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THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, Department )
of Revenue, )
) Supreme Court Nos. S-9329/9339
) Superior Court No.
v. ) 3AN-98-3398 CI
MARTHA ANDRADE (Barahona) and )
BELLY WILLMAN BARAHONA, ) O P I N I O N
individually, and for their )
minor children JONATHAN ) [No. 5414 - May 25, 2001]
BARAHONA and WILLMAN BARAHONA;)
SHELLY EDWARDS-PIGEON and )
CHRISTOPHER PIGEON, )
individually and for their )
minor children, JESSICA )
EDWARDS-PIGEON and ZOE )
EDWARDS-PIGEON; JANNA )
LELCHUK, individually and for )
her minor children, ANDREI )
KHMELEV and ANTON KHMELEV; )
ALEXANDER LADUTKO; YA HADDY )
TOURAY and ADANAN TOURAY, )
individually and for their )
minor children, HAITA TOURAY, )
MUFA TOURAY, YAGGA TOURAY and )
BINTOU TOURAY; and the )
foregoing as representatives )
of the class, )
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Eric T. Sanders, Judge.
Appearances: Stephen C. Slotnick, Assistant
Attorney General, and Bruce M. Botelho, Attorney General, Juneau,
for Appellant/Cross-Appellee. Margaret D. Stock and Jeffrey Scott
Moeller, Stock & Moeller, Anchorage, for Appellees/Cross-
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
We addressed the constitutionality of exclusion of
illegal aliens from permanent fund dividend (PFD) eligibility in
State, Department of Revenue, Permanent Fund Dividend Division v.
Cosio. [Fn. 1] We suggested in Cosio that there may be a class of
legal aliens that has a valid constitutional challenge as to
eligibility for a permanent fund dividend. This case presents that
challenge and asks whether the language of AS 43.23.005(a)(5)(B),
which restricts alien PFD eligibility to those who are "lawfully
admitted for permanent residence in the United States," constitutes
a violation of the Supremacy Clause and federal and state Equal
Martha Andrade, Belly Willman Barahona, and their two
children were denied PFDs in 1996 because the Department of Revenue
(department) determined that Andrade and Barahona could not legally
form the intent to remain in Alaska indefinitely based on their
immigrant status. They appealed the denial and, at the same time,
commenced a class action challenging the constitutionality of the
PFD eligibility statute, AS 43.23.005(a).
As to the constitutional challenges, we conclude that the
alien eligibility requirement of AS 43.23.005(a)(5)(B) is
constitutional because the department has the authority to
interpret the statutory language in a manner that meets the
purposes of the PFD program and that comports with federal law. We
therefore reverse the superior court's decision on this issue.
However, it is undisputed that the now-repealed
implementing regulation that was in effect when this action was
commenced was unconstitutional. We therefore affirm the superior
court's grant of summary judgment to the class insofar as it
enjoined any conduct that improperly excluded otherwise eligible
The state challenges the dismissal of its defense that
the class failed to exhaust administrative remedies. Because it
would have been futile for class members to apply for a PFD, we
hold that the superior court did not abuse its discretion when it
dismissed the exhaustion of administrative remedies defense. The
state also challenges the superior court's certification of the
class. We conclude that the requirements of class certification
were satisfied in this case and that the superior court did not
abuse its discretion in allowing this matter to proceed as a class
Finally, the class challenges the superior court's
rejection of its claim that the eligibility requirement for legal
aliens amounts to national origin discrimination under the Alaska
Human Rights Act. Because any exclusion of legal aliens is based
on their ability to form the requisite intent to remain rather than
on the country of the applicants' or their ancestors' origin, we
affirm the superior court's denial of the class motion for summary
judgment on the national origin discrimination claim.
II. FACTS AND PROCEEDINGS
This matter involves various named plaintiffs who are
aliens legally present in the United States and currently residing
1. The Andrade/Barahona family
Martha Andrade was born in Mexico and entered the United
States as a nonimmigrant visitor in 1991. She was authorized to
stay in the United States until July 13, 1991, but stayed beyond
that date. Andrade moved to Alaska in 1994. She has been a lawful
permanent resident of the United States since June 30, 1995.
Belly Willman Barahona is Andrade's husband. He entered
the United States in 1988 and filed for asylum in 1993. He moved
to Alaska in 1994 and had not been granted asylum or permanent
resident status at the time he applied for the 1996 PFD.
Willman and Jonathan Barahona are the sons of Andrade and
Barahona. Willman was born in California in 1991; Jonathan was
born in Alaska in 1994.
2. Other class members
The remainder of the named plaintiffs are legal aliens,
or children of legal aliens, residing in Alaska. Some have sought
asylum; others have valid visas. Some of the children were born in
the United States. Like the Andrade/Barahona family, these
plaintiffs have either had their permanent fund applications denied
based on their immigrant/nonimmigrant status or were ineligible.
1. The Andrade/Barahona 1996 PFD application and
appeal to the Department of Revenue
The Andrade/Barahona family (Andrade family) applied for
PFDs in 1996 but their applications were denied. [Fn. 2] Andrade's
application was denied because she was not a resident alien with
permanent status before January 1, 1995. Belly Barahona's
application was denied because he was not granted permanent
resident status, refugee status, or asylum before January 1, 1995.
The children's applications were denied because their sponsor,
Andrade, was found ineligible for the dividend. The family
requested informal conference appeals of their denials; the denials
The Andrade family appealed the informal conference
decisions to the department. The Permanent Fund Division
(division) of the Department of Revenue filed a motion for summary
adjudication, which was granted. The division argued that under AS
43.23.005(a)(5) and its implementing regulations, the family
members were unable to receive dividends. The Andrade family
argued that the denials violated both the United States and the
The department upheld the denial of the dividends.
Regarding the family's constitutional challenges, the hearing
examiner stated that he did "not have the authority to declare
state law invalid. The Applicants will have to pursue their legal
argument[s] in court." The Senior Revenue Hearing Examiner adopted
the decision of the hearing examiner.
2. The superior court proceedings
Andrade and Barahona filed a combined "Complaint for
Declaratory and Injunctive Relief and Damages and Appeal of Final
Administrative Decision" in the superior court on behalf of
themselves, as representatives of their children, and as
representatives of the class. The complaint alleged that the
department's denial of the family members' 1996 permanent fund
applications violated the Equal Protection Clause of both the
United States and Alaska Constitutions, as well as the Supremacy
Clause of the United States Constitution. On behalf of the class,
Andrade and Barahona alleged that the department "has
systematically discriminated in favor of certain categories of
United States citizens over other categories of United States
citizens; and has systematically discriminated in favor of certain
categories of legal aliens over other categories of legal aliens."
The complaint asserted that such "actions are illegal and
unconstitutional in that they are inconsistent with the federal
government's plenary power over matters of immigration and
naturalization, and constitute a violation of the Equal Protection
Clauses of both the Alaska and the United States Constitutions and
the Supremacy Clause of the United States Constitution."
The complaint asked for the following relief: (1) a
declaration that the relevant actions of the department are
illegal; (2) a preliminary and/or permanent injunction ordering the
cessation of such illegal conduct; (3) an award of damages in an
amount to be proved at trial; and (4) attorney's fees, costs, and
interest. The complaint also asserted that a class should be
certified consisting of aliens legally "present in the United
States who have been denied, or have been deemed ineligible for,
Permanent Fund Dividends based on their alien status and all U.S.
citizens who have been denied, or been deemed ineligible for,
Permanent Fund Dividends based on the alien status of their parents
a. The October 14, 1998 superior court order
certifying the class and entering partial summary judgment
The state filed a motion for partial summary judgment,
arguing that all parties, except the Andrade family, should be
dismissed from the action because the other parties either waived
their interests or failed to exhaust their administrative remedies.
As such, the state argued that Andrade's request for class
certification should be denied. The state also argued that only
prospective relief should be available.
Andrade later filed a motion to certify the class and a
cross-motion for partial summary judgment on the failure to exhaust
and prospective relief issues.
Superior Court Judge Michael L. Wolverton issued an order
that certified the class and entered partial summary judgment in
favor of the plaintiffs. Judge Wolverton found that the class met
each of the requirements of Civil Rule 23(a), and certified the
matter as a class action under Civil Rule 23(b)(1)(B) and (b)(2).
