Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions

Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.


You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Donald Jones and Annette Gwalthney-Jones v. State of Alaska, Department of Revenue (5/24/2019) sp-7368

Donald Jones and Annette Gwalthney-Jones v. State of Alaska, Department of Revenue (5/24/2019) sp-7368

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

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


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



                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  

DONALD  JONES  and  ANNETTE                                      )  

GWALTHNEY-JONES,                                                 )     Supreme  Court  No.  S-16860  



                              Appellants,                        )     Superior Court No. 3AN-16-08636 CI  



                                                                 )     O P I N I O N  



STATE OF ALASKA, DEPARTMENT                                                                             

                                                                 )     No. 7368 - May 24, 2019  


OF REVENUE,                                                      )  


                              Appellee.                          )  




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


                    Judicial District, Anchorage, Charles W. Ray, Jr., Judge.  


                    Appearances:            Mario  L.  Bird,  Ross,  Miner  & Bird,  P.C.,  


                    Anchorage, for Appellants.  Jonathan P. Clement, Assistant  


                    Attorney   General,   Anchorage,   and   Jahna   Lindemuth,  


                    Attorney General, Juneau, for Appellee.  


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


                    and Carney, Justices.  


                    CARNEY, Justice.  



                    A husband and wife appeal denials of their Permanent Fund Dividends  


(PFDs) for 2014 and 2015.  The husband's 2014 PFD application was denied because  


he had been absent from the state for more than five years, creating a presumption of  


nonresidence that he was unable to rebut. The wife's application was denied because her  

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


PFD eligibility as an accompanying military spouse depended on her husband's.  After  


the denials were affirmed by an Administrative Law Judge (ALJ), the couple appealed  


to the superior court.  


                    While this appeal was pending they both applied for 2015 PFDs and were  


againdenied. The husband's 2015 application was denied because his residency for PFD  


purposes was severed in the 2014 PFD proceedings and he had not reestablished it. The  


wife's application was again denied because of her accompanying-spouse status.  They  


appealed the 2015 denials as well; the superior court consolidated the 2014 and 2015  


cases and affirmed both denials.  


                    The husband and wife appeal.  They argue that the requirement that they  


be physically present in Alaska for 30 days in the five years preceding their application,  


pursuant to AS 43.23.008(d)(1), is unconstitutional.  They also argue that we should  


interpret the relevant statutes and regulations in the light most favorable to them, which  


they claim would entitle them to both 2014 and 2015 PFDs. Finally, they argue that even  


if we uphold the statute as constitutional, we should nevertheless award them 2014 and  


2015 PFDs through our "equitable powers."  


                    Because neither spouse meets the residency requirements to qualify for  


either a 2014 or a 2015 PFD under the plain language of the statute, and because we find  


that the statute is constitutional, we affirm the ALJs' decisions. As our equitable powers  


do  not  extend  to  ignoring  a  valid  and  unambiguous  statute  duly  enacted  by  the  


legislature, we decline to award PFDs on this ground.  



          A.        Facts  


                    Donald  Jones  first  came  to  Alaska  in  1998  when  he  was  stationed  at  


Elmendorf Air Force Base.  In 2000 he married Annette Gwalthney-Jones, a long-time  


Alaska resident.            Jones was transferred out of the state in 2001; despite numerous  

                                                               -2-                                                        7368

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

requests   he   was   never   reassigned   to   Alaska.    The   Joneses   nonetheless   maintained  

 significant ties to the state: they registered their vehicles in Alaska, held Alaska driver's                                                                                                                                                                                                                                                                                     

 licenses, owned real property inAnchorage,andcastabsenteeballots                                                                                                                                                                                                                                                             in Alaskaelections.                                                                          

 There is no dispute that since Jones's 2001 transfer both he and his wife "have intended                                                                                                                                                                                                                                                                                      

to  return   to   the   state   and   to   remain   indefinitely."     They   returned   permanently   on  

November 29, 2014, shortly before Jones retired from the Air Force.                                                                                                                                                                                                                                                                    

                                                               Jones was eligible for and received a PFD from 2001 to 2013. Gwalthney-                                                                                                                                                                                                                         

Jones was eligible for and received a PFD from 1982 to 2013.                                                                                                                                                                                                                                                 Despite being largely                                                    

 absent from 2001 until their return to Alaska in 2014, they remained eligible for PFDs                                                                                                                                                                                                                                                                                                      

until 2013 because their absences were allowed by a special exception for military                                                                                                                                                                                                                         

                                                                                                                                                                                                                                                                                                    1        Following their return,  

 service members and their spouses under AS 43.23.008(a)(3).                                                                                                                                                                                                                                                                                                                             

they both applied for and received 2016 PFDs.  


                                1                              AS 43.23.008(a) provides:                                                        

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

                                                               individual who is absent from the state during the qualifying                                                                                                                                                                             

                                                               year   remains   eligible   for   a   current   year   permanent   fund  

                                                               dividend if the individual was absent                                                                                                          

                                                                                               . . . .  

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

                                                                forces    of    the    United    States    or    accompanying,    as    that  

                                                               individual's spouse, . . . an individual who is                                                                                                                                                            

                                                                                                                               (A) serving on active duty as a member of the                                                                                                                                                               

                                                                armed forces of the United States; and                                                                                                                            

                                                                                                                               (B)  eligible for a current year dividend.                                                                                                  

                                                               The accompanying-spouse provision was added to subsection (a)(3) in                                                                                                                                                                                                                                                                           

2003, but was previously available to Gwalthney-Jones under a different subsection of                                                                                                                                                                                                                                                                                                                         

the same statute.                                                               See  Ch. 69,  1, SLA 2003; former AS 43.23.008(a)(13) (2002).                                                                                                                                                                                                                   

                                                                                                                                                                                                      -3-                                                                                                                                                                                         7368

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

          B.        Proceedings  


                    1.        2014 PFD applications and administrative proceedings  


                    In  March  2014  Jones  and  Gwalthney-Jones  applied  for  2014  PFDs.  



Eligibility for 2014 PFDs depended upon their qualifying as residents during 2013.                                              In  


June  2013  the  Alaska  Legislature  revised  the  PFD  eligibility  statutes  and  adopted  


AS 43.23.008(d), which states:  


                    After an individual has been absent from the state for more  


                    than 180 days in each of the five preceding qualifying years,  


                    the department shall presume that the individual is no longer  


                    a state resident.  The individual may rebut this presumption  


                    byproviding clear and convincingevidenceto thedepartment  



                              (1) the individual was physically present in the state  


                    for at least 30 cumulative days during the past five years; and  


                              (2)  the  individual  is  a  state  resident  as  defined  in  



                    AS 43.23.295. 

The legislature made this statute retroactive to January 1, 2013.4  


                    Alaska Statute 43.23.008(d) codified a Division regulation that had been  

in  place  since  1999,  15  Alaska  Administrative Code  (AAC)  23.163,  with  one  key  


difference.5       The regulation had imposed the same 30 days/5 years requirement to rebut  


a presumption of nonresidence, but it had allowed an exception if an individual could  


          2         See  AS  43.23.295(6)  ("   '[Q]ualifying  year'  means  the  year  immediately  

preceding   January   1   of   the   current   dividend   year.").     Former   AS   43.23.095,  the  

definitional  statute  in  place  at  the  time  of  the  Joneses'  PFD  applications  and  appeals,  was  

renumbered  as  AS  43.23.295  in  2018.   Revisor's  notes,  AS  43.23.295.  

