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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Gerald Markham v Kodiak Island Borough Board of Equalization, Gerald Markham v Kodiak Island Borough Board of Equalization (5/24/2019) sp-7367

Gerald Markham v Kodiak Island Borough Board of Equalization, Gerald Markham v Kodiak Island Borough Board of Equalization (5/24/2019) sp-7367

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

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



                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  

GERALD  MARKHAM,                                                 )  

                                                                 )     Supreme  Court  Nos.  S-15853/16663  

                              Appellant,                         )  


                                                                 )     Superior Court Nos. 3KO-13-00471 CI/  


          v.                                                     )     3KO-14-00331 CI  



KODIAK ISLAND BOROUGH BOARD )                                                             

                                                                       O P I N I O N  


OF EQUALIZATION,                                                 )  


                                                                 )    No. 7367 - May 24, 2019  

                              Appellee.                          )  



                    Appeal in File No. S-15853 from the Superior Court of the  


                    State  of  Alaska,  Third  Judicial  District,  Kodiak,  Pat  L.  


                    Douglass,  Judge.  Appeal  in  File  No.  S-16663  from  the  


                    Superior Court of the State of Alaska, Third Judicial District,  


                    Kodiak, Steve W. Cole, Judge.  


                    Appearances:             Gerald  W.  Markham,  Kodiak,  Appellant.  


                    Joseph N. Levesque and Shane E. Levesque, Levesque Law  


                    Group, LLC, Anchorage, for Appellee.  


                    Before:  Winfree, Maassen,  Stowers, and Carney, Justices.  


                    [Bolger, Chief Justice, not participating.]  


                    CARNEY, Justice.  



                    In 2013 and 2014 attorney Gerald Markham applied for a senior citizen tax  


exemption on his residential property  in Kodiak.   The Borough  assessor denied the  


applications  due  to  Markham's  prolonged  absences  from Alaska.                                       When  given  the  

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

opportunity   to   prove   his   absences   were   allowed   under   the   applicable   ordinance,  

Markham refused to provide corroborating documentation.                                                                                                        He appealed the denials to                                        

the Borough BoardofEqualization,                                                              which affirmed thedenials. He                                                    appealed the Board's  

decisions to the superior court. The superior court dismissed the 2013 appeal for failure                                                                                                                            

to prosecute, denied the 2014 appeal on the merits, and awarded attorney's fees to the                                                                                                                                        

Borough.   Markham appeals.                                                      We affirm the superior court's 2013 dismissal and the                                                                                        

Board's 2014 denial on the merits, but vacate the superior court's award of attorney's                                                                                                                     

fees and remand for further findings.                                      

II.               FACTS AND PROCEEDINGS                   

                  A.                KodiakIslandBorough'sProperty                                                                   TaxExemptionForSeniorCitizens                                               

                                    The Alaska legislature has enacted a mandatory property tax exemption for                                                                                                                  

                                                                                  1  This exemption provides that "real property owned and  

residents who are older than 65.                                                                                                                                                                                             

occupied as the primary residence and permanent place of abode by a resident who  


is . . . 65 years of age or older . . . is exempt from taxation on the first $150,000 of the  


assessed value of the real property."2                                                                   The statute allows a municipality to determine  


eligibility  for  the  exemption  by  requiring  that  an  individual  meet  the  eligibility  


requirements of the Permanent Fund Dividend (PFD) program.3  

                                                                                                                                                                                   The Kodiak Island  


Borough passed an ordinance incorporating the PFD eligibility criteria into its eligibility  


criteria for the property tax exemption.4  


                  1                AS 29.45.030(e).   

                  2                Id.  



                                   AS 29.45.030(f).  



                                   See former Kodiak Island Borough Code (KIBC) 3.35.080(D).  

                                                                                                               -2-                                                                                                       7367

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                       An individual applying for a PFD who is not physically present in Alaska                                           


during the qualifying year must prove that the absence was allowed by statute.                                                           Alaska  


Statute 43.23.008(a) lists the allowable absences, including:  providing medical care to  


certain family members "with a critical life-threatening illness" who must travel out of  

                                                                               6 "accompanying another eligibleresident  



who is absent for a reason permitted [by the statute];"7  and "for any reason consistent  


with the individual's intent to remain a state resident, provided the absence or cumulative  


absences do not exceed . . . 45 days in addition to any absence or cumulative absences"  


claimed under the statute.8  


                       Gerald Markham has been an attorney since 1972.   In 2013 and 2014,  


Markham - then over the age of 65 - applied for a property tax exemption from the  


Kodiak Island Borough for a home he owns in the Borough. Markhamalso owns a home  


in Anchorage, two homes in Washington - one of which has been Markham's contact  


address throughout this litigation - and a home in Arizona.  


                       On his 2013 application Markham noted that the last time he received a  


PFD was in 2004.  On his 2014 application he noted that he did not qualify for the PFD  


and did not intend to apply for it.  The Borough assessor denied the 2013 application  


because Markham had not provided "persuasive evidence" that, even though he had not  


applied for a PFD, he still met its eligibility criteria and would therefore qualify for the  


tax exemption.  The denial letter invited him to provide additional documentation if he  


            5          AS  43.23.005(a)(6).  

            6          AS  43.23.008(a)(6).  

            7          AS  43.23.008(a)(13).  

            8          AS   43.23.008(a)(17)(C).     This   provision   does   not   apply   to   military  

absences,  which  receive  different  treatment.   See  AS  43.23.008(a)(3),  (a)(17)(A).  

                                                                        -3-                                                                  7367

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

wished to have the decision reconsidered.                                                                                                                In 2014 the assessor again offered him the                                                                                                      

opportunity to provide additional documentation to prove his eligibility. The 2014 letter                                                                                                                                                                                                          

did not explicitly deny Markham's application, but reminded him of the need to satisfy                                                                                                                                                                                                       

the PFD'seligibility                                                    requirements. Each                                                     letter enclosed a"PFDEligibility                                                                                    Supplemental  

Questionnaire" and instructions that if he completed it and satisfied the criteria, the                                                                                                                                                                                                                  

assessor's office would reconsider the denial.                                                                                                                       

                                                Markhamreturnedthe2013supplemental                                                                                                               questionnaire, notinghehadbeen                                                                      

absent from Alaska for approximately ten months in 2012:                                                                                                                                                           August 2011 through June                                                         

2012;   August   2012   through   December   9,   2012;   and   December  21,  2012  through  

"present" (February 25, 2013).                                                                                   He claimed that all three time periods were allowable                                                                                                           

absences because he "[a]ccompanied                                                                                                        an   eligible Alaska [r]esident as the resident's                                                                                     

spouse," "[v]acationed," "[c]ared for a parent, spouse, sibling, child, or stepchild with  

a critical life-threatening                                                                  illness that required                                                        the ill individual to leave Alaska for                                                                                         

treatment," and left the state for "[o]ther reasons, including business."                                                                                                                                                                                     Markham also   

included a 12-page letter outlining why he believed he was an Alaska resident, but he did                                                                                                                                                                                                                 

not include any documentation of the reasons for his absences.                                                                                                                                                                              The assessor again                                  


denied his application, and he appealed to the Borough's Board of Equalization.                                                                                                                                                                                                                    

                                                Markhamasked to attend his appeal hearing before the Board by telephone.  


The Board denied his request because the Borough Code did not permit it.10                                                                                                                                                                                                        Markham  


therefore appointed another Kodiak resident to appear as his representative.11                                                                                                                                                                                                                    After  


                        9                       See  KIBC 03.35.050(A)(3) (discussing Board of Equalization's role), (C)                                                                                                                                                                                 

(governing appeals to Board of Equalization).                                                                    

                        10                      See  KIBC 3.35.050(C)(4)  (requiring  parties  or  their  representatives  to  


appear at hearing in person).  


                        11                      See KIBC 3.35.050(C)(1) (allowing authorized representatives to appear  



                                                                                                                                                      -4-                                                                                                                                          7367

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hearing from the representative, considering Markham's written materials, and noting                                                                                                                                                                            

Markham's failure to provide supporting documentation for his absences, the Board                                                                                                                                                                                

affirmed the assessor's denial.                                                                    

                                           Markham   also   returned   the   2014   supplemental   questionnaire,   listing  

absences totaling approximately 279 days between February and June 2013 and from                                                                                                                                                                                     

August2013                                through mid-February 2014. Heagainclaimed                                                                                                          hisabsences                             wereallowable   

because they were for "continuous medical treatment," "[v]acation[]," "car[ing] for a                                                                                                                                                                                            

parent,   spouse,   sibling,   child,   or   stepchild   with   critical   life-threatening   illness   that  

required the ill individual to leave Alaska for treatment," and "[o]ther reasons, including                                                                                                                                                            

business."  He emailed the assessor declining to provide documentation, asserting that                                                                                                                                                    

it was confidential and he was concerned it would be subject to public disclosure.                                                                                                                                                                                     The  

assessor again denied the application; Markham again appealed to the Board.                                                                                                                                                                               

                                           Markham requested to appear at the Board hearing by telephone and was                                                                                                                                                         

                                                                                                                                      12      Markham then sent another representative  

again denied based on the Borough Code.                                                                                                                                                                                                 

to appear on his behalf to the hearing.  The Board affirmed the assessor's denial.  


                      B.                   2013 Superior Court Proceedings  


                                           In June 2013 Markhamappealed the Board's denial of his 2013 application  


in the Anchorage superior court.  His statement of points on appeal claimed that the  


Board abused its discretion by applying the PFD eligibility criteria to him when he  


alleged that the Borough failed to adopt procedures for applying the PFD eligibility  


                      11                   (...continued)  


on behalf of appellants).  

                      12                   KIBC 3.35.050(C)(4).  


                                                                                                                                      -5-                                                                                                                             7367

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


criteria as required by AS 29.45.030(f);                                                                                                                                                                    that the Board therefore did not have authority                                                                                                                                         

to hear his appeal or require him to satisfy the PFD eligibility criteria; that the Board                                                                                                                                                                                                                                                                                                                        

violated his due process rights; that AS 29.45.030(f) violated his constitutional right to                                                                                                                                                                                                                                                                                                                                             

 equal protection; and that AS 29.45.030(f) violated his constitutional right to travel.                                                                                                                                                                                                                                                                                                                                                

                                                                   The Board moved to change venue, arguing that Kodiak was the proper                                                                                                                                                                                                                                                                         

venue.   Markham opposed the motion, but the court granted the motion in November                                                                                                                                                                                                                                                                                                          

2013, changing venue to Kodiak.                                                                                                                                          

                                                                   On July 11, 2014, the Kodiak superior court gave Markham an August 11                                                                                                                                                                                                                                                                                            

deadline   to   file   his   opening   brief.     Prior   to   and  shortly   after   the   change   in   venue,  

Markham filed a series of documents - each opposed by the Board - seeking to                                                                                                                                                                                                                                                                                                                                                         

 supplement the record and opposing the Board's motion for change of venue and motion                                                                                                                                                                                                                                                                                                                         

to stay.                               Among the documents Markham filed was a "Petition for Reconsideration of                                                                                                                                                                                                                                                                                                                       

February   10   and   18,   2014   Orders   In   Light   of   Intervening   Alaska   Supreme   Court  

Decision."   In the conclusion of his petition Markham sought "a stay of this court's                                                                                                                                                                                                                                                                                                                        

briefing order" until he could review the Board's records and move to supplement the                                                                                                                                                                                                                                                                                                                                             

record on appeal.                                                                         The Board opposed the petition, noting that it did not comply with                                                                                                                                                                                                                                                              

 appellate rules, but did not address the request for stay.                                                                                                                                                                                                                             The superior court denied the                                                                                                            

petition in late September, but likewise did not address Markham's request for stay.                                                                                                                                                                                                                                                                                                                                                   

                                                                   The Board moved to dismiss Markham's appeal on October 23.                                                                                                                                                                                                                                                                            It cited   

Appellate Rules 612, 503, and 511.5, and pointed out that Markham's brief was more                                                                                                                                                                                                                                                                                                                                    

than 60 days delinquent.                                                                                                    Markham opposed the motion, claiming that he had requested                                                                                                                                                                                                           

 a stay and that the court's September 29 order denying his petition "[had] not come to      

his   immediate   attention"   because   it   was   mailed   to   his   Kodiak   address,   not   his  



                                                                   See AS 29.45.030(f) ("Each municipality shall, by ordinance, establish  


procedures and deadlines for filing the application.").  

                                                                                                                                                                                                                  -6-                                                                                                                                                                                                    7367  

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

Washington address where he was residing and which he had listed with the court as his                                                                                                                                                                                   

contact address. The court denied the motion to dismiss, explaining that before the court                                                                                                                                                                         

could dismiss an appeal for failure to comply with the briefing schedule, the court must                                                                                                                                                                           

inform the appellant of the pending dismissal and allow an additional 14 days to file the                                                                                                                                                                                



                                          The court gave Markham an additional 14 days from November 17 to file  


his brief.  Markham mailed his brief on December 1.  On December 8, 2014, the court  


dismissed the appeal because it had not received Markham's brief within the allotted 14  




                                          Markham moved for reconsideration, arguing that his brief was timely  


because Appellate Rule 502(d) recognizes the date of mailing as the date of filing.  The  


Board responded that Markham's brief was due on December 1, and that Appellate Rule  


602(j) "unambiguously" required him to file the brief at the Kodiak superior court on or  


                                                               15      Markham replied that he had relied on an " 'older' set of Alaska  

before the due date.                                                                                                                                                                                                                                        


Court Rules," which predated the amendment of Appellate Rule 602(j).  He also argued  


that he acted reasonably, that there was no prejudice to the Board in accepting his late- 


                     14                   Alaska   R.   App.   P.   606(a),   511.5(a).    We   note   that   Alaska   Rules   of  

Appellate Procedure 511.5(a) and 511.5(c) appear to be at odds.                                                                                                                                             Rule 511.5(a) entitles                         

an appellant to an additional 14-day "grace period," while Rule 511.5(c) allows the court                                                                                                                                                                         

to dismiss an appeal for failure to comply with the rules (i.e., failure to timely file a                                                                                                                                                                                     

brief), regardless of whether prior notice has been given.                                                                                                                          In  Cowitz v. Alaska Workers'                                    

 Compensation Board                                                  , we noted that "[t]here is no logical way to reconcile these two                                                                                                                                

subsections," but that if Rule 511.5(a) granted each appellant a 14-day grace period, then                                                                                                                                                                           

the 30-day brief filing deadline would be meaningless.                                                                                                                                 721 P.2d 635, 637 (Alaska                                         

 1986).   Accordingly the court was not                                                                                 required  to grant the 14-day extension but did so                                                                                                 

in its discretion.     

                     15                   See Alaska R. App. P. 602(j) ("Documents mailed to the superior court will  


be deemed filed on the date of receipt by the clerk.").  


                                                                                                                                     -7-                                                                                                                           7367

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

filed brief, and that he had shown just cause.  The superior court denied the motion to  


reconsider.  The court's order stated that the case was clearly governed by Appellate  


Rule  602(j)  and  Markham's  brief  was  therefore  untimely.                                  It  rejected  Markham's  


argument that the Board had suffered no prejudice, found that there was no justification  


for his late filing, and found that he "continuously flouted the Rules of Procedure during  


his appeal."  The court then invited the Board to file a proposed bill of costs.  


                    The  Board  requested  monetary  sanctions  or  attorney's  fees  totaling  


$32,551.65.   Markham opposed  the motion,  arguing that he was a "public interest  


constitutional litigant."              In  March  2015  the  court  awarded  the  Board  $7,438.93  in  


attorney's fees and costs.  


                    Markham appealed the dismissal and attorney's fees and costs award.  


          C.        2014 Superior Court Proceedings  


                    In December 2014 Markham appealed the Board's denial  of his 2014  


application to the Kodiak superior court. He listed the same grounds as his 2013 appeal,  


adding that the assessor should have been disqualified due to bias and that the Borough  


ordinances were void because they exceeded the authority granted by AS 29.45.030. He  


moved to supplement the record to include the entire record from the 2013 proceedings  


and an affidavit from his representative at the hearing.  The court allowed only a few  


documents to which the Board did not object.  


                    The superior court heard oral argument in August 2016 and denied the  


appeal in February 2017. The court found that the exemption was constitutional both on  


its face and as applied to Markham and that the Board had not violated his due process  


rights.  In July the court amended its order to clarify the standards of review and make  


explicit findings of the substantial evidence that supported the Board's decision.  The  


Board requested additional time to file a motion for attorney's fees and costs, but the  


                                                                -8-                                                         7367

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

superior court stayed the issue of attorney's fees and costs pending the resolution of                                                       

Markham's 2013 appeal.                     

                      Markham appealed.   

III.       STANDARD OF REVIEW              

                      "When the superior court is acting as an intermediate appellate court, we  


independently  review   the   merits   of   the   underlying   administrative   decision."                                                 "A  


constitutional issue presents a question of law which we review de novo, and to which  



we apply our independent judgment."                              In using our independent judgment, "[w]e adopt  



the rule of law that is most persuasive in light of precedent, reason, and policy."                                                       We  


review a superior court's dismissal of an administrative appeal for failure to prosecute  



                                                                       We will find a superior court's decision to  

under the abuse of discretion standard. 


dismiss an appeal under Appellate Rule 511.5 was an abuse of discretion if the decision  


is "arbitrary, capricious, manifestly unreasonable, or . . . stem[s] from an improper  

              20  "[W]e review de novo whether the superior court correctly applied the law  


in awarding attorney's fees."21  


           16         Heller  v.  State,  314  P.3d  69,  72  (Alaska  2013);  see  also  Griswold  v.  Homer  

City  Council,  310  P.3d  938,  940  (Alaska  2013).  

           17         Patterson  v.   Walker,  429  P.3d  829,  831  (Alaska  2018)  (quoting  Debra  P.  

v.  Laurence  S.,  309  P.3d   1258,   1260  (Alaska  2013)).  

           18         Heller, 314 P.3d at 72-73.  


           19         Collins v. Arctic Builders, 957 P.2d 980, 981 (Alaska 1998).  


           20         Id. (alterations in original) (quoting Sheehan v. University of Alaska , 700  


P.2d 1295, 1297 (Alaska 1985)).  


           21         City of Kodiak v. Kodiak Public Broadcasting Corp., 426 P.3d 1089, 1093  


(Alaska 2018) (quoting Brandner v. Pease, 361 P.3d 915, 920 (Alaska 2015)).  


                                                                      -9-                                                              7367

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

IV.	        DISCUSSION  


            A.	         The Superior Court Did Not Abuse Its Discretion By Dismissing The  


                        2013 Appeal.  


                        Markham  suggests  that  the  superior  court  abused  its  discretion  by  


dismissing his 2013 appeal because it "had both the duty to advise [him] of his specific  


error" in filing his brief late and to allow him to correct it because he was a pro se  



                   This argument has no merit.  Markham is an attorney who, as the superior  


court observed, "by his own account has been practicing law for decades in Alaska." His  


decision to pursue his own case does not entitle him to the leniency we give pro se  


litigants in theirattempts to conformwith procedural requirements. Furthermore, despite  



being given more notice and procedure than the rules require,                                                          Markham failed to  



familiarize himself with relevant court procedures,                                            failed to comply with the court's  


deadline, failed to file a brief for over a year and a half after filing the notice of appeal,  


and, as the superior court found, "continuously flouted the Rules of Procedure."  The  


court was well within its discretion to dismiss his 2013 appeal.  


            B.          There Is No Violation of Markham's Right To Equal Protection.  


                        Markham does not dispute that he spent significantly more time outside of  

            22          See Collins         , 957 P.2d at 982 (concluding that judges must inform pro se                                              

litigants of specific procedural defects in notices of appeal or grant the opportunity to                                                              

correct them).   

            23          Markham had notice that his appeal was going to be dismissed, was given  


the opportunity to remedy his failure to file before the dismissal, and was given a 14-day  


extension after his brief was already 90 days late. As previously discussed, the court was  


not required to provide the additional 14-day extension but did so despite Markham's  


repeated failure to abide by procedural requirements.  See Cowitz v. Alaska Workers'  


Comp. Bd., 721 P.2d 635, 637 (Alaska 1986); Alaska R. App. P. 511.5(c).  


            24          See Cowitz, 721 P.2d at 638 ("It is an appellant's responsibility to file an  


opening brief, and counsel cannot expect court supervision of this procedural rule.").  


                                                                         -10-	                                                                   7367

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

Alaska in 2013 and 2014 than the PFD program permits to qualify as an eligible PFD                                                                                                                             

recipient.   As a result, the Borough assessor determined that he also did not qualify for                                                                                                                         

thetaxexemption pursuant                                            to former Kodiak Island Borough Code (KIBC) 3.35.080(D).                                                                                                 

He argues, however, that the eligibility requirements incorporated into former KIBC                                                                                                                        

 3.35.080(D) are unconstitutional because they violate his right to equal protection.                                                                                                                             He  

 claims that because he owns his home, does not rent it out, and is a resident for other                                                                                                                     

                                                                                                                                               25  he should be eligible for the  

purposes such as voting and obtaining a driver's license,                                                                                                                                                          

tax exemption.   This argument mirrors those we have already addressed in the PFD  


 context,26   which  is not surprising because the Borough based eligibility for the tax  


 exemption on the same criteria as the PFD.27  


                                  Like the PFD, the tax exemption is an economic benefit conferred by the  


               28   We have previously held that restricting the PFD to bona fide residents does not  


violate an individual's right to equal protection.29                                                                                 We held that strict residency and  


physical presence requirements furthered a legitimate state interest because the PFD is  


 a portable cash benefit and is "particularly susceptible to passers-through establishing  


minimal ties to Alaska while intending to reside elsewhere."30                                                                                                      The tax exemption is  


                 25               See  AS 01.10.055 (setting out general residency requirements).                                                            



                                  See Heller v. State, Dep't of Revenue, 314 P.3d 69, 73-81 (Alaska 2013);  


 Church v. State, Dep't of Revenue, 973 P.2d 1125, 1129 (Alaska 1999); Brodigan v.  


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

                 27               See former KIBC 3.35.080(D).  


                 28               See Heller, 314 P.3d at 83; Church, 973 P.2d at 1130; Brodigan, 900 P.2d  


 at 734 n.13.  


                 29               Heller, 314 P.3d at 82-84.  


                 30               Id. at 79-82.  


                                                                                                        -11-                                                                                                  7367

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

 similarly portable:                                               it provides a cash benefit for those individuals who receive it.                                                                                                                                                                It  

therefore   follows   that   although   the   precise   economic   benefit   conferred   here   is  

 different - a tax exemption rather than a PFD - the analysis is the same.                                                                                                                                                                                          

                                              Markham appears to base his equal protection argument on a comparison                                                                                                                                            

between a class of senior citizens who do not remain in Alaska for 185 days each year                                                                                                                                                                  

 due to their travel and senior citizens who do remain in Alaska for 185 days each year.                                                                                                                                                                                                                      

But the appropriate classes that we must consider are:                                                                                                                                         individuals 65 years of age or                                                                      

 older who own and occupy a primary residence and permanent place of abode in Kodiak                                                                                                                                                                                              

 and   meet   the   eligibility   requirements   as   strictly   defined   by   the   PFD   statutes;   and  

individuals 65 years of age or older who own and occupy a primary residence and                                                                                                                                                                                                              

permanent place of abode in Kodiak and do                                                                                                                      not  meet the eligibility requirements as                                                                                           

 strictly defined by the PFD statutes.                                                          

                                              We first recognize that theBorough's tax exemption is merely an economic                                                                                                                                                    

                                                                                                                                                                                                                                                                         31   "Under  

interest similar to the PFD and therefore is entitled only to minimum scrutiny.                                                                                                                                                                                                  

the minimal level of scrutiny, the state . . . needs to show [only] that the 'challenged  


 enactment was designed to achieve a legitimate governmental objective and that the  


means  bear  a  "fair  and  substantial"  relationship  to  the  accomplishment  of  that  


 objective.' "32                                      The issue is thus whether the Borough had a legitimate reason to treat  


those who meet the eligibility requirements under the PFD statutes differently than those  


who do not.  


                       31                     See State v. Schmidt                                                      , 323 P.3d 647, 663 (Alaska 2014) ("Government                                                                                 

 action that                         burdens only economicinterestsgenerallyreceives only minimumscrutiny.");                                                                                                                                                       

Heller, 314 P.3d at 83;                                                         Church, 973 P.2d at 1130;                                                                     Brodigan, 900 P.2d at 734 n.13.                                                               

                       32                      Church, 973 P.2d at 1130 (quoting Underwood v. State, 881 P.2d 322, 325  


 (Alaska 1994)).  


                                                                                                                                               -12-                                                                                                                                       7367

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

                          The State and its municipalities have a legitimate, if not substantial, interest                                                  

in assuring that only those with sufficiently close connections with Alaska receive an                                                                               

                                                                              33   In Heller v. State, Department of Revenue we  

economic benefit conferred by the State.                                                                                                                             


recognized that the PFD is a portable cash benefit intended only for Alaska residents.                                                                                     


And we recognized the danger that those who were not bona fide residents might obtain  


that cash from Alaska, but then reside and spend it elsewhere.35  We found that the PFD's  


residency requirement, specifically requiring sixmonths ofphysical presencein theState  


beforeonecould claiman allowableabsenceunder AS43.23.008(a), was notexcessively  


long;   rather, it was designed to ensure that PFDs went only to Alaska residents to  


reduce the likelihood that this portable cash benefit would be obtained and spent in other  


states by individuals who were only briefly in Alaska.36                                                      We upheld the PFD's physical  


residency requirement as constitutional because "the statute directly advances a state  


interest that is undoubtedly 'legitimate.' "37  


                          The physical presence requirement here accomplishes the same goal.  In  


Heller we noted that the physical presence requirement of the PFD statutes is used as a  


             33           See  Attorney  Gen.  of  N.Y.  v.  Soto-Lopez,  476  U.S.  898,  904  n.3  (1986)  ("A  

bona  fide  residence  requirement,  appropriately  defined  and  uniformly  applied,  furthers  

the   substantial   state   interest   in   assuring   that  services   provided   for   its   residents   are  

enjoyed   only  by  residents.");  Heller,   314 P.3d   at   82,   82  n.72   (discussing  the   State's  

"undoubtedly  legitimate"  interest  in  assuring  its  economic  benefits  go  to  only  bona  fide  

residents);   Stanek   v.   Kenai   Peninsula   Borough,   81   P.3d   268,  272  (Alaska   2003)  

(discussing the "unquestionably legitimate goals" in  promoting  home ownership  through  

tax  exemption  residency  requirements  because  it  is  beneficial  to  the  community).  

             34           Heller, 314 P.3d at 79.  


             35           Id.  

             36           Id. at 79, 80-81.  


             37           Id. at 82.  


                                                                                 -13-                                                                           7367

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

way   to   distinguish  between   residents   and   nonresidents   for   the   purpose   of   PFD  



                   Indeed, "the legislature defined 'state resident' as an individual who meets  


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


temporarily absent under the allowable absence provision . . . .   This shows that the  


allowable  absence  provision  was  intended  to  distinguish  between  residents  and  


                   Like the PFD, the Borough's tax exemption is portable and intended to  


benefit only those who remain in Alaska;40   it directly translates to cash-in-hand for  


property owners who receive it, as they pay nearly $2,000 less in taxes.  The exemption  


reduces taxes only for an individual's primary residence as a way of encouraging senior  


citizens to remain in Alaska;41  it is not intended to be a discount on second homes or  


                        42  By maintaining stringent eligibility requirements, the Borough has  

vacation homes.                                                                                                           


elected not to subsidize second homes or vacation homes and instead has ensured that  


          38       Id.  at  81-82.  

          39       Id.  at  79  (emphasis  in  original).  

          40       Minutes,  Sen.  Finance Comm.,  Hearing  on  S.B.  337,  22nd  Leg.,  2d  Sess.  

(Feb.  28,  2002)  (testimony  of  Sen.  Dave  Donley).  

          41       Id.  

          42       AS   29.45.030(e)   (requiring   exempt   real   property   to   be   "the   primary  

residence and permanent  place of  abode").  If  an individual  cannot meet the eligibility  

requirements then  the real property is not his or her  primary residence for purposes of  

the  tax  exemption.   See  Stanek  v.  Kenai  Peninsual  Borough,  81  P.3d,  268,  271  (Alaska  

2003)   (discussing   a   property   tax   exemption   that   differentiates   between   "owners   of  

owner-occupied  primary  residences  in  the borough  and  owners  of  second  homes  or  other  

types  of  real  property  in  the  borough").  

                                                            -14-                                                       7367

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


the tax exemption benefits only those who remain in Alaska.                                                This is a legitimate state          


                       Moreover, the option for municipalities to incorporate the PFD eligibility                                   

                      44  was adopted by the legislature to make the process easier on both the  


municipality administering the applications and those applying for the tax exemption.45  


Additionally, the tax exemption is meant to encourage senior citizens to remain in  


Alaska, not a particular locality within Alaska.46                                    Thus, although the tax exemption is  


administered at a local level, it is a state-mandated exemption meant to benefit those who  


wish  to  remain  in  Alaska.                      Allowing  adoption  of  the  PFD  eligibility  criteria  was  


rationally  related  to  the  State's  legitimate  interest.                                    The  tax  exemption  therefore  


withstandsminimal scrutiny and does not violateMarkham'sconstitutionalright to equal  



           43          See  Stanek,  81  P.3d  at  272.  

           44          AS  29.45.030(f).  

           45          Minutes, Sen.  Finance  Comm.,  Hearing  on  S.B.  337,  22nd  Leg.,  2d  Sess.  

(Feb.  28,  2002)  (testimony  of   Sen.  Dave  Donley).   The  tax  exemption  is  a  state-wide  

mandated tax exemption,  meaning if  an individual  qualifies for the  tax exemption,  the  

municipality  must  grant  it.   However,  this  is  an  unfunded  mandate  by the   State  upon  

local   governments.     The   legislature   adopted   this   provision   in   part   to   save   local  

governments   time   and   money   during   the   application   process.     Id.     Additionally,  

approximately  95%  of  those  who  apply  for  the  tax  exemption  throughout  the  State  also  

apply  for  the  PFD.   Minutes,  Sen.  Finance  Comm.,  Hearing  on  S.B.  337,  22nd  Leg.,  2d  

Sess.  (Mar. 28,  2002)  (testimony of Tim  Rogers, Legislative Program  Coordinator for  

the  Municipality  of  Anchorage).   Thus,  allowing  those  individuals  to  simply  transfer  that  

information  makes  the  application  process  easier.   Id.  

           46          See Minutes, Sen. Finance Comm., Hearing on S.B. 337, 22nd Leg., 2d  


Sess. (Feb. 28, 2002) (testimony of Sen. Dave Donley).  



                                                                      -15-                                                                 7367

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

          C.	       The Eligibility Requirements For The Borough's Tax Exemption Do  

                    Not Violate The Privileges And Immunities Clause Or The Right To  



                    Markhamnext argues that the Borough's eligibility requirements for its tax  


exemption violate his right to travel guaranteed by both the Alaska Constitution and the  


United States Constitution.47  


                                            This argument has no merit. As it was authorized to do by  



               the  Borough  imported  the  PFD  program's  eligibility  requirements.                                        We  


"squarely" and  expressly  rejected  the same arguments Markham makes in  a  direct  



challenge to the PFD eligibility requirements.                            


                    "When examining [a statute's] impact on the right of interstate migration,  


the relevant questions are whether [the benefit conferred by the statute] operates in such  


a way that the reasonable recipient would be deterred from exercising the right to travel,  



and the degree of that deterrence."                   We held in Church v. State, Department of Revenue  


that the PFD eligibility requirements' "infringement on [an individual's] right to travel  


is relatively small and would not be likely to deter a person from traveling. An applicant  


has no vested property right in a permanent fund dividend and should not expect to  



receive a dividend if he doesn't meet the qualifications."                              The purpose in awarding the  


tax  exemption  only  to  those  who  wish  to  remain  in  Alaska  "outweighs  the  minor  

          47        U.S.  Const.  amend.  XIV,   §   1;  Alaska  Pac.  Assurance  Co.  v.  Brown,  687  

P.2d 264, 271 (Alaska 1984) ("The right of interstate  migration  is a part of the Alaska  


          48        AS 29.45.030(f).  


          49        Schikora v. State, Dep't of Revenue, 7 P.3d 938, 944 (Alaska 2000).  


          50        Alaska Pac. Assurance  Co., 687 P.2d at 273.  


          51         973 P.2d 1125, 1131 (Alaska 1999) (internal citations omitted).  


                                                              -16-	                                                        7367

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


infringement"   on  an   individual's   right   to   travel.                                                     The   Borough's   tax   exemption  

therefore does not violate his fundamental right to travel.                                               

              D.            The Borough Did Not Violate Markham's Right To Privacy.                                                             

                            Markhamclaims that the Borough violated his right to privacy by requiring                                                             

him to provide documentation that his absences were allowable.                                                                             This argument also               


lacks merit.              "The burden of proving eligibility for an exemption is on the taxpayer."                                                                                    


Markham applied for a benefit and in response to his application was asked to provide  


minimal corroboration of his claimed allowable absences.  His refusal to do so simply  



means he could not receive the benefit for which he applied.                                                                                 Markham was not  



required to apply for this benefit or disclose medical information;                                                                     he was free to decline  



                                                                                                                       By asking for the benefit of a  

the request for supporting information (and he did so). 


tax exemption, Markham invited the Borough assessor to determine his eligibility to  

              52            Id.  (quoting  Brodigan v. Alaska Dep't of Revenue                                                    , 900 P.2d 728, 734 n.13                  

(Alaska 1995)).   

              53            Fairbanks  N.  Star  Borough  v.  DenĂ¡  NenĂ¡  Henash,  88  P.3d  124,  129  


(Alaska 2004).  


              54            See AS 29.45.030(f) ("The assessor shall require proof in the form the  


assessor considers necessary of the right to and the amount of an exemption claimed  


under (e) of this section . . . .").  


              55            Cf. Falcon v. Alaska Pub. Offices Comm'n, 570 P.2d 469, 475-76 (Alaska  


 1977) (discussing a regulation that required a doctor to disclose his patient's names).  


              56            If  Markham  had  provided  such  documentation,  there  are  sufficient  


safeguards in place to ensure protection of his privacy interest.   AS 40.25.120(a)(3)  


(exempting "medical and related public health records" from public disclosure); KIBC  


2.40.100(A)(7) (exempting "[r]ecords required to be kept confidential . . . by state law  


or by borough law" from disclosure).  


                                                                                      -17-                                                                                7367

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


receive it.                      By accepting his invitation, the Borough did not violate Markham's right                                                                                                                   

to privacy.   

                  E.                The Board Did Not Violate Markham's Right To Due Process.                                                                                                   

                                    Markham asserts that the Board violated his due process rights because:                                                                                                                                

 (1)  under KIBC 3.35.050(A)(3) the Board only has authority to hear valuation appeals;                                                                                                                            

 (2)  the Board did not allow him to appear at the hearing by telephone; and (3) the Board                                                                                                                               

declined to consider his late-filed supplemental documents. These arguments are neither                                                                                                                                

clearly briefed nor do they persuade us that the Board violated Markham's rights to due                                                                                                                                         



                               "The crux of due process is an opportunity to be heard and the right to  



adequately represent one's interests." 


                                    Markham first argues that the Board only has authority to hear valuation  


appeals.  But the Alaska Administrative Code expressly allows an applicant to appeal  

                  57                We note that the Borough assessor explained that a letter from a doctor                                                                                                           

would have sufficed and that it did not need to "go into any kind of medical detail."                                                                                                                                               

                  58                We analyze procedural due process claims under the test articulated in  


Mathews v. Eldridge :  


                                    First, the private interest that will be affected by the official  


                                    action; second, the risk of an erroneous deprivation of such  


                                    interest through the procedures used, and the probable value,  


                                    if any, of additional or substitute procedural safeguards; and  


                                    finally,  the  Government's  interest,  including  the  function  


                                    involved and the fiscal and administrative burdens that the  


                                    additional or substitute procedural requirement would entail.  


424 U.S. 319, 335 (1976).  


                  59                 Church v. State, Dep't of Revenue, 973 P.2d 1125, 1130 (Alaska 1999)  


 (quoting Keyes v. Humana Hosp. Alaska, Inc., 750 P.2d 343, 353 (Alaska 1988)).  


                                                                                                               -18-                                                                                                         7367

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


"any determination of [a] local assessor" to the local Board of Equalization.                                                                                                                     Markham  

was given that opportunity.            

                                  He next argues that he should have been allowed to appear by telephone at                                                                                                            

the Board's hearings and that the Board violated his due process rights by prohibiting                                                                                                         

him from doing so.                                KIBC 3.35.050(C) provides the opportunity to appear in person or                                                                                                    

to send a personal representative and allows the Board to proceed if neither the appellant                                                                                                           

                                                                        61   Due process requires only a reasonable opportunity to be  

nor a representative appears.                                                                                                                                                                                         

heard based on "the nature of the case."62                                                                    Markham was given such opportunity.  He  


chose not to appear in person because it would have been an inconvenience.  And he  


chose to send a representative on his behalf to advocate his interests.  The Board did not  


violate his rights to due process by prohibiting him from appearing by telephone.  


                                  Similarly, Markham argues that the Board should have considered his late- 


filed  supplemental  documents.                                                       But  he  was  given  the  opportunity  to  present  such  


documentary evidence in support of his claims in a timely manner. The Board even gave  


him an extended deadline to submit any documents he wanted considered on appeal.  


And although he suggests that his late-filed documents did not cause any prejudice, the  


Board  had  discretion  to  choose  whether to consider them.63  The Board did not violate  

                 60               3  Alaska  Administrative  Code  (AAC)   135.110(a).  

                 61               KIBC  3.35.050(C)(1),  (4).  

                 62               See   Griswold  v.  Homer  Bd. of  Adjustment , 426 P.3d   1044,   1045  (Alaska  

2018)   ("[P]rocedural   due   process   under   the   Alaska   Constitution   requires   notice   and  

opportunity   for  hearing   appropriate  to  the  nature   of  the   case."   (alteration  in   original)  

(quoting  Price v.  Eastham,  75  P.3d   1051,   1056  (Alaska  2003)));  see  also  Church, 973  

P.2d  at  1130  (holding  summary  adjudication  satisfied  procedural  due  process  in  appeal  

of  PFD  denial).  

                 63               KIBC 3.35.050(E)(5) provides:  



                                                                                                         -19-                                                                                                  7367

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

Markham's rights to due process by electing not to do so.                                               

                         To the extent that Markham argues his rights to due process were violated                                                   

because the Board lacked authority to rule on the constitutionality of former KIBC                                                                      

3.35.080(D), this argument is waived for inadequate briefing.                                                       64  

                         Accordingly, the Board did not violate Markham's rights to due process.  


             F.          All Other Arguments Are Abandoned By Inadequate Briefing.  


                         To the extent that Markham alleges that the Borough assessor was biased,  


that the superior court abused its discretion by failing to supplement the record with an  


affidavit from a representative he sent to the Board hearing, that the Board wrongly  


prohibited Markham'srepresentativefromadvocating on hisbehalfat theBoard hearing,  


and that the Borough attorney's communications with the Borough clerk violated due  


process, these arguments are abandoned by inadequate briefing. Markham did not argue  


or provide support for these issues in his briefing.  


             G.	         The Superior Court Did Not Address AS 09.60.010 Or Make The  


                         Requisite Factual Findings To Determine Attorney's Fees.  


                         After the superior court dismissed Markham's 2013 appeal, the Board  


requested full fees and costs as a sanction for Markham's extensive filings and delays.  


             63	         (...continued)  


                         The  appellant  must  submit  to  the  assessor's  office  by  


                         April  15th  all  documentary  evidence  in  their  possession  


                         which they wish to be considered and which is relevant to the  


                         resolution of the appeal. . . . The board of equalization may  


                         in its discretion decline to accept documents offered at the  


                         hearing   which   should   have   been   provided   by   April  


                          15th.  .  .  .  Prior  to  the  board  meeting,  the  appellant  and  


                         assessor may agree to an extension of time for the production  


                         of evidence.  

             64          See Windel v. Carnahan, 379 P.3d 971, 980 (Alaska 2016).  


                                                                              -20-	                                                                       7367

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

The superior court did not award full fees nor did it suggest that its award of partial fees                                                                               

and costs was a sanction, but rather awarded 20% of fees and costs under Appellate Rule                                                                                   



508(e).              However, the superior court did not address Markham's claim that he was a  



                                                                                                                                                               While the  

constitutional litigant exempt from attorney's fees under AS 09.60.010(c). 


case was dismissed for failure to prosecute, the underlying claims were constitutional  


claims  of  equal  protection,  travel,  privacy,  and  due  process.                                                                      Because  he  raised  


constitutional claims, Markham may have been shielded by AS 09.60.010(c) unless the  


court  determined  he  had  a  sufficient  economic  incentive  to  bring  his  claims.                                                                                     We  


therefore vacate the superior court's award of attorney's fees and remand for the superior  


court to address the issue pursuant to AS 09.60.010.  

V.            CONCLUSION  


                            We AFFIRM the superior court's dismissal of the 2013 appeal and denial  


of the 2014 appeal on the merits, but VACATE the superior court's award of attorney's  


fees and REMAND for further proceedings on this issue.  

              65            This rule has been modified since the superior court's decision in 2015.                                                                 



                            AS 09.60.010(c)(2) states:  


                            In  a  civil  action  or  appeal  concerning  the  establishment,  


                           protection, or enforcement of a right under the United States  


                            Constitution or the Constitution of the State of Alaska, the  


                            court . . . may not order a claimant to pay the attorney fees of  

                            the        opposing                party           devoted               to       claims            concerning  

                            constitutional rights if the claimant . . . did not prevail in                                                         

                            asserting the right, the action or appeal asserting the right was                                                   


                            not  frivolous,  and  the  claimant  did  not  have  sufficient  


                            economic incentive to bring the action or appeal regardless of  


                            the constitutional claims involved.  

                                                                                     -21-                                                                                7367

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