The class was certified to consist "of all persons lawfully
residing in Alaska, who are or in the past have been otherwise
qualified to receive a PFD, but who were denied or otherwise
ineligible to receive a PFD because of their (or in the case of
minors, their sponsor's) alienage." The class as certified did not
include any illegal aliens.
Judge Wolverton also entered partial summary judgment:
(1) dismissing the state's claim that the class failed to exhaust
administrative remedies, stating that "[t]he court finds that the
plaintiffs were facially ineligible for PFDs and that pursuing the
application process could not have changed that outcome"; and (2)
"dismissing the State's request for purely prospective relief."
The superior court denied the state's motion for
reconsideration. We denied the state's petition for review without
b. The July 21, 1999 superior court order
granting partial summary judgment
The Andrade class moved for summary judgment in March
1999, seeking to have AS 43.23.005(a)(5) declared unconstitutional
and its enforcement enjoined. The class also sought retroactive
relief for national origin discrimination under the Alaska Human
Rights Act. [Fn. 3]
The state filed a cross-motion for summary judgment,
again arguing that the lawsuit was functionally an administrative
appeal, and that the case should be dismissed because the
plaintiffs had failed to exhaust their administrative remedies. On
July 21, 1999, Superior Court Judge Eric T. Sanders granted partial
summary judgment to the Andrade class. The relevant superior court
rulings are described briefly.
i. Supremacy Clause
First, the superior court concluded that under the
Supremacy Clause, a state cannot determine which legal aliens have
the requisite intent to remain in the United States in a manner
that conflicts with federal authority in this area. The court
found that AS 43.23.005(a)(5) excludes certain legal aliens from
PFD eligibility "on the basis that their immigration status is
inconsistent with having the requisite intent to remain an Alaska
resident indefinitely." The superior court then concluded that the
statute conflicted with the Supremacy Clause and enjoined the state
"from enforcing the statute as well as any regulations that prevent
legal aliens from being eligible for a PFD, unless the federal
government has precluded that category of aliens from forming the
intent to remain in the United States."
ii. Equal protection
Next, the superior court ruled that the statute violated
the Equal Protection Clauses of both the United States and the
Alaska Constitutions. The court noted that alienage is a suspect
class that triggers strict scrutiny under the federal constitution
and heightened scrutiny under Alaska law. Because the state did
not articulate a compelling interest, the court concluded that the
statute violated both the United States and Alaska Constitutions.
iii. National origin discrimination
The court concluded that the PFD eligibility statute, AS
43.23.005(a)(5), did not facially discriminate on the basis of
national origin, but rather on the basis of citizenship. Because
the court found that the statute does not discriminate against a
category protected in AS 18.80.255, the court concluded that the
plaintiffs are not entitled to either damages or back dividends.
c. Motion for attorney's fees
The class moved for an award of attorney's fees "between
$115,144.20 and $259,074.45," stating that these figures
constituted 120% and 270% of the class's actual fees, respectively.
The state notes that this motion was pending in the superior court
at the time of this appeal.
3. This appeal
The state appeals (1) the dismissal of the failure to
exhaust administrative remedies defense, (2) class certification,
and (3) the constitutional rulings. The class cross-appeals the
ruling on national origin discrimination.
III. STANDARD OF REVIEW
We review for abuse of discretion a superior court's
decision regarding whether a party has exhausted the administrative
remedies available or whether that party's failure to exhaust
remedies should be excused. [Fn. 5] However, "the court's
determination whether the doctrine of exhaustion of administrative
remedies applies to a particular action is a question of law, which
we review de novo." [Fn. 6] A grant of summary judgment is
reviewed de novo. [Fn. 7]
We have not previously decided the standard for reviewing
a court's certification of a class. The class asserts that class
certifications are subject to abuse of discretion review; the state
suggests that such certifications are subject to de novo review.
We have used the abuse of discretion standard in reviewing class
action decisions in our review of a superior court's decision on a
motion to amend a class certification order to redefine the class,
[Fn. 8] and in reviewing a superior court's approval of a class
action settlement under Civil Rule 23(e). [Fn. 9] The language of
Alaska Rule of Civil Procedure 23 is discretionary, providing that
"[a]n action may be maintained" when the rule's requirements are
met. [Fn. 10] In addition, the Alaska class action rule is almost
identical to the federal rule. [Fn. 11] Under the federal
standard, a district court's decision to certify a class is
reviewed for an abuse of discretion. [Fn. 12] All of these factors
lead us to conclude that we should review the decision to grant or
deny class certification under the abuse of discretion standard.
We apply our independent judgment to questions of
constitutional law [Fn. 13] and review de novo the construction of
the Alaska and federal Constitutions. [Fn. 14] The interpretation
of statutes is reviewed de novo and we adopt the rule of law "that
best reflect[s] precedent, reason, and policy." [Fn. 15]
A. The Superior Court Did Not Err When It Dismissed the
State's Failure to Exhaust Administrative Remedies Defense.
The state objects to the appeal process used by the
Andrade family and to the dismissal of the state's defense that the
class failed to exhaust administrative remedies.
1. The Andrade/Barahona appeal was procedurally proper
as a declaratory judgment action.
The state contends that the Andrade family's appeal was
procedurally flawed by its failure to file a notice of appeal or a
statement of points on appeal in the superior court. [Fn. 16] The
state also argues that one action cannot be both an administrative
appeal and a complaint for damages. It contends that the actions
must be filed separately, after which the plaintiffs could have
moved to consolidate if desired. Failure to file separately was "a
flouting of the rules of procedure."
The Andrade family responds that it did file a timely
appeal of the department's decision in the superior court. And the
class contends that its action was a direct class action in which
it sought declaratory judgment as to the constitutionality of AS
43.23.005(a) and the statute's implementing regulations. Thus,
both the Andrade family and the class argue that appellate
procedures were unnecessary.
The superior court record does not contain a notice of
appeal or a statement of points on appeal. However, once the
matter was before the court as an original class action challenging
the constitutionality of a statute, the class was not required to
submit these documents. As an appeal of an administrative
decision, the case required a notice of appeal and points on
appeal. But as a declaratory judgment action, this would be
unnecessary. [Fn. 17] Although the Andrade family's procedural
path is somewhat irregular, we find that the failure to follow
appellate rules does not render this action invalid because the
appeal was combined with a declaratory judgment and class action.
2. Exhaustion of administrative remedies was not
required of the other class members.
The state argues that the class plaintiffs, other than
the Andrade family, should be dismissed for failure to exhaust
administrative remedies. Only the Andrade family individually may
appeal, the state reasons, because only the Andrade family
exhausted its administrative remedies.
The class contends that the department's stated inability
to decide the constitutional challenge raised by the Andrade family
is one of the reasons why it is futile for some nonrestricted legal
aliens to apply for a PFD. The class argues that it is not
required to go through either the application or appeal process in
order to challenge the constitutionality of a state benefit for
which it is statutorily ineligible.
We have stated that the requirement of exhaustion of
administrative remedies "turns on an assessment of the benefits
obtained through affording an agency an opportunity to review the
particular action in dispute." [Fn. 18] Allowing the agency to
make a factual record, apply its expertise, and make corrections to
its own errors provides the agency the opportunity to "perform
functions within its special competence" and may moot judicial
controversies. [Fn. 19] Application of the discretionary doctrine
of exhaustion of administrative remedies requires a determination
of the following: (1) whether exhaustion of remedies is required;
(2) whether the complainant exhausted those remedies; and (3)
whether the failure to exhaust remedies is excused. [Fn. 20]
We have cautioned trial courts "not to entertain legal or
constitutional claims which have been severed from the remainder of
a controversy otherwise subject to the doctrine of administrative
exhaustion." [Fn. 21] However, we have stated that "where a
controversy involves only constitutional [issues], and no factual
issues, the exhaustion doctrine may be held not to apply." [Fn. 22]
Where a claim "calls upon the superior court to review only the
validity of a statute, exhaustion of administrative remedies is not
required." [Fn. 23]
Exhaustion is excused in this case because the refusal of
the department to address the Andrade family's constitutional
challenge rendered pursuit of administrative relief futile. The
Andrade family was informed, in summary adjudication, that the
department could not decide the constitutional challenge. The
superior court granted partial summary judgment dismissing the
state's "failure to exhaust administrative remedies" defense
because it found that "the plaintiffs were facially ineligible for
PFDs and that pursuing the application process could not have
changed that outcome." And, in any event, once the superior court
certified the class and notice was given to the absent class
members, the pursuit of administrative remedies was unnecessary if
not futile. [Fn. 24] We therefore affirm the dismissal of the
exhaustion of administrative remedies defense. [Fn. 25]
B. Class Certification Was Proper.
The superior court certified the class finding that the
requirements of Civil Rule 23(a) and (b)(1) were met, or in the
alternative, that under Rule 23(b)(2) the department had acted or
refused to act on grounds generally applicable to the class thus
making declaratory and/or injunctive relief appropriate to the
The state argues that class certification was improper
because, in addition to the need for individual exhaustion of
administrative remedies, the class did not meet the requirements of
the class action rule. The state also contends that where
constitutionality is at issue, class certification is unnecessary
because the court's ruling on an appeal of an administrative
decision would affect similarly situated persons in the same
manner. [Fn. 26]
The class argues that the issue to be resolved by the
superior court for class purposes was not individual class members'
ultimate eligibility for a PFD in any given year; rather, the class
sought declaratory and injunctive relief as to a threshold question
of eligibility that exists based on the federally imposed
immigration status of the class members.
