Hicklin v. Orbeck

• Citation: 565 P.2d 159
• Decision Date: 03 June 1977
• Docket Number: No. 3025,3025
• Parties: Sidney S. HICKLIN, Ruby E. Dorman, Betty Cloud, Tommy Ray Woodruff, Frederick A. Mathers, Harry A. Browning, Emmett Ray, and Joseph G. O'Brien, Appellants, v. Edmund ORBECK, Commissioner of the Department of Labor of the State of Alaska, and Guy Richard Martin, Commissioner of the Department of Natural Resources of the State of Alaska, Appellees.
• Court: Supreme Court of Alaska (US)

Page 159

565 P.2d 159

Sidney S. HICKLIN, Ruby E. Dorman, Betty Cloud, Tommy Ray

Woodruff, Frederick A. Mathers, Harry A. Browning, Emmett Ray, and Joseph G. O'Brien, Appellants, v. Edmund ORBECK, Commissioner of the Department of Labor of

the State of Alaska, and Guy Richard Martin,

Commissioner of the Department of

Natural Resources of the State

of Alaska, Appellees.

No. 3025.

Supreme Court of Alaska.

June 3, 1977.

Robert H. Wagstaff, Wagstaff & Middleton, Anchorage, for appellants.

Ronald W. Lorensen, Asst. Atty. Gen., and Avrum M. Gross, Atty. Gen., Juneau, for appellees.

OPINION

Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR, ERWIN and BURKE, JJ.

CONNOR, Justice.

I

This case considers the constitutionality of the "Alaska Hire" law, AS 38.40. "Alaska Hire," enacted in 1972 and amended in 1976, requires that all oil and gas leases, easements or right-of-way permits for oil or gas pipelines, unitization agreements or any renegotiation of any of these to which the state is a party, contain a requirement that qualified Alaska residents be hired in preference to nonresidents. The statute does not apply to other private employment, nor to public employment. ¹ AS 38.40.090(1) defines a resident for these purposes as a person meeting five criteria there listed, of which the most important is that the person must have been physically present in the state, with certain exceptions, for one year. ²

The law was not seriously enforced until 1975, when the state department of labor began issuing residency cards to those who met the statutory standards, and dispatching to pipeline jobs only persons with cards. This suit was filed shortly thereafter.

The eight plaintiffs, appellants here, include non-residents (some of whom have worked on the oil pipeline in the past), persons who have been residents less than one year, and a life-long resident who is not considered a resident for Alaska Hire purposes since he was out of the state for several months last year. The defendants and appellees are Edmund Orbeck, commissioner of labor, and Guy Richard Martin, commissioner of natural resources. They will be referred to as "the state."

The plaintiffs make two major arguments: that the one-year durational residency requirement violates the state and federal equal protection clauses, and that any residency requirement violates the privileges and immunities clause of Article IV of the United States Constitution. ³

By consent of the parties, consideration of the motion for preliminary injunction and of the merits was consolidated. The case was submitted on affidavits, depositions, and memoranda of law. No oral testimony was taken. On July 21, 1976, the superior court upheld the law in its entirety and entered judgment in favor of the defendant state officials. This appeal was filed the following day.

Preliminarily, the state asserts that the plaintiffs are not entitled to bring this suit because they lack standing and failed to exhaust their administrative remedies. We find these contentions without merit.

Five of the plaintiffs have sworn under oath that they are not residents of Alaska. Under AS 38.40.090(1)(D), they are not eligible to receive residency cards, and, since the department of labor cannot waive the statutory criteria, pursuit of administrative remedies would be useless. See Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 2466, 45 L.Ed.2d 522, 538-39 (1975); Pence v. Morton, 391 F.Supp. 1021, 1025 n. 3 (D.Alaska 1975), rev'd on other grounds (and this holding approved), 529 F.2d 135, 143 (9th Cir. 1976). Therefore, they have standing to challenge the residency requirement.

Plaintiffs Browning and Dorman are residents who have not lived in Alaska for one continuous year. Under the statute, they are ineligible for residency cards, and administrative remedies could not make them eligible. They therefore have standing to challenge the one-year residency requirement. ⁴

Browning and Dorman executed their affidavits in May 1976. Since the preparation of the record on appeal, they may have met the one-year residency requirement. If so, the case is technically moot as to them. Nevertheless, we will address their contentions as though they were not moot, under the recognized exception to the mootness doctrine for cases "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310, 316 (1911); see e. g., Dunn v. Blumstein, 405 U.S. 330, 333 n. 2, 92 S.Ct. 995, 998 n. 2, 31 L.Ed.2d 274, 279 n. 2 (1972); Doe v. State, 487 P.2d 47, 53-54 (Alaska 1971). Challenges to one-year residency requirements can seldom be pursued through both trial and appellate stages within the one year in which a given plaintiff is aggrieved. Yet there will always be others who have been residents for less than one year. If we required one of them to begin a new suit, it would probably be moot before appellate review could be obtained. There would never be a decision on the merits.