          3         AS 43.23.008(d); ch. 33,  2, SLA 2013.  


          4         Ch. 33,  5, SLA 2013.  


          5         Id. ; see former 15 AAC 23.163 (am. 1/1/99).  


                                                               -4-                                                         7368

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

show "that unavoidable circumstances prevented that individual from returning" for the                                                             


required 30 cumulative days.                                                                                                    

                                                         The 2013 statute does not contain the "unavoidable  



circumstances" exception. 


                       The Division, reading AS 43.23.008(d)(1) to eliminate any exception from  


the 30 days/5 years rule, denied Jones's 2014 PFD application.  It is undisputed that  


Jones had been absent from the state for more than 180 days in each of the previous five  


qualifying years for the 2014 PFD, i.e., 2009-2013. It is also undisputed that he had not  


been physically present in Alaska for at least 30 cumulative days during the same five- 


year period. The Division also denied Gwalthney-Jones's 2014 application, finding that  



her eligibility depended on her husband remaining eligible. 

                       The Joneses requested informal appeals of their 2014 PFD denials.  They  


argued that their ties to Alaska proved their intent to remain Alaska residents, but they  


did not address the 30 days/5 years statutory language.  The Division denied Jones's  


appeal, stating that "the current law clearly states [that] an individual who is not back for  


30 days is no longer a state resident for PFD purposes."   The Division also denied  


Gwalthney-Jones's informal appeal, finding "no provision in law" that would entitle her  


to a 2014 PFD when she had been "absent from Alaska for more than 180 days during  


2013 accompanying an individual ineligible to receive the 2014 PFD."  


            6          Former   15  AAC  23.163  (2012).   

            7          AS  43.23.008(d).   

            8          See   AS   43.23.008(a)(3)   (requiring   that   the   active-duty   servicemember  

whom  the  applicant  is  accompanying  be  "eligible  for  a  current  year  dividend").   

                                                                         -5-                                                                   7368

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

                          The Joneses then requested formal hearings, at which they had the burden                                                        


to   prove   that   the   Division   had   erred   in   denying   their  applications.                                                                      

                                                                                                                                                They  again  


emphasized  their  ties  to  Alaska;  they  also  argued  for  the  first  time  that  the  


30  days/5  years  rule  was  an  ex  post  facto  law  and  that  it  conflicted  with  another  

                                                          10    The Division argued that the 2013 statute's wording  


provision in the PFD statutes. 

precluded it from considering "why an  individual failed to meet the 30 day return  


requirement, as it could do [previously] under [the] regulation."  


                          Following  a  hearing  the  ALJ  issued  a  decision  and  order  (2014  PFD  


Decision), which was adopted by the Commissioner of Revenue in March 2016.  The  


ALJ concluded that in enacting AS 43.23.008, the legislature had "clarified its intent to  


make the 30-day requirement inflexible" by "striking" the unavoidable-circumstances  


exception.  The ALJ found that the statute was thus not ambiguous and did not "allow  


for other factors to mitigate the 30-day requirement." Since it was uncontested that Jones  


did not satisfy the 30 days/5 years rule, the ALJ found that he had not rebutted the  


nonresidence presumption and was no longer a state resident for PFD purposes.  The  


2014 PFDDecision also affirmedthedenial of Gwalthney-Jones's 2014 PFDapplication  


             9            See  15 AAC 05.030(h) ("[T]he person requesting the [formal] hearing has                                                                

the burden of proving that the [challenged] action by the department . . . is incorrect.").                                                      

             10           They          specifically              claimed            that       AS        43.23.008(d)                 conflicted              with  


AS 43.23.005(a)(4), which provides that an individual must have "been physically  


present in the state for at least 72 consecutive hours at some time during the prior two  


years before the current dividend year" to be eligible for a PFD. The Joneses do not raise  


this argument on appeal, so we note only that the 72-hour requirement being a necessary  


condition of PFD eligibility does not mean that it is a sufficient condition; the legislature  


is free to impose additional requirements.  


                                                                                 -6-                                                                          7368

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


because, as an accompanying spouse, she was only eligible if Jones was.                                                                                                                                                                                               The ALJ   

rejected the Joneses' ex post facto challenge and found no conflict in the applicable                                                                                                                                                                               

statutes.   The Joneses appealed to the superior court.                                                                                                                               

                                              2.                     2015 PFD applications and administrative proceedings                                                                                                       

                                              In March 2015 both spouses applied for 2015 PFDs.                                                                                                                                  The Division denied                             

Jones's 2015 application, reasoning that his "Alaska residency for PFD purposes was                                                                                                                                                                                                       

previously severed" when he could not rebut the presumption of nonresidence for his                                                                                                                                                                                                          

                                                                                                                                                                                                       12                                                                                          13  

2014 application.                                              The Division, citing AS 43.23.005(a)                                                                                                                                                           

                                                                                                                                                                                                               and 15 AAC 23.143(b), 


stated that Jones "did not return to Alaska to remain indefinitely and re-establish his  


residency for PFD purposes until November 29, 2014, too late to qualify for the 2015  


dividend."                                   The  Division  also  denied  Gwalthney-Jones's  application,  as  she  had  


exceeded the allowable absences by being absent for 197 days in 2014 to accompany a  

                       11                     See  AS 43.23.008(a)(3).                                                             

                       12                     AS 43.23.005(a) provides:                                  

                                              An individual is eligible to receive one [PFD] each year . . .                                                          

                                              if the individual                                       

                                                                     . . . .  

                                                                     (2)  is a state resident on the date of application;                                                                     

                                                                     (3) was a state resident during the entire qualifying  



                                                                     . . . .  


                                                                     (6)   was,   at   all   times   during   the   qualifying   year,  


                                              physically present in the state or, if absent, was absent only  

                                              as allowed in AS 43.23.008.                                 

                       13                      15  AAC  23.143(b)  provides  that  "[a]n  individual  may  not  become  a  


resident while absent from Alaska."  


                                                                                                                                               -7-                                                                                                                                     7368

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


spouse who was not eligible for a PFD.                                                   


                            The Joneses requested informal appeals of the 2015 PFD denials.  They  


again listed their ties to Alaska and emphasized that they had returned permanently to  

                                                                                                                             15        The  Division,  citing  



the  state  in  November  2014  upon  Jones's  retirement. 

AS 01.10.055,16  AS 43.23.005(a),17  and former AS 43.23.095(7),18  denied the informal  


appeals.  It found that Jones "did not return to Alaska prior to January 1, 2014[,] to  


reestablish [his] residency and eligibility" under the PFD statutes.19                                                                         As to Gwalthney- 


Jones, the Division found that her 197 days' absence to accompany Jones was "not  


              14            The Division found that Gwalthney-Jones had been absent for 19 days to                                                                               

assist a family member receiving care for a life-threatening illness - allowable under   

AS 43.23.008(a)(6) - and for 197 days "to accompany her ineligible military spouse."                                                                                                   

This exceeded the 45 days' absence she was allowed to claim in addition to her absence                                                                               

under AS 43.23.008(a)(6).                                 See  AS 43.23.008(a)(17)(C).                                   

              15            While  Jones's  retirement  from  the  military  did  not  take  effect  until  


January 1, 2015, he was on terminal leave in Anchorage beginning November 29, 2014.  


              16            AS 01.10.055(a) provides that "[a] person establishes residency in the state  


by being physically present in the state with the intent to remain . . . indefinitely and to  


make  a home in  the state."                                    The required  intent may  be shown  "by  maintaining  a  


principal place of abode in the state for at least 30 days" - or longer if required by law  


or regulation - and providing other proof of intent if required by law or regulation.  


