Heller v. State

• Decision Date: 06 December 2013
• Docket Number: No. S–13551.,S–13551.
• Citation: 314 P.3d 69
• Parties: Richard HELLER, Appellant, v. STATE of Alaska, DEPARTMENT OF REVENUE, Appellee.
• Court: Alaska Supreme Court

314 P.3d 69

Richard HELLER, Appellant,

v.STATE of Alaska, DEPARTMENT OF REVENUE, Appellee.

No. S–13551.

Supreme Court of Alaska.

Dec. 6, 2013.

Andy Harrington, Alaska Legal Services Corporation, Fairbanks, and James J. Davis, Jr., Alaska Legal Services Corporation, Anchorage, for Appellant.

Michele Kane, Assistant Attorney General, Juneau, and Ruth Bottstein, Assistant Attorney General, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for Appellee.

Before: CARPENETI, Chief Justice, FABE, WINFREE, STOWERS, and MAASSEN, Justices.

OPINION

CARPENETI, Chief Justice.

I. INTRODUCTION

A member of the military moved to a new post in Alaska in June 2005. Two months later, he was deployed to Iraq. After 16 months of service in Iraq, he returned to Alaska in December of 2006. Shortly thereafter, he applied for the 2007 Permanent Fund Dividend (PFD), which is paid in recognition of the applicant's eligibility during 2006. The Department of Revenue denied his application. The service member filed an informal appeal and later a formal appeal with the Department, both of which were denied. The superior court affirmed the denial,concluding that the relevant statute required him to reside in Alaska for six months before claiming an allowable absence for military service and that the statute did not violate equal protection under the U.S. and Alaska Constitutions. The service member appeals. Because he was not eligible for the 2007 PFD under AS 43.23.008, and this statute is consistent with the requirements of the U.S. and Alaska Constitutions, we affirm the judgment of the superior court.

II. FACTS AND PROCEEDINGS

In June 2005 the U.S. Army assigned Richard Heller to the Headquarters Company of the 172nd Stryker Brigade, an Alaska-based unit. He arrived in Alaska on June 17, 2005. Upon arrival, Heller registered to vote, obtained an Alaska driver's license, and changed his military records to indicate Alaska residency. On August 14, 2005, Heller was deployed to Iraq. Although Heller's service in Iraq was initially scheduled to last one year, the army extended his stay an additional 120 days. Heller finally returned to Alaska on December 11, 2006.

In March 2007 Heller applied for a Permanent Fund Dividend to be paid in 2007 for the 2006 qualifying year.¹ Several months later, Heller received a letter from Alaska's Department of Revenue (the State) denying his application. The letter explained that pursuant to AS 43.23.008(b) Heller was not eligible for the PFD because he was not an Alaska resident for at least six consecutive months before leaving the state. Heller filed a request for informal appeal, arguing that the short duration of his stay in Alaska prior to leaving the state should not prevent him from receiving a PFD because his position in the Army required him to go to Iraq. A PFD technician denied Heller's appeal. However, the denial included several erroneous facts. It stated that Heller had arrived in Alaska on June 17, 2006, when he had actually arrived exactly one year earlier. It also stated that Heller had failed to obtain an Alaska driver's license, register to vote in Alaska, and register a vehicle in Alaska, when he had actually done all three. Pointing out these errors, Heller filed a request for a formal hearing.

The Office of Administrative Hearings held a formal hearing on December 27, 2007. Despite adopting Heller's corrected version of the facts, the administrative law judge denied Heller's appeal. The judge noted that under AS 43.23.008(a)(3), it is possible for a person serving in the armed forces to retain PFD eligibility while living in another state or country during the qualifying year. However, the judge went on to explain that a person can take advantage of this allowable absence provision only if he was an Alaska resident for at least 180 days immediately before leaving the state.² Because there is no exception for involuntary absences, and Heller was a state resident for at most 59 days before leaving for Iraq, the judge concluded that Heller was not entitled to the 2007 PFD.

Heller appealed to the superior court, which closely examined the issues and affirmed the administrative decision. Heller appeals, arguing that the superior court's decision relies on a misinterpretation of the statute. In the alternative, Heller asserts that if the superior court's reading of the statute is correct, and he is precluded from receiving a 2007 PFD, the statute violates equal protection under both federal and state law.