II

Durational residence requirements are subject to strict scrutiny under the equal protection clauses of the federal and state constitutions because they penalize those who have exercised their fundamental right of interstate migration. ⁵ Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974) (nonemergency medical care at public expense, 1 year); Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) (voting, 1 year); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (welfare benefits, 1 year); Gilbert v. State, 526 P.2d 1131 (Alaska 1974) (legislative candidacy, 3 years, upheld); State v. Adams, 522 P.2d 1125 (Alaska 1974) (divorce, 1 year); State v. Wylie, 516 P.2d 142 (Alaska 1973) (public employment, 1 year); State v. Van Dort, 502 P.2d 453 (Alaska 1972) (voting, 75 days).

Under strict scrutiny, the law must be struck down unless the state can demonstrate that it is necessary to further a compelling state interest, and is the least drastic means available to further that interest. Dunn v. Blumstein, supra, 405 U.S. at 342-43, 92 S.Ct. at 1003-04, 31 L.Ed.2d at 284-85. ⁶

In its two most recent durational residency cases, the United States Supreme Court has abandoned this standard. Maricopa, supra (striking down a 1-year requirement for non-emergency medical care at public expense); Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975) (upholding a 1-year requirement for divorce). In Maricopa the Court was concerned with the nature of the public benefit withheld during the waiting period, stating that a durational residency requirement will be struck down only if it penalizes the right of migration by depriving the recent migrant of a basic necessity of life. This was not enunciated in Sosna although it is not entirely plausible explanation for Sosna as well. It has been criticized from a variety of viewpoints. See, e. g., Maricopa, supra, 415 U.S. at 284-88, 94 S.Ct. at 1094-97, 39 L.Ed.2d at 329-32 (Rehnquist, J., dissenting); Barrett, Judicial Supervision of Legislative Classifications A More Modest Role for Equal Protection?, 1976 B.Y.U.L.Rev. 89, 118-20; Comment, A Strict Scrutiny of the Right to Travel, 22 U.C.L.A.L.Rev. 1129 (1975).

We have never used this "basic necessities" reasoning. See generally Comment, Durational Residency Requirements: The Alaskan Experience, 6 U.C.L.A.-Alaska L.Rev. 50 (1976). On the other hand, our use of strict scrutiny has not always resulted in holding challenged laws unconstitutional. In Gilbert v. State, supra, we upheld the 3-year residency requirement for members of the legislature imposed by Article II, section 2 of the Alaska Constitution. We held that it was the least restrictive means available to further the compelling state interests in having the voters familiar with their legislators, and legislators familiar with the state and its problems.

With that background, we proceed to subject the Alaska Hire law to strict scrutiny. The principal precedent is State v. Wylie, supra, in which we held unanimously that the state could not give a preference in public employment to persons who had lived in Alaska for a year before applying.

The interests which the state seeks to further through the Alaska Hire law are similar to those which were claimed to be "compelling" in Wylie. They are set forth in AS 38.40.010 and .020. ⁷ Through Alaska Hire, the state seeks to reduce the high unemployment rate for Alaska residents, and to use the extraction of Alaska's natural resources as an opportunity to cultivate its human resources. ⁸ Reducing unemployment, the state said in Wylie, was also the goal of a durational residency requirement for civil servants.

In Wylie, we found that a durational residency requirement for civil servants was not the least drastic means to further this governmental interest. 516 P.2d at 149. Indeed, we seriously questioned whether it furthered that interest at all. Unemployment in Alaska, we noted, is caused in large part by lack of education and vocational training, and there are few jobs public or private in rural areas where unemployment is highest. The durational residency requirement did not increase the number of jobs, nor did it necessarily hold down immigration into the state. Id. Job training, we suggested, would probably be a more effective way to reduce unemployment, and would not discriminate against recent migrants. Id. at 149 n. 14.

The superior court found that each of these concerns of Wylie is met by AS 38.40 and the manner in which the state has implemented it. Pipeline jobs are mostly in the rural areas and workers are not required to permanently relocate themselves and their families to their place of employment. The workers are fed and housed by their employers and they are able to return to their homes and families during vacation periods. On the other hand, workers are dispatched to many such jobs from union...