AS 01.10.055(b).  A person retains state residency during an absence unless that person  


"establishes or claims residency" elsewhere or "is absent under circumstances that are  


inconsistent with" the required intent.  AS 01.10.055(c).  


              17            See AS 43.23.005(a)(2), (3), (6).  


              18            Former AS 43.23.095(7) (renumbered as AS43.23.295(7)) defined a"state  


resident" as "an individual who is physically present in the state with the intent to remain  


indefinitely . . . or, if the individual is not physically present in the state, intends to return  


to the state and remain indefinitely" pursuant to AS 01.10.055.  See Revisor's notes,  


AS 43.23.295(7).  


              19            See AS 43.23.005(a)(3).  


                                                                                        -8-                                                                                7368

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


allowable" because he "was determined not eligible for the 2015 PFD."                                                 


                     The Joneses then requested formal hearings.   Jones argued that he had  


returned to Alaska for a total of 47 days in the five years prior to his 2015 application  


and  thus  satisfied  the  30  days/5  years  rule.                         The  Division  countered  that  he  "had  


previously severed his Alaska residency for PFD purposes," had only reestablished it in  


November 2014, and was thus not " 'a state resident during the entire qualifying year'  



when applying for the 2015 PFD." 

                     Following a hearing the ALJ issued a decision and order affirming the  


denials of the Joneses' 2015 PFDs (2015 PFD Decision). The Commissioner of Revenue  


adopted the order in August 2016.  The 2015 PFD Decision stated that the 2014 PFD  


Decision had "severed Mr. Jones's residency for PFD purposes prior to January 1,  


2014."  The ALJ concluded that the parties were bound by the outcome of the 2014  


appeal pursuant to the doctrine of collateral estoppel (issue preclusion) and could not  


relitigate the question of Jones's residency.   The ALJ therefore found both spouses  


ineligible for 2015 PFDs.  The Joneses appealed to the superior court.  


                     3.         Superior court proceedings  


                     The superior court consolidated the 2014 and 2015 PFD appeals.   The  


Joneses, who by this point had obtained counsel, argued that AS 43.23.008(d) violates  


the  due  process,  privileges  and  immunities,  and  equal  protection  clauses  of  the  


Fourteenth Amendment.22                     They also argued that it violates article I, section 1 of the  


           20        See  AS  43.23.008(a)(3)(A)-(B)  &  (17)(C).   

           21        See  AS  43.23.005(a)(3).   

           22        The Fourteenth Amendment states:  "No State shall make or  enforce any  

law  which  shall  abridge  the  privileges  or  immunities  of  citizens  of  the  United  States;  nor  

shall a   ny  State  deprive  any  person  of  life,  liberty, or property,  without  due  process  of  


                                                                  -9-                                                            7368

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

                                            23                                                                                                               24  

Alaska Constitution                             and that it is an unconstitutional ex post facto law.                                                             Finally they   

asserted that even if the court found AS 43.23.008(d) constitutional, it could award them                                                                                          

2014 and 2015 PFDs through its equitable powers.                                                                 

                             The   superior   court   rejected   the   Joneses'   constitutional   arguments   and  

declined to exercise its equitable powers to award them PFDs.                                                                                   The court found the                   

Joneses ineligible for 2014 PFDs under a plain reading of the amended statute.                                                                                                It held   

that the statute did not create an irrebuttable presumption that would violate due process                                                                                   

                                                  25  and that the 30 days/5 years rule was not an "unconstitutional  

under   Vlandis v. Kline                         ,                                                                                                      

                                                                                                                     26   The court held that the Joneses  

durational residency requirement" under Saenz v. Roe.  


were not denied equal protection under the Alaska or United States Constitutions and  


that the statute furthers legitimate state interests.  Finally the court found that the statute  



was not an unconstitutional ex post facto law under  Underwood v. State.    


                             The Joneses appeal.  They raise constitutional arguments almost identical  


to  those raised  before the superior  court.                                                     They further  argue that the statutes and  


regulations should be interpreted in the light most favorable to them.   Finally they  


               22            (...continued)  


law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S.  


Const. amend. XIV,  1.  

               23            Alaska Const. art. I,  1 provides:  "[A]ll persons are equal and entitled to  


equal rights, opportunities, and protection under the law."  


               24            See U.S. Const. art. I,  10, cl. 1 ("No State shall . . . pass any Bill of  


Attainder, ex post facto Law, or Law impairing the Obligation of Contracts."); Alaska  


Const. art. I,  15 ("No bill of attainder or ex post facto law shall be passed.").  


               25            412 U.S. 441 (1973).  


               26            526 U.S. 489 (1999).  


               27            881 P.2d 322 (Alaska 1994).  


                                                                                          -10-                                                                                    7368

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

request that we use our equitable powers to award them their PFDs even if we find                                                                                     

AS 43.23.008(d) constitutional.                                   

III.          STANDARD OF REVIEW                    

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


independently review the merits of the underlying administrative decision."                                                                                               

                                                                                                                                                           Under de  


novo review, "[w]e adopt the rule of law that is most persuasive in light of precedent,  



reason, and policy."                            When an administrative decision raises an issue of "statutory  


interpretation involving legislative intent rather than agency expertise, we review that  



question independently, applying the substitution-of-judgment standard"                                                                             and adopting  



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


"However, even under the independent judgment standard [we have] noted that the court  


should  give  weight  to  what  the  agency  has  done,  especially  where  the  agency  

                                                              32  "Constitutionalinterpretation presentsquestionsoflaw  


interpretation is longstanding." 

that are subject to independent review under the de novo standard."33  


              28           Heller v. State, Dep't of Revenue                                  , 314 P.3d 69, 72 (Alaska 2013) (citing                            

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

              29           Id.  at 72-73 (citing State v. Native Vill. of Tanana, 249 P.3d 734, 737  


(Alaska 2011)).  


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


924, 926 (Alaska 2004)).  


              31           Chugach Elec. Ass'n v. Regulatory Comm'n of Alaska, 49 P.3d 246, 249  


(Alaska 2002) (quoting Cook Inlet Pipe Line Co. v. Alaska Pub. Utils. Comm'n, 836 P.2d  


343, 348 (Alaska 1992)).  


              32           Id.  at 250 (alteration in original) (quoting Nat'l Bank of Alaska v. State,  


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


              33           Heller, 314 P.3d at 73 (citing Eagle v. State, Dep't of Revenue, 153 P.3d  



                                                                                   -11-                                                                             7368

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



          A.	       The Joneses Are Not Eligible For 2014 And 2015 PFDs Based On The  


                    Plain Language Of AS 43.23.008(d).  


                    The Joneses raise what seems to be a statutory interpretation argument and  


assert  that  we  should  interpret  the  PFD  statutes  and  regulations  "in  the  light  most  


favorable" to them.  They do not dispute that Gwalthney-Jones's eligibility depends on  


Jones's,  but  they  argue  that  Jones  is  entitled  to  2014  and  2015  PFDs  because  the  


legislativeintent behind the2013statute"was to assistAlaska's career military personnel  


in proving their intent to remain Alaskans."  The Department responds that the Joneses  


are  ineligible  for  2014  and  2015  PFDs  under  the  plain  language  of  amended  


AS 43.23.008.  


                    We have said that "[t]he objective of statutory construction is to give effect  


to  the  intent  of  the  legislature,  with  due  regard  for  the  meaning  that  the  statutory  

                                            34   We therefore read "unambiguous statutory language"  


language conveys to others." 

according to "its ordinary and common meaning" but "look to legislative history as a  


guide to construing a statute's words."35   We apply "a sliding scale approach to statutory  


interpretation, in which 'the plainer the statutory language is, the more convincing the  


evidence of contrary legislative purpose or intent must be.' "36  


          33        (...continued)  


976, 978 (Alaska 2007); State v. Planned Parenthood of Alaska, 171 P.3d 577, 581  


(Alaska 2007)).  