The threshold requirements of numerosity, commonality,
typicality, and protection of class interests by the representative
were met in this case. [Fn. 27] First, the superior court found
that the class was so numerous that joinder would be impracticable.
There are at least twenty named plaintiffs. In addition, counsel
for the class asserts that there are potentially hundreds of others
who are either similarly situated or will be affected by the case.
Second, resolution of the constitutional issues is a
concern common to the class members. [Fn. 28] In its action for
declaratory/injunctive relief, the class claims that the department
"systematically discriminated in favor of certain categories of
legal aliens" and that this practice is unconstitutional. The
class was certified to consist of lawful residents of Alaska who
were denied or deemed ineligible to receive a PFD because of their
alienage (or their parents' alienage). The questions presented
predominate over any individual claims and are common to the class.
Third, the superior court found the claims of the
representative parties to be typical of the class members. This
finding is supported by the record.
And fourth, the superior court found that the
representative parties would fairly and adequately represent the
class members. The state argues that "[w]here the
constitutionality of a statute is at issue, the need for a class
action loses vitality," citing to State v. Alex. [Fn. 29] But Alex
did not hold that the concern for adequate representation
disappears when the class action challenges the constitutionality
of a statute. It merely accorded less weight to that factor in
these circumstances. And it did note that failure to proceed on a
class action basis would "mean that the named plaintiffs would be
burdened with the expenses of the suit without reimbursement from
a class recovery. The effect on the defendants and the rest of the
class is the same whether the suit is brought as a class or as an
individual action." [Fn. 30] The superior court's finding that the
Andrades' representation was adequate for this constitutional
challenge was not clearly erroneous, and was entitled to some
weight in class certification. Thus, the Rule 23(a) class
certification requirements were satisfied.
The state contends that the sole reason the class
attorneys brought the class action was to generate additional
attorney's fees and that this is not an appropriate reason to
certify a class. There is no evidence that the court certified the
class because it would generate plaintiffs' attorney's fees.
However, certification of the class does change the landscape with
regard to the calculation of attorney's fees because of the
possibility of higher fee awards than in an individual action.
Factors considered in determining the compensable value of class
counsel's services include "the need to promote the efficient use
of court resources through the use of class action litigation, and
the potential difficulty of attracting capable counsel." [Fn. 31]
These factors adequately protect against the possibility of abusing
the class action mechanism to generate attorney's fees, and thus,
we reject the state's argument.
Additionally, declaratory or injunctive relief is
appropriate in this case because the department refused to address
the constitutional claims of the Andrade family. [Fn. 32] There is
no general prohibition against bringing a class action to declare
a statute unconstitutional, and we do not find one in this case.
We conclude that the superior court did not abuse its discretion by
certifying the class.
C. The PFD Eligibility Requirement of AS 43.23.005(a)(5)(B),
that Legal Aliens be "Lawfully Admitted for Permanent Residence in
the United States," Is Constitutional.
The superior court determined that the PFD eligibility
requirement for legal aliens found in AS 43.23.005(a)(5)(B), of
being "lawfully admitted for permanent residence in the United
States," is unconstitutional under the Supremacy Clause and under
federal and state equal protection because it impermissibly
excludes legal aliens who are not precluded under federal law from
forming the intent to remain here indefinitely. We disagree.
The ability to form the necessary intent to remain is the
focal point of this dispute because in order to be eligible for the
PFD, Alaska residents are required to have an intent to remain in
Alaska. [Fn. 33] Not all aliens are able to form that intent
because of the restrictions of their immigrant status; depending on
an alien's immigrant status, federal immigration law can place
restrictions on an alien's ability to intend to remain. [Fn. 34]
Some aliens are allowed in the country only if they do not intend
to abandon a foreign residence. [Fn. 35] These restricted aliens
jeopardize their legal presence in the country and may be deported
if they intend to seek to abandon their foreign residence and
establish domicile in this country. [Fn. 36] Other aliens are not
so restricted because their status does not preclude them from
intending to remain in the United States. [Fn. 37] Thus,
nonrestricted aliens are able to form the intent to remain in
Alaska without jeopardizing their legal alien status, but
restricted aliens cannot.
The class contends that because AS 43.23.005(a)(5)(B)
uses the same language as a term defined in the federal immigration
statutes ("lawfully admitted for permanent residence in the United
States"), it must incorporate the federal definition. If that
contention is true, the parties agree that the statute is
unconstitutional because aliens who are not precluded from forming
the intent to remain (under federal law) are excluded from PFD
eligibility (under state law). This exclusion would result in
discrimination on the basis of alienage and the imposition of a
burden unsanctioned by Congress.
We conclude, however, that the Alaska statute does not
incorporate the federal definition. We agree with the state's
contention that it can construe AS 43.23.005(a)(5)(B)'s language
more broadly than the federal definition of the same language and
in a manner that comports with constitutional requirements. There
is no requirement that similar state and federal statutory terms
must be governed by one federal definition. The state and federal
statutes in question regulate different areas and have different
purposes. In addition, we have accorded the department broad
authority to determine PFD eligibility and to define the statutory
terms of the PFD program. There is every indication that the
department is trying to define the statute in a manner that
includes those legal aliens who can form the requisite intent to
remain here. We have previously held that state residency requires
both physical presence and an intent to remain indefinitely, [Fn.
38] and we do so here as well. The term "an alien lawfully
admitted for permanent residence in the United States" should be
construed as incorporating these two requirements inherent in
Alaska residency: legal presence and an intent to remain
As discussed in greater detail below, we hold that AS
43.23.005(a)(5)(B) does not violate the Supremacy Clause because:
(1) it does not regulate immigration; (2) Congress has not
precluded state regulation of aliens for state economic benefits
such as the PFD program; (3) the statute does not stand as an
obstacle to the full accomplishment of the purposes and goals of
Congress in regulating immigration; and (4) it does not
discriminate against or impermissibly burden aliens. We also hold
that the statute does not violate equal protection because there is
no discriminatory action under the statute. However, we agree that
the now-repealed regulation, which was in effect when this action
was commenced, was unconstitutional. Because there is no
regulation currently in effect, we will not reach the question of
whether the expired emergency regulation is valid.
As background to these conclusions, we first discuss the
applicable statute and regulations, the presumption of
constitutionality, the broad authority granted to the department to
administer the program especially with regard to determining PFD
eligibility and defining terms, the ability of aliens to form the
requisite intent to remain, and the interpretation of the PFD
eligibility statute, AS 43.23.005(a)(5).
2. Statutory and regulatory background
Alaska Statute 43.23.005(a) provides that:
An individual is eligible to receive one
permanent fund dividend each year in an amount to be determined
under AS 43.23.025 if the individual
(1) applies to the department;
(2) is a state resident on the date
(3) was a state resident during the
entire qualifying year;
(4) has 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;
(A) a citizen of the United States;
(B) an alien lawfully admitted for
permanent residence in the United States;
(C) an alien with refugee status
under federal law; or
(D) an alien that has been granted
asylum under federal law; and
(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.
