of ownership and full occupation, then today's decision is unnecessary.  



                                                            -45-                                                      6898
  

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