          34        Heller, 314 P.3d at 74 (quoting City of Dillingham v. CH2M Hill Nw., Inc.,  


873 P.2d 1271, 1276 (Alaska 1994)).  


          35        Id. (citing CH2M Hill Nw., Inc., 873 P.3d at 1276).  


          36        Municipality of Anchorage v. Stenseth, 361 P.3d 898, 905 (Alaska 2015)  


(quoting McDonnell v. State Farm Mut. Auto Ins. Co., 299 P.3d 715, 721 (Alaska 2013)).  


                                                              -12-	                                                       7368

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

                               The text of AS 43.23.008(d) reads:                                                  

                               After an individual has been absent from the state for more                                                                     

                               than 180 days in each of the five preceding qualifying years,                                                                 

                               the department shall presume that the individual is                                                                  no longer   

                               a state resident                    .   The individual may rebut this presumption                              

                               byproviding                   clear and convincingevidenceto thedepartment                                        



                                               (1) the individual was physically present in the state  


                               for at least 30 cumulative days during the past five years; and  


                                               (2)  the  individual  is  a  state  resident  as  defined  in  



                               AS 43.23.295. 

The text is clear:  an allowably absent individual must be physically present in the state  


for 30 days in the preceding five qualifying years to be eligible for a PFD.38   There is no  


ambiguity about this requirement.  


                               Because the statute is plain and unambiguous, our sliding scale approach  


places a high burden on the Joneses to show contrary legislative intent to advance a  


different meaning.39  The Joneses seemto contend that the 2013 amendments' legislative  


history supports reading an "unavoidable circumstances" exception into the current  


statute.  They imply that this exception would allow them to qualify for 2014 and 2015  


PFDs, just as they did under the Division's pre-2013 regulation.40  


                37             AS 43.23.008(d) (emphasis added).                                 



                               AS 43.23.008(d).  We note that the 2014 PFD Decision found - and the  


Department does not dispute - that Jones could and did satisfy the statute's second  

requirement, qualifying as a resident under the former AS 43.23.095 based on his intent                                                                                                      


to  return  to  Alaska.                                 But  AS  43.23.008(d)  requires  an  applicant  to  satisfy  both  


requirements to rebut the presumption of nonresidence for PFD purposes.  

                39             See Stenseth, 361 P.3d at 905.  


                40             See former 15 AAC 23.163(h)(2) (2012).  


                                                                                                -13-                                                                                          7368

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

                                         The legislative history does not support the Joneses' proposed reading of                                                                                                                                                  

the statute.                       As part of its 2013 amendments to the PFD statutes, the legislature repealed                                                                                                                                 

former AS 43.23.008(c), which had established a cutoff from PFDs after ten years of                                                                                                                                                                                 


                                         An otherwise eligible individual who has been eligible for the                                                                                                                  

                                         immediately   preceding   10 dividends                                                                                  despite being                               absent  

                                         from the state for more than 180 days in each of the related                                                                                                       

                                          10   qualifying   years   is   only  eligible   for   the   current   year  

                                         dividend if the individual was absent 180 days or less during                                                                                                       


                                         the qualifying year.                                                  

The legislature repealed this ten-year cutoff shortly after we upheld its constitutionality  


                                                                                                                            42   During a hearing on the proposed repeal, the  

in Ross v. State, Department of Revenue.  


bill's sponsor testified that removing the ten-year cutoff would allow individuals to  


"pursue a military career and continue to receive" a PFD.43   But because the State could  


not "single out a specific class of people [such as career military members] to get . . . one  


benefit or another," the sponsor said the proposed law would verify PFD applicants'  


"intent to return . . . after an allowable absence" by requiring them to rebut a presumption  


                     41                  Ch. 33,  3, SLA 2013.                                 

                     42                  292 P.3d 906, 912-14 (Alaska 2012).  Ross, a Marine Corps officer, was   

denied a 2009 PFD based on the ten-year provision because his military career had kept                                                                                                                                                                        

him out of state.  Id. at 908.  Following our decision upholding the denial, he testified  


before the legislature in support of repealing the ten-year cutoff and replacing it with the                                                                                                                                                                     

current version of AS 43.23.008(d).                                                                                Testimony of Brian Ross at 8:37:34, Hearing on                                                                                                  

H.B.  52 Before the H. State Affairs Standing Comm., 28th Leg., 1st Sess. (Jan. 29,  




                     43                  Testimony of Rep. Eric Feige at 8:39:38, Hearing on H.B. 52 Before the H.  


 State Affairs Standing Comm., 28th Leg., 1st Sess. (Jan. 29, 2013).  


                                                                                                                               -14-                                                                                                                        7368

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


of   nonresidence   after   five   years'   absence.                         And   by   codifying   parts   of   existing  

regulations into statute, the bill would give "more specific direction to [ALJs]."                                            45  The  


Joneses  contend  that  these  statements  and  other  hearing  testimony  demonstrate  a  


legislative intent contrary to the plain text of AS 43.23.008(d) as codified.  


                     The Joneses' argument ignores that the legislature was aware of and chose  


to  omit  the  previous  regulation's  "unavoidable  circumstances"  exception  to  the  

                                46   One goal of the 2013 amendments to the PFD statutes was clearly  


30 days/5 years rule. 

to enable military members to keep receiving PFDs during allowable absences.  But the  


sponsor's  statements  suggest  that  the  legislature  was  also  concerned  with  equal  


protection, providing clear direction to ALJs in PFD appeals, and ensuring the State's  


ability to limit PFD eligibility after long periods of absence.   The legislative history  


indicates a balanced consideration of these concerns.  As adopted, the 30 days/5 years  


rule imposes much less onerous demands than the ten-year rule, while still placing limits  


                                                                                                   47   Thus, the legislative  

on allowable absences and providing clear guidance to ALJs.                                                              


history does not support the Joneses' proposed reading of the 30 days/5 years provision  


as a flexible rather than bright-line rule.  The Department properly denied the Joneses'  


2014 PFD applications on this ground.  


           44        Id .  

           45        Id. ;  see  former   15  AAC  23.163(h)(2)  (2012).  

           46        Compare  former   15  AAC  23.163(h)(2)  (2012)  with  AS  43.23.008(d).   

           47        Compare   former   AS   43.23.008(c)   (2012)   (requiring   individual   to   be  

physically  present  in  state  for  at  least  185  days  of  qualifying  year  to  be  eligible  after  ten  

consecutive  years  of  extended  absences),  with  AS  43.23.008(d)  (requiring  only  30  days  

of  physical  presence  spread  out  over  five  years  to  qualify  after  five  consecutive  years  of  

extended  absences).  