At the time this lawsuit was filed, a regulation
implementing subsection (a)(5) provided that some legal aliens who
did not meet specific requirements based on their immigration
status were not eligible for a PFD because the state determined
they could not form the necessary intent to be domiciled in Alaska
indefinitely. [Fn. 39]
During the course of this litigation, the attorney
general issued an informal opinion stating that former regulation
15 AAC 23.153 was unconstitutional because it conflicted with
federal law by improperly excluding some legal aliens who were not
precluded under federal law from forming the intent to remain
required for PFD eligibility. [Fn. 40] On June 4, 1999, the
department then replaced that regulation with an emergency
regulation that included a broader range of legal aliens within PFD
eligibility. [Fn. 41] The emergency regulation expired on October
1, 1999 because it was not made permanent by the Department of
Revenue. According to the state, this regulation was allowed to
expire because the superior court had declared AS 43.23.005(a)
unconstitutional. The state asserts that if the superior court is
reversed, the Department of Revenue "will re-adopt a similar
3. Presumption of constitutionality
"A party raising a constitutional challenge to a statute
bears the burden of demonstrating the constitutional violation. A
presumption of constitutionality applies, and doubts are resolved
in favor of constitutionality." [Fn. 42] The party attacking a
statute has the burden to "negative every conceivable basis which
might support it." [Fn. 43] We recognize
the well-established rule of statutory
construction that courts should if possible construe statutes so as
to avoid the danger of unconstitutionality. We have alluded to
this rule on many other occasions. It recognizes that the
legislature, like the courts, is pledged to support the state and
federal constitutions and that the courts, therefore, should
presume that the legislature sought to act within constitutional
limits. [Fn. 44]
4. The department has broad authority to administer
the PFD program.
The PFD is an economic benefit that Alaska residents are
entitled to receive if they meet certain eligibility requirements.
A threshold requirement is having the requisite intent to remain in
Alaska, although other factors are used in determining eligibility.
[Fn. 45] The PFD program is designed, in part, to encourage the
maintenance of Alaska residence and to reduce population turnover.
The legislature delegated broad authority to the
Department of Revenue to administer the PFD program. Alaska
Statute 43.23.055 sets out the duties of the department and states
in relevant part that the department shall "adopt regulations under
[the Administrative Procedure Act] that establish procedures and
time limits for claiming a permanent fund dividend." [Fn. 47] The
legislature also delegated power to the commissioner to "adopt
regulations under the Administrative Procedure Act (AS 44.62) for
determining the eligibility of individuals for permanent fund
dividends." [Fn. 48] The commissioner may also "use other
information available from other state departments or agencies to
determine the eligibility of an individual." [Fn. 49] In addition,
the commissioner "shall consider all relevant circumstances in
determining the eligibility of an individual." [Fn. 50]
We have held that AS 43.23.015(a) "requires the
commissioner to adopt regulations setting substantive eligibility
requirements for permanent fund dividends." [Fn. 51] "One
objective of [AS 43.23.015(a)] is to require the commissioner to
make substantive regulations resolving questions as to who is and
who is not a permanent resident" [Fn. 52] and thus eligible for a
PFD. We have repeatedly stated that "the residency requirement for
PFD eligibility may differ from other residency requirements." [Fn.
53] And we have concluded that "[t]he legislature has given broad
discretion to the commissioner to determine the factors which
define a permanent resident." [Fn. 54] Permanent residency
requires physical presence and an intent to remain in Alaska. [Fn.
55] We reasoned in a divorce case that the intent to remain
permanently must mean an intent to remain indefinitely because many
Alaskans likely intend to retire elsewhere and thus would not
otherwise be considered residents. [Fn. 56] The same reasoning
applies in the PFD context.
"[T]he Department must be able to reasonably define
statutory terms to insure that the permanent fund is protected for
the legitimate claims of permanent residents." [Fn. 57] In
Brodigan v. State, Department of Revenue, a PFD case in which the
department's regulation governing allowable absences for medical
treatment was challenged, we stated that "[b]ecause the Department
must administer the PFD program and apply the statutory standard,
the commissioner needed to decide the meaning of 'medical
treatment' [as used in AS 43.23.095(8)(D)]." [Fn. 58] We
determined that the department's regulation defining the term was
consistent with the statute even though it was more restrictive
than the statute. [Fn. 59]
Thus, we have accorded the department broad authority in
defining statutory terms, determining eligibility, and
administering the PFD program. It is clear that we have allowed
the commissioner to define statutory terms more restrictively in
its regulations in order to further the goals of the PFD program.
We conclude in this case that it is within the delegated authority
of the commissioner to define the term "lawfully admitted for
permanent residency in the United States" found in the PFD statute
more broadly than the federal definition in order (1) to avoid
unconstitutionality and (2) to be consistent with the requirement
of legal presence coupled with the requisite intent to remain in
5. Some legal aliens can form the requisite intent to
remain in Alaska because they are not precluded from doing so under
A central question in this case is whether aliens not
lawfully admitted for permanent residence under federal law may
still be able to form the intent to remain in Alaska that is
necessary for PFD eligibility. We conclude that if they are able
to form such an intent under federal law, then some are able to
form the intent to remain in Alaska. A brief discussion of federal
immigration law is necessary here to explain the significance of
this conclusion and how we reach it.
In Elkins v. Moreno, [Fn. 60] the United States Supreme
Court characterized the Immigration and Naturalization Act (INA) as
"a comprehensive and complete code governing all aspects of
admission of aliens to this country." [Fn. 61] The Court held that
the INA divides aliens into two classes: (1) immigrant aliens,
which includes every alien who does not fall within one of the
categories listed in 8 U.S.C. sec. 1101(a)(15); and (2) non-
aliens, which includes every alien who falls in a category listed
in that section. [Fn. 62]
Elkins noted that Congress explicitly conditioned
admission for some groups of nonimmigrant aliens on an intent to
not abandon their foreign residences:
Although nonimmigrant aliens can
generally be viewed as temporary visitors to the United States, the
nonimmigrant classification is by no means homogenous with respect
to the terms on which a nonimmigrant enters the United States. For
example, Congress expressly conditioned admission for some purposes
on an intent not to abandon a foreign residence or, by implication,
on an intent not to seek domicile in the United States.[ [Fn. 63]]
However, Congress did not explicitly restrict every nonimmigrant
alien class in this way. [Fn. 64] For example, Congress did not
impose this requirement on the "G-4" aliens involved in the Elkinscase. [Fn. 65]
Elkins viewed Congress's silence on the domicile issue as
pregnant and interpreted this silence to mean that Congress was
willing to allow such aliens to "adopt the United States as their
domicile." [Fn. 66] A nonrestricted alien who developed a
subjective intent to stay indefinitely in the United States "would
be able to do so without violating either the [INA], the [INS's]
regulations, or the terms of his visa." [Fn. 67]
This holding is significant to the case now before us
because, if Congress has not precluded all aliens not admitted for
permanent residence from forming the intention to remain
indefinitely, Alaska law must recognize that possibility in
establishing the requirements for permanent fund dividend
eligibility. The Andrade class argued to the superior court that
"federal law does not provide that certain categories of aliens are
necessarily domiciled in the United States. Federal law either
precludes them or does not preclude them from having domiciliary
intent." We take this to mean that there is not uniformity of
domiciliary status for all aliens not admitted for permanent
residence. Given the Supreme Court's holding in Elkins, [Fn. 68]
this appears to be an accurate statement of the law.
Thus, Congress has not precluded some aliens not admitted
for lawful permanent residence (as defined in federal immigration
law) from intending to remain indefinitely. We construe this lack
of preclusion under federal law to mean that an alien who fits
within that classification is able, for the purposes of PFD
eligibility, to form the intent to remain in Alaska indefinitely.
6. The term "an alien lawfully admitted for permanent
residence" as used in the PFD eligibility statute does not
incorporate the federal definition.
The parties dispute whether the PFD eligibility statute
incorporates the federal definition of "lawfully admitted for
permanent residence" found in 8 U.S.C. sec. 1101(a)(20), which
[t]he term 'lawfully admitted for permanent
residence' means the status of having been lawfully accorded the
privilege of residing permanently in the United States as an
immigrant in accordance with the immigration laws, such status not
having changed.[ [Fn. 69]]
The class argues that the statute must incorporate the
federal definition because "[t]here is no rational way . . . to
interpret the phrase 'an alien lawfully admitted for permanent
residence in the United States' . . . other than by reference to
federal law." According to the class, incorporation of the federal
definition renders the PFD eligibility requirement in conflict with
Federal law because not all legal aliens are precluded from forming
the intent to remain, even though they are not lawfully admitted
for permanent residence (as defined in the federal statute). Under
their interpretation of the statute, aliens who are not precluded
from forming the requisite intent to remain are impermissibly
excluded from PFD eligibility.
