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University of Alaska v. Tumeo (3/14/97), 933 P 2d 1147
NOTICE: This opinion is subject to formal 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) 264-0607, fax (907)
THE SUPREME COURT OF THE STATE OF ALASKA
UNIVERSITY OF ALASKA, )
) Supreme Court No. S-6898
) Superior Court No.
v. ) 4FA-94-43 CI
MARK TUMEO and KATE WATTUM, ) O P I N I O N
Respondents. ) [No. 4794 - March 14, 1997]
Petition for Review from the Superior Court of the State
of Alaska, Fourth Judicial District, Fairbanks, Mary E.
Appearances: Thomas P. Owens, Jr. and Patrick J McCabe,
Owens & Turner, P.C., Anchorage, for Petitioner.
William B. Schendel, Schendel & Callahan, Fairbanks, for
Respondents. Jeffrey A. Friedman, Friedman, Rubin &
White, Anchorage, and Thomas F. Coleman, Spectrum
Institute, Los Angeles, California, for Amicus Curiae
Spectrum Institute. Allison E. Mendel, Mendel &
Huntington, Anchorage, and Suzanne Goldberg and Jon
Davidson, New York, New York, for Amici Curiae National
Lesbian and Gay Law Association, Lambda Legal Defense
and Education Fund, and National Organization for Women
Legal Defense & Education Fund.
Before: Compton, Chief Justice, Rabinowitz, Matthews,
Eastaugh, Justices, and Carpeneti, Justice pro tem.
COMPTON, Chief Justice.
Two employees of the University of Alaska requested
health insurance benefits for their domestic partners; the
University denied their requests. The question on review (EN1) is
whether that denial violates AS 18.80.220(a)(1), commonly referred
to as the Alaska Human Rights Act, which bars discrimination in
employment on the basis of marital status.
II. FACTS AND PROCEEDINGS
Mark Tumeo and Kate Wattum are employees of the
University of Alaska. Neither is married. The University provides
employer-subsidized health insurance benefits for its employees and
their "dependents." The University defines "dependent,"in part,
as an employee's "spouse (husband or wife)." In June 1993 Tumeo
requested that the University extend health insurance benefits to
his domestic partner, Bruce Anders. (EN2) With his request, Tumeo
submitted an Affidavit of Spousal Equivalency signed by him and
Anders. (EN3) Later the same month, Wattum requested health
insurance coverage for her domestic partner, Beverly McClendon.
The University denied Tumeo's and Wattum's requests for
coverage on the ground that its "health care plan does not allow
for coverage of a domestic partner, nor is there any obligation
under the plan to provide for such coverage." In accordance with
the University's established grievance procedure, Tumeo and Wattum
filed multiple grievances contesting the University's denial of
benefits. The University denied these grievances. Tumeo and
Wattum appealed to the superior court arguing, inter alia, that the
University's health benefits program discriminates on the basis of
marital status in violation of article I, sections 1 and 7 of the
Alaska Constitution and AS 18.80.220(a)(1).
The superior court concluded that "[t]he University, by
providing added health care coverage for married employees but not
for unmarried employees, is compensating married employees to a
greater extent than it compensates unmarried employees"and that
"using marital status as a classification for determining which of
its employees will receive additional compensation in the form of
third-party health coverage . . . violates state laws prohibiting
marital status discrimination." The court further concluded that
"therefore the University's current definition of 'dependent' is
The superior court outlined several possible methods by
which the University could remedy the unlawful discrimination:
The University, confronted with a ruling
from this court that its current plan violates
AS 18.80.220, would have many options. First,
it could simply refuse to provide health care
coverage for spouses. That is, it could
eliminate "spouse"from its definition of
"dependent." Second, the University could
rewrite its plan to indicate that "dependents"
include all persons for whom its employees
provide the majority of financial support.
The University could adopt Tumeo and Anders'
"Affidavit of Spousal Equivalency." The
health care plan could be rewritten to
indicate that health care coverage would be
available for all employees and for employees'
domestic partners, provided the employee and
the partner were willing to sign an affidavit
such as Tumeo and Anders' affidavit.
This court rejected the University's request for a stay pending
review. The University then adopted a policy akin to the superior
court's third option and extended benefits to employees' domestic
partners, provided the employee and partner met certain criteria.
A. The University Admits that It Discriminates on the Basis
of Marital Status.
