AKLEG Day 50: Dunleavy’s PFD repayment plan has residency requirements that are likely unconstitutional

Something might be going on in there.The Alaska State Capitol building as photographed in 2010. (Photo by Kimberly Vardeman/Creative Commons)

The 50th day of the Alaska Legislature is in the books. Finance subcommittees continued the grind, we heard more from the public on the PFD repayment plan and a commissioner accused a legislator of conducting a religious test… or perhaps it was just some coordinated political theater. Who knows.

The end can’t come soon enough.

Constitutional problems

The Senate State Affairs Committee had its second round of public testimony on a pair of bills by Gov. Michael J. Dunleavy to repay the dividends that were either vetoed or reduced over the last three years over the next three years. After going 2:1 against the bill last week, last night’s hearing was more balanced according to the Juneau Empire’s report of the session.

The testimony largely focused on the costs of paying out a dividend, and it seemed there was little attention to just how the Dunleavy administration proposes making the payments: Over the next three years with a requirement that recipients be eligible for both the missed dividend and the current one (2016 and 2019, 2017 and 2020, 2018 and 2021).

The concern was, however, raised during a Senate State Affairs Committee hearing on the bill earlier in the day.

Sen. Scott Kawasaki, D-Fairbanks, had asked legislative legal services about it and got the following answer:

“A court would likely find Senate Bill 24 to be an unconstitutional durational residency requirement by discriminating against some state residents and by infringing on an individual’s fundamental right to travel,” explains the opening of the memo. “Durational residency requirements are generally subject to heightened security, a standard that SB 24 is unlikely to overcome.”

The memo details previous cases like Zobel v.  Williams, the PFD structure that rewarded people for living longer in Alaska that was struck down by the U.S. Supreme Court, as well as Heller v. State and Wielechowski v. State. It notes that the requirement included in Dunleavy’s proposal is much more likely to be considered an unconstitutional durational residency requirement rather than a constitutional residency requirement.

“The requirement does not appear to operate as a bona fide residency requirement, since bona fide residency was established by the receipt of the 2016 dividend. Rather, the requirement seems more akin to a ‘reward’ to citizens for their ‘incremental years of residence,’ the very classification disavowed in Zobel,” explains the memo. “Exacerbating the issue, the repeated use of residency requirements over the three years of the dividend distributions seems to echo the ‘fixed, permanent,’ and ‘compounding’ ‘classes of bona fide residents, based on how long they have been in the state’ that led to the downfall of the dividend structure in Zobel.”

It also goes onto to explain why the argument that the repayment is just a repayment of money owed to Alaskans is “fiction,” noting that the Alaska Constitution allows the governor to adjust the amount of a dividend down meaning “residents were not owed any amount of the dividend.”

Kawasaki brought it up during the hearing, nothing that it’s the kind of legal memo that a lot of legislators have in hand.

Bill Milks, an attorney with the Department of Law, said he hadn’t seen the memo, but didn’t agree with it.

“That’s not how we see that issue,” he said. “We don’t see it that way, we think the court would look whether or not there’s a rational basis for the distinction between residents.”

He said there’s been plenty of legal challenges of other bills and that shouldn’t stop the Legislature from moving forward.

Kawasaki asked if the Dunleavy administration was aware of the potential constitutional issues before the legislation was introduced. Milks replied that the bill was constitutional in the Department of Law’s eyes, which was not what Kawasaki had asked.

“Is there some sort of statement form the Department of Law to the governor stating that there are some constitutional challenges that could arise from this or is there not?” he asked.

“We have an attorney-client relationship with the governor’s office so I’m not going to answer specifically your question, but if you want to present it to us in writing we can review it,” Milks said. “But what I can tell you is our view from the Department of Law is that this would be a constitutional piece of legislation. It would survive a constitutional challenge.”

Kawasaki and committee chair Sen. Mike Shower agreed to send the letter on behalf of the committee.

“I know each of us has a memo that says it probably isn’t (constitutional),” Kawasaki said.

Sen. John Coghill, the North Pole Republican who’s expressed misgivings about enshrining the PFD in the constitution, said he was going to ask the same question, but also asked about other legal problems facing the bill.

“It’s subject to appropriation, so that would be true on any given year, right?” he asked, hinting at the problem posed by attempting to make a multi-year appropriation in a single bill.

Milks agreed.

“The reason I’m asking that is because a constituent of mine had sent me an email saying, ‘How can one Legislature bind another?’ and, really, we can’t,” Coghill said. “The only way to do that is to say, ‘This is what we think you should do and at the end of the day it’s up to you to do that.”

Milks agreed.

“I just wanted to put that out clearly,” Coghill said.

“I think we’ve clearly seen the Legislature will do whatever it wants, to just throw that out there,” Shower said. “And, yes, I am making light of that to make everyone smile a little bit.”

[Read the full memo here]

‘We feel quite lucky if we get to a retail food establishment once a year’

Alaska’s cutbacks to food safety inspections has been going on for quite some time, but it came up again during the House Department of Environmental Conservation subcommittee meeting on Tuesday.

DEC administrative services director Jeff Rogers told the committee that the standard food inspection schedule is about four times a year (a national standard that he said also likely includes things like city-based food inspectors and the ability to, you know, drive to the restaurants), but they’re lucky if they get once a year.

There was some discussion about the potential public health costs of the cutbacks to food safety inspections, which are now largely complaint driven, but Rogers said it’s difficult—if not impossible to measure.

“We don’t know what the public health cost is for reduced rates of inspections. It’s a hard thing actually for DEC, in my experience, to talk about the efficacy and the value of a food safety program,” he said. “We are most effective if no one gets sick and if no one gets sick, then it looks like there’s nothing to worry about. If I could sit here and say, ‘Oh, no, these people got really, really sick and it’s the result somehow of DEC having not done enough inspections,’ I think I could make the case more clearly.”

He said, however, that the state does track whether food handlers are getting better or worse.

Eater beware.

What we’re reading

  • The public has a right to know just who Mary Ann Pruitt’s company, PS Strategies, was working for last year, via Alaska Public Media. Pruitt, who’s married to Republican Rep. Lance Pruitt, landed a full-time contract with the Dunleavy administration for communications services and hoped to keep her clients secret from the public: Regulators: Top Dunleavy administration official can’t conceal consulting firm’s clients
  • “We can’t afford to go back to annual battles for PCE,” said Meera Kohler, the president and CEO of the Alaska Village Electric Cooperative at a House Energy committee meeting on Tuesday. But that’s just what Dunleavy’s budget does to the power cost equalization program that’s vital to rural Alaska, via Juneau Empire: Power costs in rural Alaska could go up under governor’s proposed budget

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