The state concedes that the former implementing
regulation was "too restrictive" and that incorporating the federal
definition of "lawfully admitted for permanent residence" into the
state statute renders it unconstitutional under the test stated in
Toll v. Moreno. [Fn. 70] In Toll, the Supreme Court held that a
state regulation violates the Supremacy Clause if it both
discriminates against aliens and imposes additional burdens not
contemplated by Congress. [Fn. 71] Thus, under Toll a restriction
that categorically excluded nonrestricted nonimmigrants from PFD
eligibility would be unconstitutional. However, the state argues
that the agency has the authority to construe the language of
subsection (a)(5)(B) more broadly than under federal law and in a
manner that comports with Toll. We agree.
Given "the preeminent role of the Federal Government with
respect to the regulation of aliens within our borders," [Fn. 72]
the legislature's use of the term "lawfully admitted for permanent
residence in the United States" in AS 43.23.005(a)(5)(B) arguably
makes the federal definition of these words applicable. However,
the state statute in question does not regulate immigration; it
regulates PFD eligibility. The different purposes of the statutes
leads to our conclusion that the terms do not need to be defined in
the same way. [Fn. 73]
The state argues that its interpretation is consistent
with legislative intent. According to the state, the legislative
"history indicates that in adopting section (a)(5)(B), the main
concern of the legislature was . . . the possibility that illegal
aliens would receive dividends. No discussion of the threshold
requirement for dividend eligibility of legal aliens appears in the
The Andrade class argues that because illegal aliens were
the central focus in Cosio, this shows "that all legal aliens
should a receive PFD regardless of their immigration status." We
disagree. There is no basis for concluding that all legal aliens
should be eligible to receive a PFD. Aliens have to be present in
Alaska legally and be able to form the requisite intent to remain,
like all other applicants. Once legal presence is established,
then the department has authority to determine eligibility based on
all relevant factors, including the ability to intend to remain.
[Fn. 74] In the case of legal aliens, a relevant factor is any
restriction placed on them by virtue of their immigration status.
If an alien is not precluded by federal law from forming the intent
to remain indefinitely, then for the purposes of PFD eligibility,
the department has the authority to construe that as meaning that
an alien is considered able to form the requisite intent to remain
While the legislative history reveals concern regarding
illegal aliens, the silence of the legislature with regard to legal
aliens is ambiguous. The state and the class agree that "[n]o
discussion of the threshold requirement for dividend eligibility of
legal aliens appears in the legislative history." Thus, the
class's claim that the statute must incorporate the federal
definition is not mandated by legislative history.
The state also argues that "a close reading" of the state
statute "supports the conclusion that the legislature did not
intend to incorporate federal law when defining the phrase
'lawfully admitted for permanent residence in the United States.'"
The state contends that because subsections (a)(5)(C) and (D)
specifically incorporate federal law [Fn. 75] and subsection
(a)(5)(B) does not, it can be inferred that the legislature did not
intend for subsection (a)(5)(B) "to be construed under federal
immigration law." However, the legislature's failure to use "under
federal law" in subsection (a)(5)(B) is ambiguous, and does not
establish legislative intent either way regarding incorporation of
the federal definition.
We conclude that the department has the authority to
define "lawfully admitted for permanent residency in the United
States" differently than the federal government. And we do not
construe the PFD eligibility statute as categorically excluding
from PFD eligibility those aliens who are not precluded from
forming the intent to remain indefinitely. Instead, we hold that
AS 43.23.005(a)(5)(B) requires, for PFD eligibility, that an alien
be legally present and able to form the requisite intent to remain
7. Alaska Statute 43.23.005(a)(5)(B) does not violate
the Supremacy Clause.
When a state statute is challenged under the Supremacy
Clause, the analysis starts "with the assumption that the historic
police powers of the States were not to be superseded by the
Federal Act unless that was the clear and manifest purpose of
Congress." [Fn. 76] It is undisputed that the power to regulate
immigration is an exclusively federal power. [Fn. 77] But the
Supreme Court "has never held that every state enactment which in
any way deals with aliens is a regulation of immigration and thus
per se pre-empted by this constitutional power, whether latent or
exercised." [Fn. 78] The Supreme Court has also noted that its
review of the INA had not revealed "any specific indication in
either the wording or the legislative history of the INA that
Congress intended to preclude even harmonious state regulation
touching on aliens in general." [Fn. 79]
The tests set forth by the Supreme Court in DeCanas v.
Bica [Fn. 80] and Toll v. Moreno [Fn. 81] provide the framework for
analyzing whether the provisions of AS 43.23.005(a)(5) are
preempted by federal law. DeCanas involved a provision of the
California Labor Code that prohibited an employer from knowingly
employing "an alien who is not entitled to lawful residence in the
United States if such employment would have an adverse effect on
lawful resident workers." [Fn. 82] The question in that case was
whether the provision was unconstitutional as an attempt to
regulate immigration or because it was preempted under the
Supremacy Clause by the INA. [Fn. 83] While the Supreme Court
referred in its opinion to "illegal aliens," the Court stated that
the term was meant to "appl[y] to aliens who would not be permitted
to work in the United States under pertinent federal laws and
regulations." [Fn. 84] Thus, the aliens involved in DeCanas were
not necessarily "illegal aliens" in the sense that they were not
legally present in the United States. Using the tests discussed
below, the Court concluded on the record before it that the
California provision neither regulated immigration nor violated the
Supremacy Clause. [Fn. 85]
The DeCanas Court asked first whether the state statute
is a regulation of immigration. If yes, it is invalid. [Fn. 86]
The second question is whether the "complete ouster of state power
including state power to promulgate laws not in conflict with
federal laws was the clear and manifest purpose of Congress." [Fn.
87] "Federal regulation . . . should not be deemed preemptive of
state regulatory power in the absence of persuasive reasons either
that the nature of the regulated subject matter permits no other
conclusion, or that the Congress has unmistakably so ordained."
[Fn. 88] If the first two tests are satisfied, then the final
question is whether the state legislation is "nevertheless
unconstitutional because it stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of
Congress in enacting the INA." [Fn. 89]
We conclude that all of the DeCanas tests are satisfied
in this case. First, the statute is not a regulation of
immigration. The state legislation in question is clearly limited
to the administration of Alaska's unique economic benefit program,
the permanent fund dividend. Second, there has been no ouster of
state power to regulate PFD eligibility by Congress. The PFD is a
purely local phenomenon, subject to regulation by the State of
Alaska. Here, the nature of the subject matter is eligibility for
a PFD. Congress has never unmistakably ordained that Alaska could
not regulate its PFD program. And third, given (1) the presumption
of constitutionality under Alaska law, (2) the different purposes
of the federal and state statutes, (3) the broad authority
delegated to the department to define statutory terms to further
the purposes of the PFD program, (4) the PFD eligibility
requirements of legal presence and an intent to remain indefinitely
in Alaska, and (5) the lack of legislative intent to exclude
eligible legal aliens, we conclude that the PFD eligibility statute
does not stand as an obstacle to the accomplishment and execution
of the full purposes and objectives of Congress in regulating
immigration because the statute can be construed in a manner that
includes nonrestricted legal aliens in PFD eligibility. This
conclusion is based on two premises: first, our interpretation of
AS 43.23.005(a)(5)(B) as requiring of aliens legal presence in
Alaska coupled with the requisite intent to remain; and second, an
interpretation of AS 43.23.005(a)(5)(B) by the department that
recognizes the ability of nonrestricted nonimmigrant aliens to form
the requisite intent to remain in Alaska and thus meet a threshold
eligibility requirement. [Fn. 90]
Even if the tests set forth in DeCanas are satisfied,
under Toll v. Moreno [Fn. 91] if a state regulation "discriminates
against aliens lawfully admitted to the country [the regulation] is
impermissible if it imposes additional burdens not contemplated by
Congress." [Fn. 92] Thus, if nonrestricted legal aliens are not
precluded from having the intent to remain indefinitely under
federal law, but they are nonetheless facially excluded from PFD
eligibility by state statute, then the state statute would
discriminate against nonrestricted aliens and impose a burden on
them not contemplated by Congress. The parties agree that if the
statute incorporates the federal definition, it violates the
Supremacy Clause. However, we concluded above that the PFD
eligibility requirement in AS 43.23.005(a)(5)(B) of being "lawfully
admitted for permanent residence" does not incorporate the federal
definition of that term. Rather, the state may accord the statute
a broader definition than under federal law for the purposes of
defining PFD eligibility. We now consider whether the statute
comports with the requirements of Toll. To do so we ask whether
the statute categorically excludes legal aliens from PFD
eligibility and thus discriminates based on alienage or imposition
of an impermissible burden.
The Toll case had its genesis in Elkins v. Moreno. [Fn.
93] The plaintiffs in Elkins were students who resided with and
were financially dependent on "a parent who was a nonimmigrant
alien holding a 'G-4' visa." [Fn. 94] They alleged that the
(state-operated) University of Maryland's policy of denying in-
state tuition to the children of G-4 visa holders, [Fn. 95] based
on their inability to meet the Maryland domicile requirement of
having a demonstrated intent to live permanently or indefinitely in
Maryland, violated various federal laws and constitutional
provisions, such as the Supremacy Clause and the Due Process Clause
of the Fourteenth Amendment. [Fn. 96] However, the Elkins Court
did not decide whether the university's policy violated the
Constitution. Instead, it remanded and certified to the Maryland
Court of Appeals the question of whether G-4 aliens were incapable
of establishing domicile in Maryland as a question of state law
[Fn. 97] on which there was no controlling precedent. [Fn. 98]
After the Court certified this question, the university adopted a
clarifying resolution that basically attempted to justify its in-
state tuition policy by referencing various "substantial purposes
and interests," independent of the Maryland law of domicile. [Fn.
99] The Elkins case returned to the Supreme Court after remand
under the name Toll v. Moreno. [Fn. 100]
Toll addressed the university's grant of preferential
treatment for tuition purposes to students who had "in-state"
status. [Fn. 101] The university's policy allowed citizens and
immigrant aliens to obtain in-state status if they could show they
were domiciled within the state. [Fn. 102] Nonimmigrant aliens
were not eligible for such status, even if they were domiciled
within Maryland. [Fn. 103] The Toll Court considered whether the
university's new policy, implemented after Elkins, violated the
Supremacy Clause. [Fn. 104] The Toll Court stated that some of its
previous decisions "stand for the broad principle that 'state
regulation not congressionally sanctioned that discriminates
against aliens lawfully admitted to the country is impermissible if
it imposes additional burdens not contemplated by Congress.'" [Fn.
105] The Court concluded that the university's policy violated the
Supremacy Clause because it found that, insofar as the university
policy barred domiciled G-4 aliens (and their dependents) from
acquiring in-state status, "Congress [n]ever contemplated that a
State, in the operation of a university, might impose
discriminatory tuition charges and fees solely on account of the
federal immigration classification." [Fn. 106]
Our case is distinguishable from Toll. In Toll, the
university expressly discriminated against legal aliens who were
able to acquire domicile in Maryland. Here, there is no facially
discriminatory policy or evidence of legislative intent to exclude
nonrestricted nonimmigrant legal aliens from PFD eligibility. On
the contrary, the legislative history leads us to conclude that the
legislature intended that qualifying legal aliens be eligible for
a PFD. If an alien's immigrant status provides relevant
information as to his or her ability to intend to remain, then the
commissioner may consider it. The commissioner and the department
have corrected their previously unconstitutional interpretation of
the language of AS 43.23.005(a)(5)(B) by repealing the former
implementing regulation and by adopting an emergency regulation in
an effort to comply with both federal law and the requirements of
the PFD program. The construction of AS 43.23.005(a)(5)(B) set
forth here and as presented by the state [Fn. 107] comports with
Toll because the statutory requirement of legal presence and the
ability to intend to remain does not discriminate on the basis of
alienage or impermissibly impose additional burdens not
contemplated by Congress. We therefore reverse the superior
court's decision and hold that the statute does not violate the
8. The PFD eligibility requirement of AS
43.23.005(a)(5)(B) does not violate equal protection.
The superior court ruled that AS 43.23.005(a)(5) violates
the Equal Protection Clauses of the United States and Alaska
Constitutions. We disagree.
Although the class properly raised the equal protection
claim in its declaratory judgment action based on the now-repealed
regulation, we conclude that the PFD eligibility statute, AS
43.23.005(a)(5)(B), does not violate the federal or state equal
protection rights of class members. "Where there is no unequal
treatment, there can be no violation of the right to equal
protection of law. In the absence of any evidence of disparate
treatment, there is no basis for an equal protection claim . . . ."
[Fn. 108] Because we conclude that the PFD eligibility requirement
for aliens found in AS 43.23.005(a)(5)(B) requires legal presence
coupled with the ability to intend to remain, we hold that the
statute does not facially exclude nonrestricted legal aliens or
make a discriminatory distinction and thus does not violate equal
9. The implementing regulation in place when this
action was commenced, 15 AAC 23.153 (repealed), was
The superior court did not address, and was not required
to address, the constitutionality of either the repealed regulation
or the emergency regulation. The parties do not dispute that the
now-repealed implementing regulation, 15 AAC 23.153, in effect when
this action was commenced, was unconstitutional. We agree that the
repealed regulation was unconstitutional because it improperly
excluded some legal aliens who were not precluded under federal law
from forming the intent to remain required for PFD eligibility.
During the pendency of this litigation, the department
reassessed its interpretation of AS 43.23.005(a)(5)(B) to comport
with federal and state law. [Fn. 109] We recognize that the
constitutional challenge raised by the class instigated the
department's reassessment and that the class was thus successful on
the main issue of the action -- that nonrestricted nonimmigrant
aliens may be able to form the intent to remain in Alaska
indefinitely and thus meet that PFD eligibility requirement. [Fn.
The department enacted an emergency regulation that
appears to construe the language of AS 43.23.005(a)(5)(B) in accord
with both the PFD requirements and federal immigration law;
however, the emergency regulation was allowed to expire. Because
the emergency regulation was not in effect when the Andrade's PFD
application was denied, because the parties did not argue the
validity of the emergency regulation below, and because the
emergency regulation is not now in effect, we decline to decide its
constitutional validity at this time.
D. The Superior Court Did Not Err in Concluding that the PFD
Eligibility Statute, AS 43.23.005(a)(5)(B), Does Not Constitute
National Origin Discrimination under the Alaska Human Rights Act.
The class cross-appeals the superior court's conclusion
that exclusion of the class members from PFD eligibility is not
discrimination based on national origin under the Alaska Human
Rights Act, AS 18.80.255. [Fn. 111] The Andrade class argues that
the denial of benefits based on citizenship is national origin
discrimination because aliens must come from another country.
The state argues that this issue was not properly before
the superior court because a jurisdictional prerequisite was not
complied with in that plaintiffs failed to file a copy of the
complaint with the Human Rights Commission, as required by AS
18.80.145. [Fn. 112] In the alternative, the state argues that no
claim of national origin discrimination was established.
We conclude that the matter was properly before the
superior court and affirm the superior court's conclusion that AS
43.23.005(a)(5) does not discriminate on the basis of national
1. The national origin discrimination question was
properly before the superior court.
The superior court has jurisdiction "over all causes of
action arising under the provisions of AS 18.80." [Fn. 113]
However, when a human rights action is brought, the plaintiff shall
serve a copy of the complaint on the State Commission for Human
Rights. [Fn. 114] But nothing in AS 18.80 supports a conclusion
that the requirement of giving the Human Rights Commission a copy
of the complaint is a jurisdictional requirement for maintenance of
human rights claims in superior court.
Furthermore, the state did not object to this procedural
failure until it filed its brief on appeal to this court. The
class makes note of that failure and argues that the objection
should therefore be considered waived. We agree with the class and
consider the objection waived. [Fn. 115]
2. The superior court did not err in concluding that
the PFD eligibility statute did not constitute national origin
The superior court concluded that the state's exclusion
of the class members under AS 43.23.005(a)(5) from PFD eligibility
does not constitute "discrimination within the scope of the State's
Civil Rights Act." The superior court found that "[o]n its face,
AS 43.23.005 does not discriminate based on the place where the
applicant was born, or the country that their ancestors came from."
The class contends that "[i]f someone is not a U.S. citizen, then
they must have been born in another country." The class goes on to
argue that "[t]he state's eligibility scheme is in effect a
restriction based upon U.S. citizenship or near U.S. citizenship,
with non-citizen adults excluded," and that this is impermissible
as national origin discrimination. We agree with the superior
court's rejection of this argument.
The Alaska Legislature gave the term "national origin" a
brief definition in AS 18.80.300(10): "'national origin' includes
ancestry." This definition has remained unchanged since the
statute was enacted. [Fn. 116] There is no legislative history to
shed light on what the legislature meant by this definition.
In the context of federal employment discrimination, the
Supreme Court has defined national origin discrimination as being
based on "the country where a person was born, or, more broadly,
the country from which his or her ancestors came." [Fn. 117] The
Supreme Court recognized that "an employer might use a citizenship
test as a pretext to disguise what is in fact national-origin
discrimination" and that such discrimination is prohibited. [Fn.
The term is also defined in 29 C.F.R. sec. 1606.1 which
provides in part that national origin discrimination is defined
broadly "as including, but not limited to, the denial of equal
employment opportunity because of an individual's, or his or her
ancestor's, place of origin; or because an individual has the
physical, cultural or linguistic characteristics of a national
origin group." Another federal regulation provides that "where
citizenship requirements have the purpose or effect of
discriminating against an individual on the basis of national
origin, they are prohibited by Title VII." [Fn. 119]
The Alaska Attorney General issued an opinion in 1975
that concluded that questions about alienage or citizenship on
employment applications had the effect of discriminating on the
basis of national origin and were thus legally impermissible. [Fn.
Based on our review of the Alaska definition, the federal
definition, and existing interpretations of the term, we conclude
that national origin discrimination is properly defined as
discrimination based on an individual's (or his or her ancestor's)
place of origin, or cultural characteristics associated with
specific places of origin. This comports with the broad protection
against discrimination required by Alaska law. [Fn. 121]
We hold that AS 43.23.005(a)(5) does not discriminate
based on cultural characteristics, ancestry, or country of origin.
Nor does the statute have the effect of national origin
discrimination. Under the PFD eligibility requirements some aliens
are eligible, some are not, regardless of ancestry, country of
origin, or cultural characteristics. [Fn. 122] This does not
constitute national origin discrimination and class plaintiffs are
not entitled to damages or back dividends on this basis. We
therefore affirm the conclusion of the superior court on this
The superior court did not abuse its discretion when it
dismissed the exhaustion of administrative remedies defense. We
AFFIRM the denial of the state's motion for summary judgment on
We AFFIRM certification of the class because the superior
court did not abuse its discretion in that matter.
We also AFFIRM the superior court's denial of the class's
motion for summary judgment on the Human Rights claim because we
agree that the PFD eligibility requirement for legal aliens under
AS 43.23.005(a)(5) does not constitute national origin
We REVERSE the superior court's conclusion that AS
43.23.005(a) is unconstitutional. The PFD eligibility requirement
for legal aliens found in AS 43.23.005(a)(5)(B) survives
constitutional challenge because, for the purposes of PFD
eligibility, the term "lawfully admitted for permanent residence"
means that an alien must be legally present in Alaska and be able
to form the requisite intent to remain in Alaska. The statute is
not a regulation of immigration, does not conflict with federal
law, and does not stand as an obstacle to the accomplishment of the
full purposes of Congress in regulating immigration. Nor does it
discriminate based on alienage or impose additional burdens on
aliens not contemplated by Congress.
Finally, the superior court's grant of partial summary
judgment to the class enjoined the department from enforcing any
statutes or regulations "that would exclude legal aliens and their
children from PFD eligibility based upon a legal immigration status
that is not inconsistent with having an intent to reside
indefinitely in this state." The class was entitled to that ruling
as a matter of law and it was the proper remedy for the former
implementing regulation, 15 AAC 23.153 (repealed), which the
parties agree was unconstitutional. We therefore AFFIRM the
superior court's grant of summary judgment insofar as it enjoined
any conduct that improperly excluded otherwise eligible legal
aliens, and for this reason we AFFIRM the superior court's
determination that the plaintiff class prevailed in this
858 P.2d 621, 628 n.7, 8 (Alaska 1993).
Andrade and the children applied for and received dividends in
1997 and 1998.
See AS 18.80.255; AS 22.10.020(i).
The court also noted that the Andrade family's request to be
awarded 1996 dividends presented disputed questions of fact, and
was therefore inappropriate for summary judgment. The court later
remanded the Andrade family's claims back to the department.
See State v. Beard, 960 P.2d 1, 5 (Alaska 1998); Broeckel v.
State, Dep't of Corrections, 941 P.2d 893, 896 n.2 (Alaska 1997).
State, Dep't of Transp. and Pub. Facilities v. Fairbanks North
Star Borough, 936 P.2d 1259, 1260 n.3 (Alaska 1997).
See Meyer v. State, Dep't of Revenue, Child Support
Enforcement Div., ex rel. N.G.T., 994 P.2d 365, 367 (Alaska 1999).
See Hanson v. Kake Tribal Corp., 939 P.2d 1320, 1330 (Alaska
See Weiss v. State, 939 P.2d 380, 386 (Alaska 1997).
Alaska R. Civ. P. 23(b) (emphasis added).
See Fed. R. Civ. P. 23 (with the exception of section (f) of
the federal rule, which is not included in the Alaska rule and
which allows discretionary appeal of a district court order
granting or denying class action certification).
See Gulf Oil Co. v. Bernard, 452 U.S. 89, 100 (1981) (district
courts have broad discretion to certify and decertify a class);
seealso Six Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301,
1304 (9th Cir. 1990); see also 5 Jerold S. Solovy et al., Moore's
Federal Practice sec. 23.04 (3d ed. 2000).
See Rollins v. State, Dep't of Revenue, Alcoholic Beverage
Control Bd., 991 P.2d 202, 206 (Alaska 1999).
See Waiste v. State, 10 P.3d 1141, 1144 (Alaska 2000).
Id.; accord Brown v. Brown, 983 P.2d 1264, 1267 (Alaska 1999).
See Alaska R. App. P. 602(c)(1).
See Alaska R. Civ. P. 57; see also Jefferson v. Asplund, 458
P.2d 995, 999 (Alaska 1969) ("[A]ll that is required of a complaint
seeking declaratory relief is a simple statement of facts
demonstrating that the superior court has jurisdiction and that an
actual justiciable case or controversy is presented.").
Mt. Juneau Enters. v. City of Juneau, 923 P.2d 768, 776
(Alaska 1996) (quoting Ben Lomond v. Municipality of Anchorage, 761
P.2d 119, 121 (Alaska 1988)).
Id. at 777.
Standard Alaska Prod. Co. v. Department of Revenue, 773 P.2d
201, 207 (Alaska 1989) (internal quotation marks omitted).
State, Dep't of Transp. and Pub. Facilities v. Fairbanks North
Star Borough, 936 P.2d 1259, 1261 (Alaska 1997).
Indeed, in this case the hearing examiner declined to consider
the family's constitutional challenges on the ground that he "did
not have the authority to declare state law invalid." He directed
the appellees to "pursue their legal argument in court."
Much of the force of the state's argument concerning class
certification and exhaustion has been dispelled by the court's
ruling that "back dividends" will not be awarded. (The Andrade
family's claims from 1996 forward are not governed by this ruling
because their claims are timely.) The State expresses particular
concerns about the "doctrine of finality" and the statutory
application requirement of AS 43.23.005(a)(1), and a more general
concern about the need for a factual context for each applicant.
These arguments would have more weight if back dividends were to be
awarded. Because they will not be awarded, neither the doctrine of
finality nor the application requirement will be violated in so far
as these legal rules apply to activity prior to the filing of the
complaint. Further, the factual context needed for an individual
award can be supplied before awards on timely claims are made.
The state also argues that because the relief sought was back
dividends, only an individual should bring the claim. However, the
superior court did not address any individual claims.
See Alaska R. Civ. P. 23(a).
Alaska R. Civ. P. 23(b)(3) provides, in part, that a class
action may be maintained if "[t]he court finds that the questions
of law . . . common to the members of the class predominate over
any questions affecting only individual members."
646 P.2d 203, 214 (Alaska 1982).
Id. (internal quotation marks omitted).
See Alaska R. Civ. P. 23(b)(2).
See AS 43.23.005 (providing that state residency is required for
permanent fund dividend eligibility); AS 01.10.055 (defining state
residency as physical presence with intent to remain); 15 Alaska
Administrative Code (AAC) 23.143 (2001) (discussing intent to
See Elkins v. Moreno, 435 U.S. 647, 665 (1978).
See id. at 666.
See Perito v. Perito, 756 P.2d 895, 898-99 (Alaska 1988)
(interpreting "intent to remain permanently" as requiring an intent
to remain indefinitely, "[o]therwise it is likely that a large
percentage of Alaskans would not be considered residents, since
many intend to retire elsewhere.").
Former 15 AAC 23.153 (1999) provided that
(a) An alien who before January 1 of the
qualifying year has been granted permanent resident status under 8
U.S.C. 1101(a)(20), refugee status under 8 U.S.C. 1157 and 8 U.S.C.
1159, or asylum under 8 U.S.C. 1158 and who otherwise qualifies is
eligible for a dividend.
(b) An alien who has been granted
conditional resident status meets the requirements of permanent
resident status under (a) of this section.
(c) An alien who does not fall within the
provisions of (a) or (b) of this section is not eligible for a
(d) A foreign-born child adopted by an
eligible resident is not subject to this section.
1999 Informal Op. Att'y Gen. 103, 105-07.
Emergency regulation 15 AAC 23.153 provided that
(a) For purposes of AS
43.23.005(a)(5)(B), an alien is considered lawfully admitted for
permanent residence if the alien has
(1) an immigrant visa;
(2) a nonimmigrant visa that
(A) does not require that the
alien has a homeland or residence other than the United States, and
(B) is not designated as
temporary or does not limit the time that the alien may remain in
the United States;
(3) been paroled indefinitely into
the United States under 8 U.S.C. 1182(d)(5);
(4) been granted conditional
(5) a properly filed application
with the Immigration and Naturalization Service for an adjustment
of status to permanent residency; or
(6) an immigration status under
which the alien is otherwise considered to be domiciled in the
United Status under federal law.
(b) Notwithstanding subsection (a) of
this section, an alien is not eligible for a dividend if the alien
is unlawfully present in the United States.
(c) For the purposes of AS
43.23.005(a)(3), an alien must be lawfully admitted for permanent
residence in the United States, granted asylum under 8 U.S.C. 1158,
or granted refugee status under 8 U.S.C. 1157 or 8 U.S.C. 1159
before becoming a state resident.
(d) An alien has the burden of proving
that the alien is lawfully admitted for permanent residence under
this section. A work authorization permit is not proof that the
alien is lawfully admitted for permanent residence.
(e) A foreign-born child adopted by an
eligible resident is not subject to this section.
Baxley v. State, 958 P.2d 422, 428 (Alaska 1998).
Katmailand, Inc. v. Lake and Peninsula Borough, 904 P.2d 397,
401 (Alaska 1995) (quoting Regan v. Taxation with Representation of
Wash., 461 U.S. 540, 548 (1983)).
Kimoktoak v. State, 584 P.2d 25, 31 (Alaska 1978)
(footnote and citations omitted); see also State v. Rice, 626 P.2d
104, 108 (Alaska 1981).
See authorities cited supra n.33.
See State, Dep't of Revenue, Permanent Fund Dividend Div. v.
Cosio, 858 P.2d 621, 627 (Alaska 1993).
Cosio, 858 P.2d at 624.
Id. at 625; see also Brodigan v. Alaska, Dep't of Revenue, 900
P.2d 728, 732 (Alaska 1995).
Church v. State, Dep't of Revenue, 973 P.2d 1125, 1129 (Alaska
1999) (quoting Brodigan, 900 P.2d at 733 n.12); see also Schikora
v. State, Dep't of Revenue, 7 P.3d 938 (Alaska 2000).
Church, 973 P.2d at 1129.
See AS 01.10.055; 15 AAC 23.143.
See Perito v. Perito, 756 P.2d 895, 898-99 (Alaska 1988).
Brodigan, 900 P.2d at 732.
435 U.S. 647 (1978).
Id. at 664.
Id. at 665.
See id. at 666.
8 U.S.C. sec. 1101(a)(15)(G)(iv) (1999) which pertains to
"officers, or employees of [certain] international organizations,
and the members of their immediate families." For a discussion of
the facts of Elkins, see text infra at 42-43.
Elkins, 435 U.S. at 666.
Id. at 665-67.
8 U.S.C. sec. 1101(a)(20) (1999).
See 458 U.S. 1 (1982).
Id. at 12-13.
Id. at 10.
See Underwater Constr., Inc. v. Shirley, 884 P.2d 150, 155
(Alaska 1994) (noting that state statute that does not rely on
federal scheme does not need to be construed in pari materia with
See AS 43.23.015(a) ("The commissioner shall consider all
relevant circumstances in determining the eligibility of an
See AS 43.23.005(a)(5)(C) (referring to "an alien with refugee
status under federal law"); AS 43.23.005(a)(5)(D) (referring to "an
alien that has been granted asylum under federal law").
Ray v. Atlantic Richfield Co., 435 U.S. 151, 157 (1978)
(quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230
See DeCanas v. Bica, 424 U.S. 351, 354 (1976).
Id. at 355.
Id. at 358.
458 U.S. 1 (1982).
DeCanas, 424 U.S. at 352.
Id. at 353.
Id. at 354 n.2.
Id. at 363.
Id. at 354-56.
Id. at 357 (internal quotation marks omitted).
Id. at 356 (quoting Florida Lime & Avocado Growers v. Paul,
373 U.S. 132, 142 (1963)).
Id. at 363 (internal quotation marks omitted).
The expired emergency regulation may be adequate. However,
because that regulation was not in effect at the time this action
was commenced and because there is no regulation currently in
effect, we will not at this time reach the question of the
constitutionality of the emergency regulation.
458 U.S. 1 (1982).
Id. at 13 (quoting DeCanas, 424 U.S. at 358 n.6).
435 U.S. 647 (1978).
Toll, 458 U.S. at 4.
See 8 U.S.C. sec. 1101(a)(15)(G)(iv).
See Elkins, 435 U.S. at 650-653.
See id. at 668.
See id. at 662.
Toll, 458 U.S. at 7.
Id. at 9.
See id. at 3.
See id. at 9-19.
Id. at 12-13 (quoting DeCanas v. Bica, 424 U.S. 351, 358 n.6
Id. at 17.
The state said that "we now know that nonrestricted
nonimmigrants are, in fact, lawfully admitted to the United States
on an indefinite basis. Thus, those nonrestricted nonimmigrants
who make Alaska their home are eligible for a dividend under
Matanuska-Susitna Borough Sch. Dist. v. State, 931 P.2d 391,
397 (Alaska 1997).
See, e.g., 1999 Informal Op. Att'y Gen. No. 63-99-0225 (April
See, e.g., Bowman v. Blair, 889 P.2d 1069, 1075 (Alaska 1995);
Alaska Placer Co. v. Lee, 553 P.2d 54, 63 (Alaska 1976).
AS 18.80.255 provides in relevant part:
It is unlawful for the state or any of its
political subdivisions (1) to refuse, withhold from, or deny to a
person any local, state, or federal funds, services, goods,
facilities, advantages, or privileges because of race, religion,
sex, color, or national origin . . . .
AS 18.80.145 provides, in part, that
(a) When an action is brought under AS
22.10.020(i), the plaintiff shall serve a copy of the complaint on
the commission. Upon timely application, the commission may
intervene as a party to the action as a matter of right. If the
commission certifies in writing to the court that it is presently
investigating or actively dealing with the act, practice, or policy
of the defendant giving rise to the cause of action, the court
shall, at the request of the commission, defer proceedings for a
period of not more than 45 days or such extended period as the
court may allow; except that the court may enter an order or
injunction if necessary to prevent irreparable injury to the
. . . .
(d) If the commission does not intervene
or file a certificate and conduct a hearing as provided in this
section, the court has complete jurisdiction of the case,
notwithstanding the provisions of AS 18.80.280.
AS 22.10.020(i) provides in part that "[t]he superior court is the
court of original jurisdiction over all causes of action arising
under the provisions of AS 18.80."
See Ellingstad v. State, Dep't of Natural Resources, 979 P.2d
1000, 1007 (Alaska 1999).
See ch. 117, sec.6 SLA 1965.
Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88 (1973).
Id. at 92.
29 C.F.R. sec. 1606.5(a).
1975 Formal Op. Att'y Gen. No. 6.
See University of Alaska v. Tumeo, 933 P.2d 1147, 1152 (Alaska
Concluding that AS 43.23.005 does not discriminate on the
basis of national origin does not mean that there are no
circumstances in which an individual PFD applicant might have a
colorable claim under AS 18.80. But that question is not now
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