                                                                 -15-                                                            7368

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

                                The Joneses argue that there is also some statutory ambiguity as to their                                                                                  

residency   status   for   the   2015   PFDs.     They   assert   that   following  the   2014   PFD  

proceedings, it was unclear "where [they] fell in the taxonomy of resident, nonresident,                                                                                        

or PFD-ineligible resident."                                          But as the ALJ noted, the statute clearly establishes the                                          

presumption that Jones was not a resident for PFD purposes if he could not meet both the                                                                                                              

30 days/5 years rule and the intent-to-remain element; meeting only the intent-to-remain                                                                               


element was insufficient to rebut the presumption.                                                                           

                                The Joneses seemto claim that because of their ties to Alaska, they counted  


as Alaska residents for PFD purposes and should have had an opportunity to rebut the  


nonresidence presumption for 2015. But this argument ignores that the legislature is free  


to impose different residency requirements in different contexts,49   and that intent to  


                                                                                                                                                                                    50       Under  

remain  is  a  necessary  but  not  sufficient  condition  for  PFD  eligibility.                                                                                                          


AS 43.23.008(d), once the Joneses' residency was severed by the 2014 PFD Decision,  


they were no longer residents  for PFD purposes; under AS 43.23.005(a), they were  


therefore not eligible for PFDs regardless of whether they could establish residency for  


other purposes.51                          They had to reestablish residency for "the entire qualifying year" in  


                48              AS 43.23.008(d).                           

                49              See AS 01.10.055(b) (providing that person seeking to demonstrate intent  


to remain may, if "required by law or regulation," have to maintain principal place of  


abode in Alaska for longer than default 30 days or provide additional proof of intent);  


see also Heller v. State, Dep't of Revenue, 314 P.3d 69, 81 (Alaska 2013) ("[T]he  


residency requirement for PFDeligibility maydiffer fromother residencyrequirements."  


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


                50              See AS 43.23.005(a)(1)-(7) (listing PFD eligibility requirements including  


but not limited to state residence).  


                51              See AS 43.23.005(a)(3); AS 43.23.008(d).  


                                                                                                  -16-                                                                                           7368

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


order to become eligible again.                                                                  But they did not return until November 29, 2014 - too                                                                                                   

late to be eligible for 2015 dividends. The Department correctly interpreted and applied                                                                                                                                                    

the statute in denying their 2015 applications.                                                    

                    B.	                 Alaska    Statute    43.23.008(d)    Does    Not    Create    An    Irrebuttable  

                                        Presumption Of Nonresidence That Violates Due Process.                                                                                                       

                                        The Joneses argue that AS 43.23.008(d) denies them due process under the                                                                                                                                         

Fourteenth Amendment because it creates an irrebuttable presumption of nonresidence.                                                                                                                                                                                 

The Department counters that the statute, rather than creating an invalid irrebuttable                                                                                                                                         

presumption, establishes "merely . . . a reasonable, easily administered bright-line rule."                                                                                                                                                                          

                                        The Joneses rely on the 1973 United States Supreme Court case                                                                                                                               Vlandis v.   



                        to  argue  that  AS  43.23.008(d)(1)  is  unconstitutional.                                                                                                                Vlandis dealt  with  a  


Connecticut law that charged higher tuition at its state university system for nonresident  



 students than for residents.                                                         The statute defined residency for tuition purposes either by  


a student's legal address during the year prior to his or her application, if the student was  



unmarried, or by legal address at the time of application if the student was married. 


This determination was "permanent and irrebuttable for the whole time that [a] student  


remain[ed] at the university"; a student could not apply as a nonresident, establish  



residency while enrolled, and then pay resident tuition. 

                    52	                 AS 43.23.005(a)(3).                                           

                    53                  412 U.S. 441 (1973).  


                    54                  Id.  at 442.   



                                        Id. at 442-43.  

                    56                  Id. at 443.  


                                                                                                                           -17-	                                                                                                                   7368

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

                        The Supreme Court invalidated the law, rejecting Connecticut's proffered                                           


justifications   for   its   residency   classifications.                                                                                            

                                                                                           The  Supreme  Court  held  that  the  


permanent irrebuttable presumption of nonresidence violated due process "because it  


provide[d] no opportunity for students who applied from out of [s]tate to demonstrate  

                                                                                                     58   But the Court noted that its  


that they have become bona fide Connecticut residents." 

decision was not meant to deny states the right to impose a "reasonable durational  


residency requirement" as one element of bona fide residence, provided that students  


 could meet this requirement while they were still students.59  


                        Unlike the statute in Vlandis, AS 43.23.008(d) explicitly provides a way to  


rebut the presumption of nonresidence:  a PFD applicant can do so by meeting both the  


 30 days/5 years requirement and the intent-to-remain requirement.60   The Joneses argue  


that it nevertheless "applies a permanent and irrebuttable presumption of nonresidency  


to those bona fide Alaska residents" who both were absent for more than 180 days in  


 each of the five preceding years and are unable to fulfill the 30 days/5 years rule.  The  


Department  responds  that  AS  43.23.008(d)'s  presumption  of  nonresidence  is  not  




                        Weagreewith theDepartment. Unlike the students in Vlandis, theJoneses'  


 eligibility for future PFDs is not permanently determined.  Each year, they, like other  


Alaskans, can apply for a PFD; with each application, their eligibility, like that of all  


            57          Id.  at 448-53.   

            58          Id.  at 453.   



                        Id. at 452.  

            60          AS 43.23.008(d).  


                                                                          -18-                                                                    7368

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


Alaskans, is determined anew.                              Nothing prohibits the State from imposing reasonable                         


residency requirements on individuals seeking to establish bona fide residence.                                                                    The  


Supreme  Court  in  Vlandis  specifically  distinguished  Connecticut's  statute  from  a  


Minnesota law it had previously upheld, which allowed students to qualify for state- 

                                                                                                                                               63  The  


resident tuition after being "a bona fide domiciliary of the State for at least a year." 

PFD statutes are similar to the Minnesota law:   rather than leaving the Joneses "no  


opportunity . . . to demonstrate that they have become bona fide [Alaska] residents,"64  


the statutes allow them to regain eligibility after one year.65   The Joneses have done just  


that, reestablishing residency for the 2015 qualifying year and receiving 2016 PFDs.  


Because AS 43.23.008(d)'s presumption of nonresidence does not permanently bar  


applicants from receiving PFDs, it does not create an invalid irrebuttable presumption  


and does not violate due process.  


            C.	         Alaska Statute 43.23.008(d) Does Not Violate The Right To Travel  


                        Under The Privileges And Immunities Clause.  


                        The Joneses next argue that AS 43.23.008(d) impermissibly restricts their  


constitutional right to travel as protected by the Fourteenth Amendment's privileges and  


            61          See   AS 43.23.005(a) (setting eligibility requirements to receive a PFD                                                  

"each year").   

            62	         See Vlandis, 412 U.S. at 452.  


            63          Id.  at 452 n.9 (citing  Starns v. Malkerson,  401 U.S. 985, 985 (1971),  


summarily aff'g 326 F.Supp. 234 (D. Minn. 1970)).  


            64          Id. at 453.  


            65          See  AS 43.23.005(a)(3) (requiring an individual to have been "a state  


resident during the entire qualifying year" to be eligible for a PFD); AS 01.10.055(a)  


(providing that a person establishes Alaska residency "by being physically present in the  


state with the intent to remain . . . indefinitely").  


                                                                          -19-	                                                                   7368

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

                                                                   66                                                                            67  

immunities clause.                Citing  Saenz v. Roe                and  Heller v. State, Department of Revenue                               ,  


they contend that AS 43.23.008(d) should be subject to strict scrutiny and that it imposes  


an  unconstitutional  durational  residency  requirement.                                         The  Department  argues  that  

                                                                        68  and that AS 43.23.008(d) is valid because  



rational basis review applies under Heller 

it directly advances the legitimate state interests of ensuring only bona fide Alaska  


residents receive PFD payments and preventing fraud.  


