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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Harris v. Millennium Hotel (7/25/2014) sp-6927

Harris v. Millennium Hotel (7/25/2014) sp-6927

         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  



DEBORAH HARRIS,                                        )  

                                                       )        Supreme Court No. S-15230  

                           Appellant,                  )  

                                                       )        Alaska Workers' Compensation  

                                                       )        Appeals Commission No. 13-005  

                                                       )  

         v.                                            )        O P I N I O N  

                                                       )  

MILLENNIUM HOTEL and NEW                               )        No. 6927 - July 25, 2014  

HAMPSHIRE INSURANCE CO.,                               )  

                                                       )  

                           Appellees.                  )  

                                                       )  



                  Appeal  from  the  Alaska  Workers'  Compensation  Appeals  

                  Commission, Laurence Keyes, Commission Chair.  



                  Appearances:  Eric Croft, The Croft Law Office, Anchorage,  

                                                       

                  and Peter Renn, Lambda Legal Defense and Education Fund,  

                                                              

                  Inc.,  Los  Angeles,  California,  for  Appellant.  Donald  C.  

                  Thomas  and  Kendra  E.  Bowman,  Delaney  Wiles,  Inc.,  

                                      

                  Anchorage, for Appellees.  Sonja Redmond, Law Office of  

                                                                                 

                  Sonja Redmond, Soldotna, and Kellie M. Fiedorek, Alliance  

                                                         

                  Defending Freedom, Washington, D.C., for Amicus Curiae  

                  Alaska Family Action.  



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

                  and Bolger, Justices.  



                  BOLGER, Justice.  


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

I.       INTRODUCTION
  



                                                                        

                   The Alaska Workers' Compensation Board denied a death benefit claim  



                                                                                                      

filed by the decedent's same-sex partner because the death benefit statute grants benefits  



only to a worker's "widow or widower" as defined by statute.  The Board construed  



                                    

these terms by applying the Marriage Amendment to the Alaska Constitution, which  



defines  marriage  as  "only  between  one  man  and  one  woman,"  thus  excluding  a  



decedent's  same-sex  partner.    Because  this  exclusion  lacks  a  fair  and  substantial  



                                                                                                         

relationship to the purpose of the statute, we conclude that this restriction on the statutory  



                                                                                   

definition of "widow" violates the surviving partner's right to equal protection under the  



law.  



II.      FACTS AND PROCEEDINGS  



                   Kerry Fadely, a manager at the Millennium Hotel, was shot and killed at  



                                                                                    

work in October  2011.  Millennium agreed that the death occurred in the course and  



scope of Fadely's employment.  Deborah Harris filed a workers' compensation claim for  



death benefits in March 2012 as Fadely's "dependant/spouse."  Millennium filed an  



                               

answer and notice of controversion denying benefits because it "ha[d] not received any  



                                                                     

documentation"  that  Harris  was  Fadely's  wife  or  husband.    Relying  on  Ranney  v.  

                                   1 it also controverted benefits based on Harris's status as an  

Whitewater Engineering,  



"unmarried co-habitant."  



                   Harris  filed  notice  that  she  was  challenging  the  constitutionality  of  the  

                                                                                         



statutory provisions of the Alaska Workers' Compensation Act that limit eligibility for  



death benefits to widows or widowers.  Harris said she was the "surviving same-sex  



partner" of Fadely and noted that they were "precluded from marrying each other under  

                                                



Alaska law."  Harris asked the Board to issue a final decision so that she could appeal the  



         1         122 P.3d 214 (Alaska 2005).  



                                                           -2-                                                       6927  


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

constitutional issue, given that the Board lacked the authority to determine whether the  

                                                                                              



statute violated her equal protection rights.  She attached documentary evidence as well  

                                                       



as several affidavits to support her factual assertions and "preserve[] any factual context  

                                                                                                       



for later judicial review."  