The University does not challenge the committed nature of
Tumeo's or Wattum's relationship, nor does it challenge the good
faith or legal enforceability of Tumeo's and Wattum's financial
obligations to their respective partners. The University has
conceded that the provision of health insurance benefits to an
employee's dependents constitutes "compensation"to the employee as
that term is used in AS 18.80.220. The University does not
challenge the superior court's finding that the basis upon which it
denied the employees' benefits requests was their marital status.
Indeed, the University admits that it has discriminated against
Tumeo and Wattum on the basis of their marital status by paying
them less compensation than it pays other similarly-situated
employees. (EN5) It argues that such discrimination does not
violate the Human Rights Act. (EN6)
B. The Alaska Human Rights Act and Its Recent Amendments
The Alaska Human Rights Act, AS 18.80.200, provides:
(a) It is determined and declared as a
matter of legislative finding that
discrimination against an inhabitant of the
state because of race, religion, color,
national origin, age, sex, physical or mental
disability, marital status, changes in marital
status, pregnancy, or parenthood is a matter
of public concern and that this discrimination
not only threatens the rights and privileges
of the inhabitants of the state but also
menaces the institutions of the state and
threatens peace, order, health, safety, and
general welfare of the state and its
(b) Therefore, it is the policy of the
state and the purpose of this chapter to
eliminate and prevent discrimination in
employment, in credit and financing practices,
in places of public accommodation, in the
sale, lease, or rental of real property
because of race, religion, color, national
origin, sex, age, physical or mental
disability, marital status, changes in marital
status, pregnancy or parenthood. . . .
Alaska Statute 18.80.210 establishes that the opportunity to obtain
employment and the other necessities listed in the Human Rights Act
without discrimination is a civil right. See AS 18.80.210.
Alaska Statute 18.80.220 addresses discriminatory
employment practices. At the time this petition was filed it
(a) It is unlawful for
(1) an employer to refuse employment to a
person, or to bar a person from employment, or
to discriminate against a person in
compensation or in a term, condition, or
privilege of employment because of the
person's race, religion, color, or national
origin, or because of the person's age,
physical or mental disability, sex, marital
status, changes in marital status, pregnancy,
or parenthood when the reasonable demands of
the position do not require distinction on the
basis of age, physical or mental disability,
sex, marital status, changes in marital
status, pregnancy, or parenthood[.]
The legislature has recently amended the Human Rights Act to permit
employers to provide "different retirement and health benefits to
certain employees by differentiating between benefits provided to
employees with spouses or children and to other employees."
Preamble to HB 226. The recent amendments provide in part:
(c) Notwithstanding the prohibition
against employment discrimination on the basis
of marital status or parenthood under (a) of
(1) an employer may, without violating
this chapter, provide greater health and
retirement benefits to employees who have a
spouse or dependent children than are provided
to other employees[.]
C. The Recent Amendments Do Not Moot Review.
The recent amendments raise the threshold question of
whether the issue in this case is now moot. Generally courts will
apply the law as it exists at the time of the decision, not the law
existing at the time the case was commenced. See 5 Am. Jur. 2d
Appellate Review sec. 657 (1995); 13A Charles A. Wright, Arthur R.
Miller & Edward H. Cooper, Federal Practice and Procedure sec.
3533.6 (2d ed. 1984); United States Dep't of Justice v. Provenzano,
469 U.S. 14, 15 (1984) ("[The issue is] to be judged under the law
presently in effect."). Applying this general rule, we conclude
that the recent amendments have answered the question presented by
this case as far as the employees' claim for prospective relief is
However, we believe this case retains "its character as
a present, live controversy"for two reasons. (EN8) See Kodiak
Seafood Processors Ass'n v. State, 900 P.2d 1191, 1195 (Alaska
1995) ("A claim is moot if it has lost its character as a present,
live controversy."). First, the University may seek refunds from
Tumeo and Wattum for the payments made to and benefits conferred on
them since the superior court's ruling. See City of Pittsburgh v.
Alco Parking Corp., 417 U.S. 369, 372 n.2 (1974) (holding that a
challenge by parking lot owners to a city parking tax was not
mooted by the ordinance's subsequent amendment because tax refunds
would be due the lot owners if the Court found the challenged
ordinance unlawful); see also 5 Am. Jur. 2d Appellate Review sec.
658 (1985) ("A change in the applicable law will not render moot an
appeal challenging that law if . . . refunds must be paid if the
old statute is declared invalid.").
Second, the propriety of the superior court's attorney's
fees award saves this case from mootness. A superior court acting
as a court of appeal from the decision of an administrative agency
has the authority under Appellate Rule 508(e) to award attorney's
fees to the prevailing party. See Kenai Peninsula Borough v. Cook
Inlet Region, Inc., 807 P.2d 487, 501 (Alaska 1991). For this
court to determine which party prevailed on the issue argued before
the superior court, it must address the merits of the issue under
the pre-amendment version of the Human Rights Act. See LaMoureaux
v. Totem Ocean Trailer Express, Inc., 651 P.2d 839, 840 n.1 (Alaska
1982) ("Although we have previously stated that we will not hear a
moot case merely to determine who is the prevailing party for
purposes of awarding attorney's fees, . . . we believe that the
rule announced in those decisions is wrong and those decisions are
therefore overruled as to that point.").
D. The Discrimination the University Practices Violates the
Human Rights Act.
1. The University bears the burden of showing that the
legislature intended to allow the type of
discrimination it practices.
The University argues that the discrimination in which it
admittedly has engaged is permissible, notwithstanding the clear
language of the Human Rights Act, because the legislature did not
intend to prohibit such discrimination. It points to several
alleged indicators of such a contrary legislative intent and urges
the court to reject, on the basis of these arguments, the superior
court's "rigid application of the 'plain meaning' rule."
It is true that there is no longer a plain meaning rule
as such in Alaska law. Where a statute's meaning appears clear and
unambiguous, however, the party asserting a different meaning bears
a correspondingly heavy burden of demonstrating contrary
legislative intent. Lagos v. City and Borough of Sitka, 823 P.2d
641, 643 (Alaska 1991); University of Alaska v. Geistauts, 666 P.2d
424, 428 n.5 (Alaska 1983). The clear and unambiguous language of
the Human Rights Act forbids discrimination in employment on the
basis of marital status.
The University's argument that the legislature
nonetheless intended to allow it to engage in this very type of
discrimination would be questionable even were it not for our prior
decisions on marital status discrimination. It is all the more
questionable when considered in the light of the high priority this
court has given the Human Rights Act, and the purposes it serves,
in those decisions. While our prior decisions on marital status
foreordain our conclusion with respect to the merits of the
University's argument, nonetheless we are constrained to reiterate
both the significance we attach to the Human Rights Act and our
reluctance to construe limitations on its power or scope.
We consistently have held that the Human Rights Act
should be broadly construed to further the goal of eradication of
discrimination. See Thomas v. Anchorage Tel. Util., 741 P.2d 618,
629 (Alaska 1987); Alaska USA Fed. Credit Union v. Fridriksson, 642
P.2d 804, 806 (Alaska 1982); McLean v. State, 583 P.2d 867, 869
(Alaska 1978) ("In view of the strong statement of purpose in
enacting AS 18.80, and its avowed determination to protect the
civil rights of all Alaska citizens, we believe that the
legislature intended to put as many 'teeth' into this law as
possible."(quoting Loomis Elec. Protection, Inc. v. Schaefer, 549
P.2d 1341, 1343 (Alaska 1976))).
Correspondingly, we have construed the statute strictly
against those seeking to utilize or create an exception or
limitation of it. See McLean, 583 P.2d at 869 ("Since we have held
that the legislature intended to put as many 'teeth' into the law
as possible, we shall construe the statutory exception strictly
against the one who seeks to utilize it."); see also Simpson v.
Alaska State Comm'n for Human Rights Supp. 552, 555 (D. Alaska
1976), aff'd 608 F.2d 1171 (1979) (refusing to provide an upper
limit of sixty-five years on age discrimination protection of the
Human Rights Act: "It is  against this type of policy that
statutes such as Alaska's were enacted and the court will not
frustrate the purpose of the statute by adopting an implied
interpretation which reflects the state of mind that initially
impelled legislative action.").
In the three cases we have decided interpreting the
marital status discrimination provision of the Human Rights Act,
Foreman v. Anchorage Equal Rights Comm'n, 779 P.2d 1199 (Alaska
1989), Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274
(Alaska 1994), and Muller v. BP Exploration Inc., 923 P.2d 783
(1996), we have given effect to the plain language of the marital
status discrimination provisions of the Act. (EN9)
In Foreman, an unmarried mother attempted to rent from
the Foremans an apartment for herself, her child, and the child's
father. Foreman, 779 P.2d at 1200. The Foremans refused to rent
to the woman because she and her child's father were not married.
Id. We held that the Foreman's refusal was illegal:
We conclude that state and municipal
prohibitions against discrimination based on
marital status protect the rights of unmarried
couples. The Foremans would have rented the
apartment to Hohman, Kiefer and the infant had
Hohman and Kiefer been married; the Foremans
refused to rent the apartment only after they
learned that Hohman and Kiefer were not
married. This constitutes unlawful
discrimination based on marital status.
Id. at 1203. In so holding, we rejected Foreman's contention that
because cohabitation was a criminal offense at the time the Human
Rights Act was amended to include marital status, the marital
status provision of the Human Rights Act was not intended to
encompass cohabiting couples. Id. at 1202.
In Swanner, we reaffirmed our decision in Foreman.
Swanner had refused to rent to several individuals because each
individual intended to live with a person of the opposite sex to
whom the individual was not married. Swanner, 874 P.2d at 276-77.
Swanner argued that he was not discriminating on the basis of
marital status, but on the basis of conduct, namely cohabitation.
Id. at 278 n.4. We rejected Swanner's conduct/status distinction:
Swanner cannot reasonably claim that he does
not rent or show property to cohabiting
couples based on their conduct (living
together outside of marriage) and not their
marital status when their marital status
(unmarried) is what makes their conduct
immoral in his opinion. The undisputed facts
demonstrate that Swanner would have rented to
the prospective tenants if they were married.
Swanner's argument that he discriminated
against the prospective tenants based on their
conduct and not their marital status is
Id. at 278 n.4.
In Muller, we upheld a company's anti-nepotism policy.
We emphasized that the marital status anti-discrimination clause in
AS 18.80.220(a)(1) prevents employers from discriminating based on
the marital status of their employees. We concluded that, "in
accordance with common usage, the plain meaning of the term
'marital status' is the condition of being married or unmarried."
Id. at 788. We further concluded that the legislature did not
intend the term to include the identity of one's spouse. Thus we
held that AS 18.80.220 is applicable only to employers who
discriminate based on the status of being married. In adopting
this interpretation, we opined that "the plain meaning of the term
'marital status' achieves the goal of . . . eradicating
discrimination against a person based on the condition of being
married or unmarried, and thus best serves the purposes of the
[Alaska Human Rights Act]." Id. at 791. Muller's holding is
relevant to the extent that it reiterates that the type of
discrimination the University concedes it practices in its employee
benefits policy is not permissible.
2. Alaska Statute 14.18.020 does not evince an intent
to allow discrimination.
In its opening brief the University argues that, because
there is nothing either in "the express statement of purpose of the
statute or the legislative history that would indicate the Human
Rights Act is meant to apply to employer-provided health care
benefits,"AS 14.18.020, which was enacted after the Human Rights
Act and does specifically mention employee benefits, supersedes the
Human Rights Act. Alaska Statute 14.18.020 provides:
The board [of education], the Board of
Regents, and each school board in the state
(1) allow no difference in conditions of
employment, including but not limited to
hiring practices, credential requirements,
leaves of absence, hours of employment, pay,
employee benefits, and assignment of
instructional and noninstructional duties on
the basis of sex or race . . . . (EN10)
(Emphasis added.) Another section of chapter 18, AS 14.18.110,
provides that chapter 18 "is supplementary and does not supersede
existing laws relating to unlawful discrimination based on sex or
race." AS 14.18.110. From this, the University argues:
While the legislature decreed that A.S. 14.18
does not supersede existing legislation
banning discrimination on the basis of sex and
race, it did not decree that it does not
supersede existing legislation banning
discrimination based on marital status or
parenthood. AS 14.18.020 is clear and
compelling evidence that the legislature
intended anti-discrimination laws applicable
to employee benefits to extend only to
protection based on sex and race, and not on
marital status or parenthood.
In its reply brief and at argument, the University
disavows its supersession claim. It argues that AS 14.18.020
should control the Human Rights Act, and that the Act should be
interpreted "in a way that does not impose marital status
provisions on public health insurance plans."
The line of reasoning the University follows leads to the
untenable conclusion that it could discriminate in the provision of
employee benefits not only on the basis of an employee's marital
status, but also on the basis of an employee's age, religion,
national origin, or disability, since these characteristics are not
specifically protected under AS 14.18.020. We believe the
legislature intended AS 14.18 as an expanded measure of protection
with an additional remedial option rather than as a limitation of
educational employees' civil rights. See AS 14.18.100(a)
(providing that complaints alleging violations of AS 14.18 can be
filed with the Board of Education); 4 AAC 6.510(c) ("In addition to
the requirements of AS 14.18 and this section, the requirements of
AS 18.80.220 also apply to hiring practices in public education.").
3. Alaska Statute 39.30.090 does not evince an intent
to allow discrimination.
The University claims that the legislature's intent to
allow discrimination against unmarried employees with respect to
health benefits is shown in the statutes governing the purchase of
insurance for state employees. Alaska Statute 39.30.090 provides:
(a) The Department of Administration may
obtain a policy or policies of group insurance
covering state employees, persons entitled to
coverage under AS 14.25.168, AS 22.25.090,
AS 39.35.535 or former AS 39.37.145, employees
of other participating governmental units, or
persons entitled to coverage under
AS 23.15.136, subject to the following
. . . .
(2) Each eligible employee of the state,
the spouse and the unmarried children chiefly
dependent on the eligible employee for
support, and each eligible employee of another
participating governmental unit shall be
covered by the group policy, unless exempt
under regulations adopted by the commissioner
Alaska Statute 14.25.168, the section implementing the above
provision for the teachers retirement system, (EN11) provides:
(a) Except as provided in (c) of this
section, the following persons are entitled to
major medical insurance coverage if a benefit
recipient elects coverage under this section:
(1) a person receiving a monthly benefit
from the system;
(2) the spouse of a person receiving a
monthly benefit from the system;
(3) a natural or adopted child of a
person receiving a monthly benefit, if the
child is a dependent child as defined in AS
The University argues that these statutes not only
"require the department [of administration] to provide insurance to
employees, their spouses, and their dependent children"but "also
presumptively prohibit the department from providing insurance to
anyone else, such as domestic partners." According to the
University, this presumption arises under the "accepted rule of
statutory construction that to include specific terms presumptively
excludes those which are not enumerated." The University argues
that domestic partners are not among those specifically "entitled
to"benefits, therefore they cannot receive them without some other
grant of authority from the legislature.
The University finds additional support for its argument
in AS 14.25.168(c), which disallows insurance coverage to a person
receiving payment from the system under a domestic relations order
except under certain circumstances. (EN12) According to the
University, this provision makes it "abundantly clear that the list
of persons entitled to coverage is meant to be exhaustive. This is
because the legislature has seen fit to clarify who is not entitled
to coverage under this section."(EN13) The University argues the
statutes "presumptively exclude from coverage those not enumerated.
[They] make it clear that spouses are covered and 'domestic
partners' are not. In short, the legislature has mandated
discrimination in the provision of public employee health insurance
benefits on the basis of marital status."
Tumeo and Wattum argue that the statutes the University
relies on simply compel certain coverage, without precluding more
expansive coverage: "The absence of any express provision for
benefits for unmarried couples in the various public employee
benefit statutes does not prevent the administrators of those
benefits plans from providing the same benefits to unmarried
couples." They argue that the University's interpretation of the
statutes, even if correct, is not relevant because (1) the
University has not purchased an insurance policy pursuant to
AS 14.25.168(a), choosing instead to self-insure for the health
benefits of its employees, and (2) the Optional University
Retirement System of which Tumeo is a member has no spouse-only
Absent some clear expression from the legislature, we are
unwilling to conclude that the legislature intended AS 14.18 to
limit the objectives of the Human Rights Act when it enacted
guidelines for the Department of Administration to follow in
4. Other statutes cited by the University provide no
The University argues that "[t]he Superior Court's
literal reading that the Human Rights Act prohibits all forms of
discrimination in employment based upon marital status is also
undermined by the fact that the legislature has provided many
instances of legal or even mandatory discrimination."The
University has appended a chart summarizing 183 statutes which it
claims "either allow or require discrimination on the basis of
marital status." The argument lacks merit. The statutes cited
include the word "spouse,"or "husband,"or "wife,"or "married."
They do not refer to marital status discrimination in the areas
where the Human Rights Act applies. (EN14)
5. Silence is inconclusive.
According to the University, "[o]ne of the most
compelling indicia of the legislative intent with regard to the
issue of employer-sponsored health care benefits for spouses and
children of employees is the deafening silence that has accompanied
the subject for nearly twenty years." In the University's view,
the fact that "no agency of any of the three branches of state
government has ever interpreted it to apply to public employees
health insurance plans"since the adoption of the ban on marital
status discrimination is "compelling evidence"that provision
should not apply in this arena.
Silence can be evidence of intent; however, it is
difficult to decipher what is meant when nothing has been said.
See Brecht v. Abrahamson, 113 S. Ct. 1710, 1719 (1993) ("As a
general matter, we are 'reluctant to draw inferences from Congress'
failure to act.'"(quoting Schneidewind v. ANR Pipeline Co., 485
U.S. 293, 306 (1988))); Public Defender Agency v. Superior Court,
534 P.2d 947, 952 (Alaska 1975) ("Legislative inaction may be
evidence of intent, although it is not always a reliable guide.").
With respect to the failure of other executive
departments to afford health care benefits to unmarried domestic
partners of their employees, silence says nothing about what
AS 18.80.220(a)(1) may require as executive agencies are not
empowered to alter the meaning of a statute. With respect to the
inaction of the legislature, we have ruled that a legislature is
not institutionally competent to issue opinions as to what a
statute passed by an earlier legislature meant. Hillman v.
Nationwide, 758 P.2d 1248, 1252-53 (Alaska 1988). Here the
argument is that subsequent legislatures have by silence expressed
their views on what the 1975 legislature (which enacted the bar to
marital status discrimination) intended. If a subsequent
legislature's actions lack interpretative significance, it follows
that its inactions do as well.
The University has admitted that it discriminates on the
basis of marital status in the provision of health care benefits.
The clear language of the Human Rights Act, before amendment,
forbade such discrimination. We conclude that the University has
not met its burden of demonstrating a legislative intent contrary
to the Act's language. We therefore AFFIRM the decision of the
superior court and REMAND the case for further proceedings
consistent with this opinion.
1. The University filed this case as an appeal of right. See Appellate Rule 202(a).
However, the superior court had remanded the case to the University for further proceedings,
and thus there was no final judgment from which an appeal could be taken. City and Borough
of Juneau v. Thibodeau, 595 P.2d 626 (Alaska 1979). The lack of a final judgment was noted
during consideration of the University's motion for stay of proceedings. Rather than dismissing
the appeal under the Thibodeau doctrine, this court, sua sponte, elected to treat the premature
appeal as a petition for review. Appellate Rule 402(a). We granted the petition.
2. Both Tumeo and his partner are male; both Wattum and her partner are female. The
parties have argued throughout this litigation that this case involves the benefits provision for
unmarried couples generally, and applies with equal force to same-sex and heterosexual couples.
We decide only the legal issues raised by the litigants.
3. The affidavit provides in part:
We[,] Mark A. Tumeo and Bruce W. Anders[,] certify that we are
spousal equivalents in accordance with the following criteria and
eligible for benefits coverage under the policies of the Universit
y of Alaska.
. . . .
1. We are each other's sole spousal equivalent and intend to
stay so indefinitely.
2. We are of the same sex and neither one of us is married to
3. We are at least eighteen (18) years of age and mentally
competent to consent to contract.
4. We are not related by blood to a degree of closeness that
would prohibit legal marriage in the state in which we
5. We reside together in the same residence and intend to do
6. We are jointly responsible for each other's common
welfare and financial obligations.
. . . .
We agree to notify the University of Alaska Benefits Office if
there is any change in our status as spousal equivalents as atteste
d to in this Affidavit which would make us no longer eligible fo
r benefits (for example, a change in joint-residence or if we are no
longer each other's sole spousal equivalent). . . .
4. Wattum did not submit an affidavit. She did offer to supply the University with evide
nce of the committed nature of her relationship with McClendon. The University did not
respond to her offer.
5. In its reply brief the University said:
The University agrees with Tumeo that this denial of benefits to
unmarried couples evinces a legislative intent to discriminate
against unmarried couples that conflicts with what Tumeo believes
to be the plain meaning of the Human Rights Act.
It also said:
Providing unequal benefits because spouses and dependent children
are covered, and some employees do not have spouses or
dependent children, is blatant discrimination based on marital
status and parenthood, and the University has never argued
otherwise. Paying somebody who works in Bethel more than
somebody who does the same job in Anchorage is also blatant
At oral argument the University explicitly stated that it discriminates in the provision of
health care benefits to the dependents of University employees on the basis of marital status.
The University's concessions often appear to be made for rhetorical purposes. For
example, as noted above, the University says that it is discriminating against childless employees
by supplying employees who do have children with health insurance that covers their children.
The University does not discuss the meaning of the word "discriminate"as it is used in
AS 18.80.220(a)(1). Tumeo and Wattum suggest that discrimination encompasses the
"requirement that discrimination victims be 'similarly situated' to others treated more favorably
. . . ." In their view they are similarly situated to married couples because they are bound by
contract to support each other. The University argues that Tumeo and Wattum are not similarly
situated because the state or medical providers may not assert claims against them for treatment
provided to their partners based on their mutual contractual duties, whereas such claims could
be asserted against married people. However, the University does not argue that there is no
status discrimination based on this distinction.
Given the issues as presented by the University, we have no occasion to attempt to
comprehensively define the meaning of the term "discriminate"as used in the statute. We
observe, however, that Tumeo and Wattum seem to be correct in suggesting that there is a
similarly situated requirement inherent in the concept of discrimination. Based on the
University's concession as to the existence of discrimination, however, we have no occasion to
determine whether Tumeo and Wattum are in fact similarly situated to married persons with
respect to their obligations to their partners.
6. Whether the University's policy violates AS 18.80.220 is a question of statutory
interpretation to which the court applies its independent judgment. Alaska State Comm'n For
Human Rights v. State, Dep't of Admin., 796 P.2d 458, 459-60 (Alaska 1990); Wien Air
Alaska, Inc. v. Department of Revenue, 647 P.2d 1087, 1090 (Alaska 1982). On questions of
law, the duty of this court is to adopt the rule of law which is most persuasive in light of
precedent, reason and policy. Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1978).
7. The parties appear to agree on this point. The employees acknowledge that "the pass
age of HB 226 does shift the focus of arguments regarding prospective relief away from the
construction of the Human Rights Act that formed the basis of the Superior Court's ruling."
The University responds that "[t]he issues which remain are purely matters of constitutional
8. The parties appear to agree on this point as well. Tumeo and Wattum state "[t]he
enactment of HB 226 does not moot this appeal." The University responds "[t]he University
agrees with Tumeo that passage of this bill does not automatically make the statutory issue raised
in the Petition for Review moot."
9. The Human Rights Act deals specifically with discrimination in the housing market in
10. As enacted in 1981, AS 14.18.020 barred discrimination only on the basis of sex; it w
as amended in 1988 to include race.
11. The other implementing provisions listed in AS 39.30.090 contain nearly identical
12. Alaska Statute 14.25.168(c) provides:
Receipt under a qualified domestic relations order of a monthly
benefit from the system does not entitle a person or the person's
spouse or child to insurance coverage under (a) of this section.
However, a member's former spouse who receives a monthly
benefit under a qualified domestic relations order is entitled to
receive major medical insurance coverage if the former spouse
(1) elects the coverage within 60 days after the first
monthly benefit paid under the order is mailed first class or
otherwise delivered; and
(2) pays the premium established by the administrator for
13. The University finds further support for its argument that the legislature intended to allow
marital status discrimination in the provision of health insurance in AS 14.25's definition of
"dependent child"as "an unmarried child of a member . . . who is dependent on the member
for support . . . ." AS 14.25.220(13) (emphasis added). From this, the University concludes
"that marital status is a factor expressly and unequivocally written into the eligibility criteria.
. . . If the Human Rights Act truly prohibits marital status discrimination in the provision of
public employee health insurance, then discrimination between married and unmarried dependent
children would be illegal."(emphasis in original). This argument is unpersuasive in the abse
nce of a demonstration that unmarried and married children are similarly situated with respec
t to dependency.
14. The University argues: "Noteworthy in this chart is the fact that, where the legislature
intended a 'family' to consist of more than a legal spouse and children, it specifically said
so. . . . Likewise, had the legislature intended employees' health care benefits to be extended
to the modern equivalent of family members, it could have used the same or a similar
definition." This argument is not relevant to the issue at hand. Neither the Human Rights Act,
nor AS 14.18.020, nor any other statutory provision cited in the body of the University's bri
ef includes a definition of "family"nor does the interpretation of these provisions turn on the
definition of "family."