                       Saenz dealt with a California statute that capped welfare benefits for any  


family that had resided in the state for less than 12 months at the amount payable by the  


family's previous state of residence.69   The Supreme Court found that this implicated the  


right to travel - specifically, the right of "travelers who elect to become permanent  


residents [of a state] . . . to be treated like other citizens of that [s]tate."70   The Court held  


that heightened scrutiny applied, rejected California's "entirely fiscal justification" for  


the durational classification, and invalidated the statute on the ground that the Fourteenth  



Amendment "does not allow for[] degrees of citizenship based on length of residence."                                                                


                       But in Heller we distinguished the PFD program from the welfare benefits  



at stake in Saenz.                   Heller  involved a constitutional challenge to subsection (b) of  


AS 43.23.008, which requires PFD applicants to reside in the state for six consecutive  


           66          526 U.S. 489 (1999).       



                       314 P.3d 69 (Alaska 2013).  



                       Id. at 82.  



                       Saenz, 526 U.S. at 492.  



                       Id. at 500, 502.  



                       Id. at 504, 506.  

           72          Heller, 314 P.3d at 79 (citing                     Saenz, 526 U.S. at 505).                   

                                                                      -20-                                                                 7368

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


months   before   they   can   claim   an  allowable   absence.                                             Like   the   Joneses   with   the  

30   days/5   years   rule,   Heller   characterized   the   six-month   rule   as   an   impermissible  

                                                                                                                        74   But we noted that  

durational residency requirement infringing on his right to travel.                                                                                    

"not all residency requirements are constitutionally infirm."75  The constitutionality of  


a residency requirement turns on its purpose - that is, whether it "was designed to  


establish the bona fides of a person's intent to remain in the state."76   Thus, requirements  


aimed at distinguishing residents from nonresidents will more likely pass constitutional  


muster than those aimed at distinguishing new residents from established ones.77  


                        We held that the six-month requirement in Heller was a bona fide residency  


requirement.78  It aims to prevent abuse of the PFD program by people who do not intend  


to  stay  in  Alaska  but  who  may  be  in  the  state  for  just  long  enough  to  establish  


                   79      And  while  Saenz  might  seem  to  subject  all  durational  residency  


requirements to heightened scrutiny, the Supreme Court in fact "carefully distinguished  


            73          Id.  at 77; AS 43.23.008(b).       



                        Heller, 314 P.3d at 77.  Heller grounded his right-to-travel claim on equal  

protection rather than the privileges and immunities clause.                                                     Id.    But on at least one            


occasion we have suggested that a privileges-and-immunities challenge to a physical- 


presence requirement for the PFD would be "unavailing."  Schikora v. State, Dep't of  

Revenue, 7 P.3d 938, 946 n.30 (Alaska 2000) (addressing the 180-day limit on absences                                                                           


in the qualifying year and noting that any "burden" of physical presence was "borne  


equally by all [PFD] applicants, regardless of . . . previous state citizenship").  

            75          Heller, 314 P.3d at 78.  


            76          Id.  

            77          See id. (citing Williams v. Zobel, 619 P.2d 448, 451 n.7 (Alaska 1980)).  


            78          Id. at 81-82.  


            79          Id. at 80.  


                                                                           -21-                                                                     7368

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


cases . . . where the challenged statute is designed to verify bona fide residency."                                                                                                        Saenz  

did not disturb the validity of previous cases applying less stringent standards of review                                                                                                


to residency requirements distinguishable from California's.                                                                                       




                               We therefore held that rational basis review applied to the six-month rule. 

We noted that PFDs, as "highly portable cash benefit[s]," are "particularly susceptible  


to  passers-through  establishing  minimal  ties  to  Alaska  while  intending  to  reside  


elsewhere."83  Under these circumstances we found that six months was not too long a  


residency requirement toensurePFDclaimantsarebonafideresidents beforethey depart  


the state.84   We therefore upheld the rule as advancing the legitimate interest of limiting  


PFD benefits to permanent Alaska residents.85  


                80             Id.   at 82 (citing                     Saenz v. Roe                    , 526 U.S. 489, 505 (1999) (declining to                                                      

consider "what weight might be given to a citizen's length of residence if the bona fides                                                                                                      

of her claim to state citizenship were questioned")).                                   

                81             See,  e.g.,  Sosna  v.  Iowa,  419  U.S.  393,  409-10  (1975)  (upholding  as  


reasonable Iowa's one-year residency requirement for filing a divorce action);  Vlandis  


v. Kline, 412 U.S. 441, 452 (1973) (noting that Court's invalidation of Connecticut's  


residency-based tuition scheme did not prohibit states from imposing, "as one element  


in demonstrating bona fide residence, a reasonable durational residency requirement");  


Starns v. Malkerson, 326 F. Supp. 234, 238-41 (D. Minn. 1970) (applying rational basis  


review to uphold one-year residency requirement for in-state tuition), aff'd summarily  


by Starns v. Malkerson, 401 U.S. 985, 985 (1971).  


                82             Heller, 314 P.3d at 82.  


                83             Id. at 79. The Supreme Court in Saenz acknowledged the relevance of this  


kind of susceptibility:  it specifically distinguished welfare benefits, which would be  


consumedwithinCalifornia, froma"readily portablebenefit"thatmight attractclaimants  


from out of state with questionable bona fides of residency.  Saenz, 526 U.S. at 505.  


                84             Heller, 314 P.3d at 80.  


                85             Id. at 82 & n.72.  


                                                                                                -22-                                                                                          7368

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

                          The Joneses argue that the 30 days/5 years rule is not designed to assess                                                    

bona fide residence based on intent to remain because its physical-presence requirement                                                           

ignores other evidence of residency - such as the Joneses' ties to the state.                                                                           But this   

argument   ignores   that   the   State   is   free   to   define   residency   differently   for   different  

purposes.  The statutes explicitly contemplate this:  AS 43.23.295(7)                                                                 86 defines a "state  

resident" for PFD purposes as someone "physically present in the state with the intent  


to remain indefinitely . . . under the requirements of AS 01.10.055."  And AS 01.10.055  


provides that a person demonstrates the intent to remain "by maintaining a principal  


place of abode in [Alaska] for at least 30 days or for a longer period if . . . required by  


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


regulation."87                  The  intent-to-remain  requirement  is  therefore  properly  applied  in  


conjunction  with  other  PFD-specific  residency  requirements.                                                                 And  we  have  held  


repeatedly  that  residency  requirements  for  PFD  purposes  "may  differ  from  other  


                                                 88                                                                                                        89    and  

                                                       and  may  include  physical-presence  requirements                                                       

residency  requirements"                                                                                                         



eligibility cutoffs after extended absences.                                            


             86           Formerly  AS   43.23.095(7),   renumbered   as   AS   43.23.295(7)   in   2018.   

See  Revisor's notes, AS 43.23.295.              

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


             88           Heller,  314  P.3d  at  81  (quoting  Schikora  v.  State,  Dep't  of  Revenue,  


7 P.3d 938, 942 (Alaska 2000)); accord Church v. State, Dep't of Revenue, 973 P.2d  


 1125, 1129 (Alaska 1999) (quoting Brodigan v. State, Dep't of Revenue, 900 P.2d 728,  


733 n.12 (Alaska 1995)).  


             89           See Schikora, 7 P.3d at 944-45 (upholding rule requiring PFD claimants to  


be physically present in state for at least 185 days during qualifying year).  