                    In  Harris's  affidavit,  she  described  her  relationship  with  Fadely  as  "an  



exclusive, committed, and financially interdependent relationship" that had spanned more  



than 10 years.  For most of those years, the couple lived in Alaska.  She said that she and  

                                                                                                     



Fadely had exchanged rings in 2005 and referred to each other as spouses or partners.  



Harris also stated that she and Fadely had joint credit cards and shared responsibility for  



household expenses, that they had raised their children from prior relationships together,  

                                                                                          



and that they would have married if they had been able to.  Harris attached an affidavit  

                                        



of domestic partnership that she and Fadely had completed in 2008 for another employer;  

                                                                                                   



completing the affidavit permitted Harris to be enrolled in Fadely's employer's medical  



and dental plans.  In the affidavit, they attested that they met the requirements of domestic  

                                                                     



partnership as listed in the document as of June 1, 2002.  



                    The parties submitted stipulated facts to the Board and asked the Board to  

                                                                      



make a decision without an oral hearing.  Millennium acknowledged that Fadely's death  

                                                                                 



was compensable, but it disputed Harris's claim that she and Fadely were "in a same-sex  

                                                                                           



relationship that could justify a conferral of rights or benefits" and noted that the two  

                                                                                                 



were "not married to one another as required under the [Alaska Workers' Compensation]  



Act and as defined under Alaska law."  The parties agreed that the Board did not need to  

                                                                                        



consider Harris's evidence to decide her claim and also agreed that the Board lacked the  



authority to decide constitutional questions.  



                    The Board decided that Harris was not entitled to benefits because at the  



time of Fadely's death "[Harris] and [Fadely] were not, and could not be married to one  

                                                                                                         



                                                               -3-                                                         6927
  


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

another in Alaska."  The Board declined to address Harris's constitutional arguments  



because it lacked jurisdiction to do so.  



                   Harris      appealed       to    the    Alaska      Workers'        Compensation            Appeals  



Commission,  again  asserting  her  constitutional  claim  but  acknowledging  that  the  



Commission  did  not  have  jurisdiction  to  declare  a  statute  unconstitutional.                                 The  

                                         



Commission agreed it lacked jurisdiction to resolve the constitutional question, but it  



affirmed the Board's decision that Harris was not entitled to death benefits because she  

                                                                       



did not qualify as a widow or widower as defined in the Alaska Workers' Compensation  

                      



Act.    The  Commission  also  noted  that  Ranney  precluded  an  award  of  benefits  to  



unmarried cohabitants of deceased employees.  



                   Harris appeals the Commission's decision to this court.  



III.      STANDARD OF REVIEW  



                   We  apply  our  independent  judgment  when  we  interpret  constitutional  

provisions  and  statutes.2  

                                       Statutes  are  presumed  to  be  constitutional,  and  the  person  



challenging a statute's constitutionality has the burden of showing that the statute is  

                                                                                                        

unconstitutional.3  An equal protection challenge involves resolution of several questions,  



                                                  4  

most of which are questions of law.                  We apply our independent judgment to questions  

                                                      



of law, adopting the rule of law that is most persuasive in light of precedent, reason, and  

                                                   

policy.5  

              



          2        State v. Schmidt, 323 P.3d 647, 655 (Alaska 2014) (quoting Alaska Civil  



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



          3        State, Dep't of Revenue v. Andrade, 23 P.3d 58, 71 (Alaska 2001).  



          4        See Schmidt, 323 P.3d at 655.
  



          5        Id. 
 



                                                           -4-                                                     6927
  


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

IV.       DISCUSSION  



                                                                                                                   

                   Harris argues that the denial of death benefits to her violates her right to  



                                                  

equal  protection  under  both  the  Alaska  and  the  United  States  Constitutions.    She  



                                                  

additionally argues that the denial of death benefits to her unconstitutionally infringes on  



her rights to liberty and privacy under both constitutions.  With regard to the Alaska  

Constitution, she contends that Alaska Civil Liberties Union v. State 6 (ACLU ) controls the  



result in this case.  