III. STANDARD OF REVIEW

When the superior court acts as an intermediate appellate court, we independently review the merits of the underlying administrative decision. ³ The specific form our independent review takes is de novo review: We adopt the rule of law that is most persuasive in light of precedent, reason, and policy.⁴

Heller contests an agency's interpretation of one of its governing statutes. Because the interpretation involves legislative intent rather than agency expertise, we apply independent review here as well. ⁵ But the specific form our independent review takes is distinct from pure de novo review. We apply the substitution-of-judgment standard.⁶ Under this standard, we again adopt the rule of law that is most persuasive in light of precedent, reason, and policy, but in doing so we give due deliberative weight “to what the agency has done, especially where the agency interpretation is longstanding.” ⁷

Constitutional interpretation presents questions of law that are subject to independent review under the de novo standard.⁸

IV. DISCUSSIONA. Heller Does Not Meet The Eligibility Requirements Of AS 43.23.008.

Alaska Statute 43.23.005(a) sets out the basic eligibility requirements for receiving a PFD. In pertinent part, the statute requires that an applicant “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.” ⁹Alaska Statute 43.23.008(a) enumerates the physical absences that are allowed.¹⁰ In pertinent part, it states:

(a) Subject to (b) and (c) 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 ...;

...

(16) for any reason consistent with the individual's intent to remain a state resident, provided the absence or cumulative absences do not exceed

(A) 180 days in addition to any absence or cumulative absences claimed under (3) of this subsection .... ¹¹

Alaska Statute 43.23.008(b) provides:

An individual may not claim an allowable absence under (a)(1)-(15) of this section unless the individual was a resident of the state for at least six consecutive months immediately before leaving the state.¹²

The question before us is whether Heller may claim an “allowable absence” for the period of time he was away from Alaska, serving in Iraq.

Heller argues that he is entitled to simultaneously claim two allowable absences: an allowable absence under subsection (a)(3) for his military service, and an allowable absence under subsection (a)(16) “for any reason consistent with [his] intent to remain a state resident.” He acknowledges that a person only claiming an allowable absence under subsection (a)(3) is subject to a prior residency requirement of six months. He also does not contest that because he did not move to Alaska until June 2005, he had only been an Alaska resident for two months before leaving the state.

However, Heller points to subsection (a)(16), under which he is entitled to an additional 180 days out of the state “for any reason consistent with [his] intent to remain a state resident.” ¹³ Unlike subsection (a)(3), subsection (a)(16) is not subject to the six-month residency requirement. Heller argues that because the six-month requirement does not apply to absences under (a)(16), he should be able to apply subsection (a)(16)' s 180 days to the period immediately following his August 2005 departure for Iraq. In Heller's view, by the time he had exhausted those 180 days, he had already been a resident of the state for over six months, and was therefore eligible for subsection (a)(3)'s allowable absence for military service. Heller argues that he should be allowed to combine subsections (a)(3) and (a)(16) in this manner because, according to Heller, the statute's text and legislative history support his interpretation.

The State disagrees. It argues that Heller's interpretation ignores the plain language of the statute, renders language in the statute superfluous, and undermines the legislature's intent to limit the dividend to permanent residents. It points to the plain language of AS 43.23.008(b), which states that in order for an applicant to claim an allowable absence under subsection (a)(3), he must have been “a resident of the state for at least six consecutive months immediately before leaving the state.” ¹⁴ The State observes that, contrary to the statute's explicit language, Heller's interpretation of the statute would allow him to claim the allowable absence even though he had been a resident for less than six months before leaving.

To resolve this dispute we must look to the language and purpose of the statute. “The objective of statutory construction is to give effect to the intent of the legislature, with due regard for the meaning that the statutory language conveys to others.” ¹⁵ We give unambiguous statutory language its ordinary and common meaning, but the “plain meaning” rule is not an exclusionary rule; we will look to legislative history as a guide to construing a statute's words.¹⁶ “The plainer the meaning of the statute, the more persuasive any legislative history to the contrary must be.” ¹⁷

In this case, the statute's language is reasonably clear. It provides:

An individual may not claim an allowable absence under (a)(1)-(...