             90           See Ross v. State, Dep't of Revenue, 292 P.3d 906, 913-14 (Alaska 2012)


(upholding  former  AS  43.23.008(c)'s  rule  cutting  off  PFD  eligibility  after  ten



                                                                                -23-                                                                           7368

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

                              A physical-presence requirement is a reasonable way to distinguish bona                                                                                   

fide   residents   who   are   allowably   absent   from   residents   of   other   states   who   are  

temporarily living in Alaska - particularly given that "Alaska's economy is a magnet                                                                                              

for seasonal workers and other visitors" and the PFD is a portable, once-a-year cash                                                                                                     

                     91       The  30  days/5  years  rule  is  far  less  burdensome  than  the  previous  


requirement we upheld in Ross that an applicant must be present in the state for 185 days  


after a ten-year absence in order to establish PFD eligibility.92                                                                            It requires merely that a  


PFD applicant be in the state for 30 cumulative days over five years - i.e., that the  


applicant spend less than 2% - or less than one week a year - of the preceding five  


years in Alaska.  This requirement applies equally to all PFD applicants with prolonged  


allowable absences; it does not distinguish according to length of residence in Alaska or  


the applicant's previous state of residence. We therefore conclude that AS 43.23.008(d)  


does not impose an impermissible durational residency requirement or infringe upon the  


right to travel under the privileges and immunities clause.  


               D.             Alaska Statute 43.23.008(d) Does Not Violate Equal Protection.  


                              The Joneses argue that AS 43.23.008(d) violates the Alaska Constitution's  


               90             (...continued)  


consecutive years with more than 180 days' absence in each year).  

               91             Heller, 314 P.3d at 79-80;                                    see also            STATE OF              ALASKA, D                  EP 'T OF         LABOR  

&   WORKFORCE                             DEV.,   NONRESIDENTS                                   WORKING                   IN      ALASKA:   2017   1                              (2019),   

                                                                                                                                                                  (finding that nonresidents accounted                                                                                    

for 20.9% of Alaska workers).                   

               92             See former AS 43.23.008(c) (requiring applicant be physically present in  


Alaska for at least 185 days during qualifying year if applicant had been absent for more  


than 180 days in each of the preceding ten years); Ross, 292 P.3d at 908, 913-14.  


                                                                                             -24-                                                                                       7368

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


guarantee of equal rights, opportunities, and protection                                                  by denying them an equal              

opportunity to present evidence of bona fide residence.                                            They also argue that it violates           


federal equal protection because it fails rational basis review under                                                  Zobel v. Williams              .    


The  Department  responds  that  AS  43.23.008(d)  survives  rational  basis  review  and  


therefore does not violate either state or federal equal protection.  


                        1.	        Alaska   Statute   43.23.008(d)   does   not   violate   the   Alaska  


                                    Constitution's equal protection clause.  


                        Article I, section 1 of the Alaska Constitution provides that "all persons  


are . . . entitled to equal rights, opportunities, and protection under the law." Our flexible  


"sliding scale" test for equal protection claims involves a three-step analysis:  


                        First,  we  determine  what  weight  should  be  afforded  the  


                        constitutional interest impaired by the challenged enactment.  


                        The nature of this interest is the most important variable in  


                        fixing the appropriate level of review.  Second, we examine  


                        the purposes served by a challenged statute.  Depending on  


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


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


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


                        legislation  was  motivated  by  a  compelling  state  interest.  


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



                        means employed to further its goals must be undertaken. 

The  Joneses  argue  that  their  PFD  claims  implicate  "  'equal  rights'  and  'equal  


opportunities'  [that]  are  broader"  than  equal  protection;  they  seem  to  imply  that  


heightened scrutiny applies as a result.  


            93          Alaska  Const.  art.  I,     1.   

            94          457  U.S.  55  (1982).   

            95         Ross,  292  P.3d  at  909-10  (quoting  Harrod  v.  State,  Dep't  of  Revenue,  255  

P.3d  991,   1001  (Alaska  2011)).   

                                                                         -25-	                                                                   7368

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

                          But we have repeatedly noted that the PFD is merely an economic interest                                                        


that receives minimal scrutiny under our equal protection analysis.                                                                                  

                                                                                                                                             We therefore  


consider  only  whether  the  30  days/5  years  rule  serves  a  legitimate  governmental  


objective  and  whether  it  bears  a  fair  and  substantial  relationship  to  achieving  that  

                   97    The Department argues that the statutes governing PFD eligibility serve  


multiple  legitimate  purposes:                                encouraging  Alaska  residency,  reducing  population  


turnover, and encouraging greater awareness and involvement by Alaska residents in the  


management of thePermanent Fund. The Department further argues that statutes "aimed  


at improving the efficiency of and simplifying the PFD program" are legitimate.  


                          We agree; AS 43.23.008(d) serves multiple legitimate purposes, including  


deterring abuse of the PFD program, ensuring that a benefit conferred by the State goes  


only to bona fide residents, and simplifying the eligibility requirements that ALJs must  


apply.98   The "fair and substantial relationship" test does not require a perfect means-to- 


end fit and does not require the 30 days/5 years rule to be "perfectly fair to every  


                                                                99   It is also significant that the burden imposed by the  

individual to whom it is applied."                                                                                                                                


30 days/5 years rule is minimal.100   It requires merely that an applicant spend an average  


             96           Heller, 314 P.3d at 83 (citing                          Church v. State, Dep't of Revenue                                 , 973 P.2d     

 1125, 1130 (Alaska 1999));                            accord Ross             , 292 P. 3d at 910 (quoting                          Harrod, 255 P.3d   

at 1001).          

             97           See Ross, 292 P.3d at 910; Church, 973 P.2d at 1130 (quoting Underwood  


v. State, 881 P.2d 322, 325 (Alaska 1994)).  


             98           See Testimony of Rep. Eric Feige at 8:39:38, Hearing on H.B. 52 Before  


the H. State Affairs Standing Comm., 28th Leg., 1st Sess. (Jan. 29, 2013).  


             99           Ross, 292 P.3d at 910 (quoting Harrod, 255 P.3d at 1001).  


             100          See Heller, 314 P.3d at 83 ("[T]hat the PFD is an economic interest that  



                                                                                -26-                                                                          7368

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

of six days per year in Alaska and allows PFD applicants substantial flexibility over how                                                                                      

they   distribute   that   time.     In   this   context,   we   find   that   the   rule   bears   a   sufficient  

relationship to the aims it serves to satisfy Alaska's equal protection clause.                                                                   

                            2.	           Alaska   Statute   43.23.008(d)   does   not   violate   federal   equal  


                            Wehavenoted thatAlaska'ssubstantialrelationshipstandard,                                                                       theminimum   

protection we afford in equal protection claims, requires a closer means-to-end fit than                                                                                      


federal rational basis review.                                                                                                                                               

                                                                   The Joneses nevertheless argue that the 30 days/5 years  



rule violates federal equal protection under  Zobel v. Williams.                                                                                 That case applied  


rational basis review to a PFD distribution scheme that based individuals' dividend  



amounts on the length of each individual's state residence.                                                                       The State advanced three  


purposes for the statute:  first, to create an incentive for people to establish and maintain  


Alaska residency; second, to encourage "prudent management of the Permanent Fund";  


and third, to award benefits based on "contributions . . . residents have made during their  

                                          104    The Supreme Court found that the first two objectives were not  


years of residency." 

              100           (...continued)  


does not usually warrant strict scrutiny . . . is not the only factor in the analysis.  It is  


important that the burdens on the alleged rights in this case are minimal.").  

              101           See, e.g., Matanuska-Susitna Borough School Dist. v. State, 931 P.2d 391,  


402 (Alaska 1997).  


              102	          457 U.S. 55 (1982).  


              103           Id. at 56.  The statute awarded PFD recipients one "dividend unit for each  


year of residency subsequent to 1959, the first year of statehood."  Id. at 57.  