                                                                                          7 

                                                

                   Millennium argues that the Marriage Amendment  should be interpreted to 



preclude same-sex couples from receiving death benefits under the Alaska Workers'  



                                                                                                                            8  

                                                                                          

Compensation Act.  Millennium also contends that Ranney v. Whitewater Engineering 



controls the result in this case and that Harris's equal protection rights are not violated.  



          A.       The Marriage Amendment Does Not Preclude Harris's Claim.  



                   Our recent decision in State v. Schmidt addressed the question whether the  



                                                                                         9  

                                                                                                              

Marriage Amendment barred a similar equal protection claim.   In Schmidt we rejected  



the  State's  argument  that  the  Marriage  Amendment  foreclosed  an  equal  protection  



challenge  by  same-sex  couples  to  a  real  property  tax  statute  that  gave  certain  tax- 

                                                                                  

exemption benefits to married couples.10  We stated there that "the Marriage Amendment  



does not explicitly or implicitly prohibit the State from offering the same property tax  



          6         122 P.3d 781 (Alaska 2005).  



          7        Alaska Const. art. I,  25.  



          8         122 P.3d 214 (Alaska 2005).  



          9        323 P.3d 647 (Alaska 2014).  



          10       Id. at 656-59.  



                                                             -5-                                                      6927
  


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

                                                             

exemption to an eligible applicant who has a same-sex domestic partner that the State  



                                                                          11  

offers to an eligible applicant who has a spouse."                             



                                                                         

                    Just as the State argued in Schmidt, Millennium contends that the Marriage  



Amendment  must  be  interpreted  as  prohibiting  the  State  from  offering  to  same-sex  



couples  any  benefits  available  to  married  couples.    Millennium  offers  no  legislative  



history  for  the  amendment  itself,  relying  instead  on  the  history  of  the  enactment  of  



                                                                                       

AS 25.05.013.  Alaska Statute 25.05.013(b) provides:  "A same-sex relationship may not  



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



                    Millenium's  contention  here  is  substantially  similar  to  an  argument  

                                         



presented and rejected in Schmidt.   As we stated in Schmidt, the ballot measure "said  

                                                       



nothing about denying or limiting benefits" and "did not refer to, quote, or paraphrase  

                                                                                               



                             12                                                           13                      14 

AS  25.05.013(b)."                 We  also  observed  in  both  ACLU                          and  Schmidt            that  an  



                                                                                        

interpretation  of  the  Marriage  Amendment  like  the  one  Millennium  proposes  could  



                                                                                                                        15  

violate  the  federal  equal  protection  clause  as  interpreted  in  Romer  v.  Evans .                                    We       



conclude that the Marriage Amendment does not bar consideration of Harris's equal  



protection claim.  



          11        Id. at 658.  



          12        Id. at 657.  



          13        Alaska Civil Liberties Union v. State , 122 P.3d 781, 786 n.20 (Alaska 2005).     



          14        323 P.3d at 657 n.42 (citations omitted).  



          15        517 U.S. 620 (1996).  



                                                               -6-                                                         6927
  


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

           B.	        The Death-Benefits Provision Of The Alaska Workers' Compensation  

                      Act  Violates  Harris's  Equal  Protection  Rights  Under  The  Alaska  

                      Constitution.  



                      In an equal protection challenge under the Alaska Constitution, the party  



seeking to show a violation must "show either that facially neutral state action has a  

                                                                                                                           

discriminatory purpose or that the state action is facially discriminatory."16  

                                                                                                                             We held in  



both Schmidt and ACLU that statutes making benefits available solely to spouses were  

facially  discriminatory.17  

                                              The  Alaska   Workers'  Compensation  Act  provides  death  

benefits to widows and widowers in the event of a work-related death.                                                18  

                                                                                                                         Like the tax- 



exemption statute in Schmidt, the workers' compensation statute creates a classification  

between married and unmarried couples.19  

                                                                       And, as in Schmidt, the statute and Marriage  



Amendment together prevent same-sex couples from obtaining workers' compensation         



benefits to the same extent as married couples because same-sex couples are precluded  

from marrying in Alaska or having their out-of-state marriages recognized.20  

                                                                                                                                Based on  



our decisions in Schmidt and ACLU , we hold that the workers' compensation statute   



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



           16	        Schmidt, 323 P.3d at 659 (citations omitted).  



           17	        Id. at 659-60; Alaska Civil Liberties Union , 122 P.3d at 788-89.  



           18         AS 23.30.215(a).  AS 23.30.395(40) defines "widow" as "includ[ing] only     



the decedent's wife living with or dependent for support upon the decedent at the time of         

death, or living apart for justifiable cause or by reason of the decedent's desertion at such  

a time."  The definition of "widower" in AS 23.30.395(41) is similar.  



           19         See Schmidt, 323 P.3d at 659.  



           20         See id.  



                                                                     -7-	                                                              6927
  


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

                    We  next  consider  whether  "the  challenged  law  treats  similarly  situated  

persons differently."21  Harris argues that the workers' compensation statute treats same-      



sex  and  opposite-sex  couples  differently  because  opposite-sex  couples  "can  become  



eligible for benefits by marrying" while same-sex couples "are denied any means of  

                                



accessing death benefits."  Harris contends that she and Fadely were "similarly situated  



to  married  different-sex  couples  in  every  relevant  respect,"  including  their  financial  



interdependence  and  commitment  to  each  other.    In  response,  Millennium  relies  on  

                           

Ranney v. Whitewater Engineering22 to argue that the workers' compensation statute is  

                                                                      



"marriage-neutral" with respect to death benefits and is therefore "neutral on the issue of  



whether one's sexual orientation affects eligibility for death benefits."  



                    Ranney involved a constitutional challenge to the death-benefits provisions  

                                                                      



of the Alaska Workers' Compensation Act by a woman who for four years had cohabited  

                                                                                               

with, but never married, her boyfriend.23  

                                                                                                    

                                                            There was no dispute that the couple could have  



                                                                                   

married - by the time of the man's death, the two had become engaged - but they did  



      24  

not.                                                                     

          We held that the limitation on  benefits  to married persons did not violate the  



                                                              

woman's right to equal protection under the Alaska Constitution because the distinction  



the legislature made between married and unmarried couples there was an instance of  



permissible legislative line drawing that bore a fair and substantial relationship to the  



purpose  of  "provid[ing]  benefits  in  a  manner  that  is  'quick,  efficient,  fair,  and  



          21        Id. at 660 (citation and internal quotation marks omitted).  



          22        122 P.3d 214 (2005).  



          23        Id. at 216.  



          24        Id.  



                                                               -8-                                                         6927
  


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

                                                                           25  

predictable,' at a reasonable cost to the employer."                            We explained that "the legislature  



has  determined  that  legal  marriage  is  an  adequate  proxy  for  the  more  particularized  



inquiry concerning whether a relationship is serious enough or a partner is sufficiently  

dependent to justify awarding benefits."26  



                                                                                                                  

                    Ranney does not control the result in this case:  The classes that we are  



comparing are different and are treated differently.  Just as in ACLU and Schmidt, here  



"the  proper  comparison  is  between  same-sex  and  opposite-sex  couples"  rather  than  

between married and unmarried couples.27  The Alaska Workers' Compensation Act itself  



                                                                                                     

may deny death benefits to all unmarried individuals, but as  we  observed in ACLU ,  



unmarried opposite-sex couples "have the opportunity to obtain these benefits, because  



                                                                       28  

                                                                            

[they] are not prevented by law from marrying."                            Unlike the survivor in Ranney , Harris  



                                                                                   

could not legally marry her partner in Alaska or have an out-of-state marriage recognized  



                                                                29  

here because of the Marriage Amendment.                             



          25        Id. at 223.  



          26        Id. at 221.  



          27        Alaska Civil Liberties Union v. State , 122 P.3d 781, 788 (Alaska 2005),  



quoted in State v. Schmidt, 323 P.3d 647, 661 n.72 (Alaska 2014).  

                



          28        Id.  



          29  

                                                                          

                    Alaska Const. art. I,  25.  See also Alaska Civil Liberties Union , 122 P.3d  

                                                                                              

at 786 (interpreting Marriage Amendment).  Millennium also asserts that "Alaska does  

                                                           

not recognize common law marriage" to support its argument.  Marriages that occur in  

                                                                                                                 

Alaska must be ceremonial to be valid, AS 25.05.011(b), but we have never decided that  

                                                                                                                       

Alaska cannot recognize a common law marriage valid in another state.  See Burgess  

Constr.  Co.  v.  Lindley,  504  P.2d  1023,  1026  (Alaska  1972)  (Erwin,  J.,  concurring)  

(discussing "the conflicts of law principle that the validity of a marriage is determined  

by the law of the place where contracted" with regard to common law marriage (citing  

                                                                 

Loughran  v.  Loughran ,  292  U.S.  216  (1934))).    See  also  Weber  v.  State,  Dep't  of  

                                                                                            

                                                                                                              (continued...)  



                                                               -9-                                                         6927
  


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

                                                                    

                   Harris argues that she and Fadely were financially interdependent and in a  



personally  committed  relationship,  just  like  a  married  couple.    Millennium  does  not  



directly contest this assertion.  We considered and accepted similar arguments in ACLU  



and  Schmidt,  noting  that  many  same-sex  couples  have  "the  same  level  of  love,  



commitment,  and  mutual  economic  and  emotional  support"  as  married  couples  and  

"would choose to get married if they were not prohibited by law from doing so."30  

                                                                                                                       We  



thus  hold  that,  for  purposes  of  equal  protection  analysis  here,  committed  same-sex  



surviving  partners are similarly situated to widows or widowers, and that the death- 

                



benefits provision of the Alaska Workers' Compensation Act, together with the Marriage  

                               



Amendment, treat these similarly situated groups differently.  



                   Under Alaska's equal protection analysis, we next consider "what weight  

should be afforded the constitutional interest impaired by the challenged enactment."31  

                



Harris asks this court to apply a heightened level of scrutiny because, she argues, the  



statute "infringes upon substantial liberty interests" and because "the State has employed  

                                                                          



a classification based on both sexual orientation and sex."  Relying on many federal  



cases,  Harris  argues  that  "differential  treatment  of  individuals  based  on  their  sexual  



orientation warrants heightened scrutiny" under both the Alaska and U.S. Constitutions.  

                                                                      



Millennium argues that the interest involved is an economic interest entitled to only  



minimum  scrutiny.    Amicus  Alaska  Family  Action  similarly  maintains  that  sexual  



          29       (...continued)  



Revenue , Mem. Op. & J. No. 1188, 2004 WL 2486271 at *1 (Alaska Nov. 3, 2004)  

                                                       

(noting that Alaska court granted divorce to couple whose common law marriage had  

been recognized by Texas).  



          30  

                                      

                   Alaska Civil Liberties Union , 122 P.3d at 791, quoted in Schmidt, 323 P.3d  

at 661.  



          31  

                                  

                   Schmidt, 323 P.3d at 662 (quoting Alaska Civil Liberties Union , 122 P.3d  

at 789) (internal quotation marks omitted).  



                                                           -10-                                                      6927
  


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

orientation should not be considered a suspect or quasi-suspect classification subject to  

                                                                                                                



more exacting review.  



                   We have previously applied minimum scrutiny to workers' compensation  

                                                                                         

benefits  in  equal  protection  challenges  because  they  are  economic  benefits.32  

                                                                                                                        And  



because the minimum scrutiny that applies to economic challenges is sufficient to resolve  



this  case,  we  do  not  need  to  consider  Harris's  argument  that  we  should  apply  the  

                                                                                                    

heightened scrutiny that applies to other types of discrimination.33  



                   After identifying the nature of the constitutional interest, we consider "the  

purposes served by [the] challenged statute."34  When the individual interest is economic,  

                                                                                  

the State's objectives must be legitimate.35  We have held that the purpose of the workers'  



compensation  act  is  "to  'ensure  the  quick,  efficient,  fair  and  predictable  delivery  of  

                                     



indemnity and medical benefits to injured workers at a reasonable cost to employers' "  

                                                                                                        

and that this purpose is legitimate.36  



          32       See, e.g., Ranney v. Whitewater Eng'g , 122 P.3d 214, 223 (Alaska 2005)   



(quoting  Williams v. State, Dep't of Revenue, 895 P.2d 99, 104 (Alaska 1995)).  



          33       Schmidt, 323 P.3d at 663 (citation omitted).  



          34       Id. at 662 (quoting Alaska Civil Liberties Union , 122 P.3d at 789) (internal  

                                                                                          

quotation marks omitted).  



          35       Id. (citation omitted).  



          36       Ranney , 122 P.3d at 223 (quoting Meek v. Unocal Corp. , 914 P.2d 1276,  



1281 (Alaska 1996)).  



                                                            -11-                                                      6927
  


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

                    The next step is "an evaluation of the state's interest in the particular means  

                                                                                                

employed to further its goals."37                            

                                                 "At the low end of the sliding scale, we have held that  

a substantial relationship between means and ends is constitutionally adequate."38  



                    Harris argues that there is no substantial relationship between means and  

                               



ends in her case.  She identifies cost savings, administrative efficiency, and promoting  



marriage as purposes for the exclusion of same-sex couples from workers' compensation  



death benefits.  In response, Millennium contends that the purpose of the act is not limited  

                                                                                                         



to compensating injured workers and their dependents, and that we should also recognize  

                                                                                



that the statute is  intended  to promote the quick and efficient delivery of benefits to  

                                          

injured workers at a reasonable cost.39  

                                                           Millennium's arguments further address cost  



savings and administrative efficiency.  



                    In Ranney , we said that "compensating dependents is not the act's singular  

                                                                              

purpose,"40                                          

                 identifying the "broader purpose" of providing indemnity benefits through "a  



                                                                                                                   41  

                                                                                      

system  of  compensation  that  is  'quick,  efficient,  fair  and  predictable.'  "                                     But  



                                                                            

compensating dependents of workers who die from work-related injury is nonetheless a  



                       

purpose of the act:  Death benefits are one type of indemnity benefits, and the statute  



                                                                                   

requires some type of dependency for eligibility.  The  definition of "married" in the  



                                                   

statute "includes a person who is divorced but is required by the decree of divorce to  



          37        Schmidt, 323 P.3d at 662-63 (quoting Alaska Civil Liberties Union , 122 P.3d  



at 789) (internal quotation marks omitted).  



          38       Id. (citation and internal quotation marks omitted).  



          39        Millennium does not dispute that the classification here does not bear a fair           



and substantial relationship to a goal of promoting marriage.  



          40       Ranney , 122 P.3d at 220.  



          41       Id.  



                                                             -12-                                                          6927  


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

                                                                     42  

contribute to the support of the former spouse,"                         and the definition of "widow" requires   



                                                                                                             43  

that the survivor either live with or be dependent on the deceased worker.                                        



                    Harris  argues  that  the  administrative  burden  and  actual  costs  related  to  



determining  whether  a  surviving  partner  in  a  same-sex  couple  should  get  workers'  

                                                                                                   



compensation death benefits will be low simply because (1) there are not as many same- 



sex couples as there are opposite-sex couples and (2) work-related deaths are relatively  

                                                                           



infrequent.    While  arguing  that  cost  savings  are  not  a  valid  reason  to  deny  equal  



treatment,  she  concludes  that  "the  cost  of  equality  is  minimal  in  this  context."  

                                                                                        



Millennium responds by arguing that requiring marriage as a condition of eligibility for  



death benefits is permissible legislative line-drawing and by pointing out that Ranney  



recognized  the  cost  to  employers  as  a  legitimate  interest  that  we  should  consider.  

                  



Millennium does not otherwise identify how denial of benefits to same-sex couples who  

                                                                                 



are barred by law from marriage bears a substantial relationship to the statutory purposes  

                 



identified in Ranney .  



                    We  agree  with  Harris  that  the  interests  we  identified  and  discussed  in  

                                                       



Ranney were substantially similar to the interests we discussed in ACLU :  cost savings  

                                                                                



and administrative convenience, although the focus in Ranney was on administrative  



convenience.    In  Ranney  we  observed  that  the  legislature  could  have  required  an  



individualized inquiry in every workers' compensation death-benefits case but chose  



instead  to  use  marriage  as  "an  adequate  proxy  for  the  more  particularized  inquiry  

                                                                                       



concerning  whether  a  relationship  is  serious  enough  or  the  partner  is  sufficiently  

dependent to justify awarding benefits."44  

                                                                 Use of a proxy was justified because "the  



          42        AS 23.30.395(25).  



          43        AS 23.30.395(40).  



          44        Ranney , 122 P.3d at 221.  



                                                              -13-                                                           6927  


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

potentially increased precision of requiring an ad hoc decision in all cases would be so  



administratively costly that the system would be better served by using a more formal  

rule  .  .  .  for  determining  which  relationships  require  the  payment  of  benefits."45  



                                                                                       

                    Acknowledging that marriage may serve as an adequate proxy for opposite- 



                                                                                      

sex couples, Harris contends that it cannot serve as a proxy for same-sex couples because  



                                                                                      

same-sex couples are absolutely prohibited from marrying under Alaska law.  We agree  



         

with Harris that for same-sex couples marriage cannot serve as the way to determine  



                                                                           46  

                                                               

whether  their  relationships  are  "serious  enough"                          or  the  survivor  is  "sufficiently  



                                                            47  

dependent  to  justify  awarding  benefits"     and  that  an  individualized  inquiry  will  be  



                      

needed.         As  Harris  points  out,  the  statute  already  requires  the  Board  to  make  



individualized inquiries in some cases because the statute limits benefits to widows and  



                                                                                                             

widowers who are "living with or dependent for support upon" the worker at the time of  



                             48  

                                                                                                    

the  worker's  death,            and  there  are  a  number  of  Board  decisions  demonstrating  this  

point.49  

               The  Board  thus  has  the  administrative  capacity  to  make  the  type  of  factual  



determinations required to establish whether a same-sex couple's relationship should  

qualify for death benefits.50  

                                          And unlike the challenge in Ranney our decision does not  



          45       Id. (emphasis added).  



          46       Id.  



          47       Id.  



          48        AS 23.30.395(40).  



          49        See, e.g.,  Tonkovich v. Serino, Inc., AWCB Dec. No. 08-0137 (July 24,  



2008)  (finding  eligibility  for  death  benefits  because  spouses  were  separated  for  

           

"justifiable cause"); Reynolds v. GBR Equip., Inc. , AWCB Dec. No. 05-0345 (Dec. 22,  

2005) (denying death benefits to surviving ex-wife of deceased employee because she  

                                                                             

failed to show she was living with or dependent on decedent).  



          50        We leave it to the Board to consider the relevant factors for an award of  



                                                                                                            (continued...)  

                                                             -14-                                                          6927  


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

require a particularized inquiry in all cases because we do not disturb our holding that  



marriage  is  a  valid  proxy  for  those  couples  who  can  lawfully  marry.    We  therefore  



conclude that the exclusion of same-sex couples from the possibility of qualifying for  

                                                                                                       



death benefits is not substantially related to the goal of administrative efficiency.  



                    The other governmental interest that the parties discuss is cost savings.  



Permitting        surviving        partners      involved        in   an    intimate,       committed,         financially  

                                                                            



interdependent same-sex relationship to apply for workers' compensation death benefits  

                                                                                       



may increase costs.  By increasing the number of potentially eligible dependents, the  



costs to employers could increase both because the pool of people who potentially qualify  

                                                                          



for benefits may expand and because there may be more contested hearings.  But we held  

                                                                                                 



in Schmidt that "cost savings alone are not sufficient government objectives under our  

equal protection analysis."51  And we agree with Harris that the number of cases involving   



surviving same-sex partners will likely be limited:  The total number of death claims in                           

Alaska is small,52 and according to the United States Census Bureau, the percentage of  



          50        (...continued)  



death benefits to a surviving same-sex partner of a deceased worker, but we note that the  

                                                                                                    

State has promulgated regulations for its employees to use when enrolling their same-sex  

                                                                                              

partners in insurance programs.  2 Alaska Administrative Code (AAC) 38.010 (2012).  

                                                    

These regulations may provide some guidance to the Board in evaluating the evidence.  

                                                                               

Among the factors the State lists are that the couple be in an exclusive, committed, and  

intimate relationship for at least 12 months, that the couple reside together, and that they  

                                                                                                              

share financial obligations.  2 AAC 38.010(b).  



          51        State v. Schmidt, 323 P.3d 647, 663 (Alaska 2014) (quoting Herrick's Aero- 



                                                                                                   

Auto-Aqua Repair Serv. v. State, Dep't of Transp. & Pub. Facilities , 754 P.2d 1111, 1114  

(Alaska 1988)) (internal quotation marks omitted).  



          52        In  2012,  for  example,  there  were  30  workplace  deaths.    Sara  Verrelli,  



 Workplace  Deaths  in  Alaska,  ALASKA    ECON .    TRENDS  (Alaska  Dep't  of  Labor  &  

Workforce Dev., Juneau, Alaska), Dec. 2013, at 11, available at http://www.labor.alaska.  

gov/research/trends/dec13art2.pdf.  

                                                             -15-                                                          6927  


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

 same-sex couple households in Alaska in the 2010 census was less than one percent of  

 all households.53  



                    In contrast to the position advocated in Ranney , an individualized inquiry  



                                                                                                   

 will not be needed in all death-benefits cases because marriage is still an appropriate  



                                              54  

 proxy for opposite-sex couples.     Nor will allowing same-sex partners access to death  



                                                                              

 benefits make workers' compensation benefits slower or less predictable for opposite-sex  



             55 

 couples.                    

                 In short, denying same-sex couples access to death benefits under the workers'  



 compensation statute does not bear a fair and substantial relationship to the purposes of  



                                             56  

 the act as identified in Ranney .  



                    Harris provided affidavits and other documentary evidence to provide a  



                                                                                                             

 factual context for purposes of appeal, but the Board has not yet considered this evidence  



                                                                  

 because Harris was not lawfully married to Fadely at the time of Fadely's death.  We  



 therefore remand this case for further proceedings.  



          53        Martin O'Connell & Sarah Feliz, Same-sex Couple Household Statistics  



from the 2010 Census  Appendix Table 1a (U.S. Bureau of Census, Soc., Econ. & Hous.  

                                                                                      

 Statistics      Div.,     SEHSD          Working         Paper      No.      2011-26,        2011),      available        at  

 http://www.census.gov/hhes/samesex/data/decennial.html  (follow  "Detailed  Tables"  

 hyperlink under Other Technical and Analytical Reports).  



          54        Cf. Ranney v. Whitewater Eng'g, 122 P.3d 214, 221 (2005) (pointing out  

                                                                                                            

 cost of "requiring an ad hoc decision in all cases").  



          55  

                                    

                    Cf.  id.  at  220-21  (noting  that  requiring  "fact-intensive  inquiry  could  

 substantially delay the award of benefits").  



          56        As noted above, because the statutory classification in conjunction with the  



 Marriage Amendment does not survive minimum scrutiny, we do not need to reach the  

                                                                                                      

 question whether heightened scrutiny should apply or perform an analysis under federal  

                                                                               

 law.   

                                                            -16-                                                          6927  


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

V.      CONCLUSION  



                Based on the foregoing, we VACATE the decision of the Alaska Workers'   



Compensation  Appeals  Commission  denying  Harris's  claim  for  death  benefits  and  



REMAND to the Commission for further proceedings consistent with this opinion.  



                                                 -17-                                           6927
  

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