              104	          Id. at 61 (internal quotations omitted).  


                                                                                       -27-	                                                                                 7368

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


rationally related to the statute's distinctions between newer and older residents,                                                                   and  


that the third objective was not a legitimate state purpose.                                                                                            

                                                                                                                 It therefore held that the  


statuteviolated theFourteenthAmendment's equalprotection clauseunder rational basis  


                        Alaska Statute 43.23.008(d) is easily distinguished fromthe statute at issue  


in Zobel.   It makes no distinctions based on length of residence.   Rather, it imposes  


equally on all residents a requirement that they maintain minimal physical presence in  

Alaska if they are claiming extended allowable absences.108                                                   It is sufficiently related to  


the ends it serves to survive an equal protection challenge under our substantial relation  


test and is therefore valid under federal rational basis review as well.109  


            E.	         Alaska Statute 43.23.008(d) Is Not An Unconstitutional Ex Post Facto  



                        The Joneses argue that the 30 days/5 years rule is an unconstitutional ex  


post facto law.   Relying on  Underwood v. State, they argue that we should apply a  


"fairness and reasonableness" test and find that the statute "unfairly impinges upon their  


            105	        Id.  

            106         Id.   at   63   (citing   Shapiro   v.   Thompson,  394  U.S.   618,   632-33   (1969)  

(rejecting   a   similar   "past   contributions"   rationale   for   differential   welfare   benefits),  

overruled in part on other grounds by Edelman v. Jordan                                               , 415 U.S. 651, 670-71 (1974)).           

            107	        Id. at 65.  


            108	        AS 43.23.008(d)(1).  


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


("[A]nalysis of equal protection claims under the federal constitution is, if anything,  


more forgiving than the approach we use under the . . . Alaska Constitution.").  


                                                                           -28-	                                                                    7368

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


 settled expectations."                                                     The Department responds that the 2013 amendments merely                                                                                                                    

 codified existing regulations, albeit without the "unavoidable circumstances" exception;                                                                                                                                                    

the   Department   further   argues   that   because   the   legislature   explicitly   stated   that  

AS 43.23.008(d) would not affect eligibility for 2013 PFDs, it did not "unfairly or                                                                                                                                                    


unreasonably impinge upon any property rights or settled expectations."                                                                                                                                                                    

                                          The Joneses' ex post facto argument lacks merit; the prohibition on ex post  


 facto laws is irrelevant here.   Since  Underwood we have clarified that the state and  


 federal ex post facto clauses apply only to penal statutes:  


                                          Ex post facto prohibitions "bar the legislature from enacting  


                                          any law that punishes as a crime an act previously committed,  


                                          which   was   innocent   when   done;   which   makes   more  


                                          burdensomethepunishment for acrime,after itscommission;  


                                          or which deprives one charged with a crime of any defense  


                                          available  according  to  law  at  the  time  when  the  act  was  



                     110                  See Underwood v. State                                                   , 881 P.2d 322, 327-28 (Alaska 1994). In that case                                                                                           

we upheld a 1992 amendment to the PFD statutes requiring applicants for 1993 PFDs to                                                                                                                                                                                    

 show Alaska residency as of January 1, 1992.                                                                                                      Id.   The previous statute had required                                                         

residency   as   of   April   1,   1992;   the   Underwoods   moved   to   Alaska   in   March  1992,  

 expecting to qualify for the 1993 PFD, and raised an ex post facto challenge when they                                                                                                                                                                         

 did not qualify.                                   Id.   at 324.                           Applying a "vested rights" analysis, we found that no                                                                                                                    

Alaskan, let alone the Underwoods, had a vested right to a 1993 PFD as of March 1992.                                                                                                                                                                                          

Id.  at 327;                      see also Church v. State, Dep't of Revenue                                                                                                , 973 P.2d 1125, 1131 (Alaska                                            

 1999) ("An applicant has no vested property right in a [PFD] and should not expect to                                                                                                                        

receive a dividend if he doesn't meet the qualifications."). We also found that even if the                                                                                                                                                                      

proposed "fairness and reasonableness" test were applied, the Underwoods would not                                                                                                                                                                                 

 qualify for 1993 PFDs.                                                    Underwood, 881 P.2d at 327-28.                                                 

                     111                   Underwood, 881 P.2d at 328.  


                     112                 Pfeifer v. State, Dep't of Health &Soc. Servs., Div. of Pub. Assistance, 260  


P.3d 1072, 1081 n.43 (Alaska 2011) (quoting Doe v. State, 189 P.3d 999, 1003 (Alaska  



                                                                                                                                 -29-                                                                                                                         7368

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

The legislature in passing AS 43.23.008(d) did not criminalize a previously lawful act,                                                          

retroactively increase a sentencing range, or deprive anyone facing criminal prosecution                                           

of   a   defense;   it   merely   adjusted   eligibility   requirements   for   an   economic   benefit  

                                       113   The bar on ex post facto laws therefore has no bearing on the  

conferred by the State.                                                                                                                           

purely civil PFD claims raised here.  


            F.	        Our  Equitable  Powers  Do  Not  Extend  To  Awarding  PFDs  In  


                       Contravention Of A Valid, Unambiguous Statute.  


                       The Joneses, citing AS 22.05.020, finally exhort us to use our equitable  


powers to award them 2014 and 2015 PFDs.114  


                                                                                   The Department responds that doing so  


would improperly ignore laws that the legislature validly enacted after extensive public  


comment and debate, and that granting the Joneses a "special, non-statutory exception"  


would frustrate the PFD program's goal of equitably distributing part of the state's  


energy wealth according to consistent eligibility requirements.  


                       Our  equitable  powers  do  not  go  so  far  as  to  authorize  us  to  directly  


contravene statutes passed by the legislature. Alaska Statute 22.05.020(b) empowers us  


to execute our judgments "according to . . . the laws of the state"; it gives us no power  

                                                                                                                           115    The Alaska  


to issue judgments  despite  those  laws,  as the Joneses ask us to do. 

Constitution provides for the separation of powers, vesting "legislative power in the  


            112        (...continued)  


2008) (internal quotations omitted)); accord Dobbert v. Florida, 432 U.S. 282, 292  



            113	       AS 43.23.008(d); ch. 33,  2, SLA 2013.  


            114        AS 22.05.020(b) provides:  "The supreme court is vested with all power  


and authority necessary to carry into complete execution all its judgments, decrees, and  


determinations in all matters within its jurisdiction, according to the constitution, the  


laws of the state, and the common law."  


            115	       Id. (emphasis added).  


                                                                        -30-	                                                                 7368

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


legislature; executive power in the governor; and judicial power" in the courts.                                                                                                                                                               The  

legislature duly enacted AS 43.23.008(d); the executive, in this case the Department,                                                                                                                                   

enforced it. Given that we find AS 43.23.008(d) constitutional, we will not encroach on                                                                                                                                                               

the roles of the other branches of government by awarding the Joneses PFDs for which                                                                                                                                                       

they are not eligible under the statute.                                                  

V.                  CONCLUSION  

                                       Because AS 43.23.008(d)  is unambiguous, was not misapplied  by  the  


Department, and does not violate either the Alaska or the United States Constitution, and  


because we decline to exercise our equitable powers in contravention of a duly enacted  


statute, we AFFIRM the Department's denials of the Joneses' applications for 2014 and  


2015 PFDs.  


                    116                Alaska Pub. Interest  Research  Grp. v. State,  167 P.3d  27, 35  (Alaska  2007).  

                                                                                                                         -31-                                                                                                                             7368  

Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights