Isakson v. Rickey
| Decision Date | 21 May 1976 |
| Docket Number | No. 2550,2550 |
| Parties | Ivar ISAKSON et al., Appellants, v. Roy RICKEY et al., Appellees. |
| Court | Alaska Supreme Court |
Randall J. Weddle, Faulkner, Banfield, Doogan & Holmes, and James F. Clark, Robertson, Monagle, Eastaugh & Bradley, Juneau, for appellants.
Avrum M. Gross, Atty. Gen., and Rodger W. Pegues, Asst. Atty. Gen., Juneau, for appellees.
Before RABINOWITZ, CONNOR, ERWIN and BURKE, Justices, and DIMOND, Justice Pro Tem.
This appeal involves a challenge to a section of Alaska's Limited Entry Act, AS 16.43.010 et seq., which was enacted by the State Legislature in 1973. The Act created the Alaska Commercial Fisheries Entry Commission and a scheme for precluding entry of some fishermen into the Alaska commercial fisheries. Appellants, all Alaska commercial fishermen, contend that a certain provision of the Act denies them equal protection of the laws and is therefore unconstitutional.
A brief review of the history of limited entry in Alaska is necessary to understand the positions of the litigants.
In the past, entry into commercial fishing was relatively easy because the industry provided inexpensive financing for boats and gear. As a consequence even people engaged in other primary employment could obtain the funds necessary to begin fishing commercially and, because it was not the major source of their livelihood, could afford to participate at marginal economic levels. 1
Since 1960, the commercial use of the various authorized gear used for taking fish has required a gear license. While more than one person could participate in operating a given unit of gear, i. e., partners, crewmen, spouses or children, each unit engaged in commercial fishing generally had but one gear license. Accordingly, the number of gear licenses actively in use represented the number of units of gear actually engaged in any fishery. Between 1960 and 1972, the number of units of gear licensed in the Alaska salmon fisheries increased from 6,512 to 11,363. Thus, while the supply of salmon decreased, the fishing effort measured by the number of units of gear operating in the fisheries increased significantly.
The commercial fisheries are unquestionably an important economic resource of the State. To maintain the maximum biological and the optimum economic sustained yields for those engaged in commercial fishing, it became apparent that some action was necessary.
In August, 1972, the people of Alaska voted overwhelmingly to amend the State Constitution to permit the adoption of a limited entry program for the commercial fisheries. 2 In January of 1973, the Governor proposed legislation for a limited entry program to the state legislature. As introduced, the bill required entry permits in order to operate gear after January 1, 1974. The Alaska Commercial Fisheries Entry Commission was established under the bill to determine who would receive the limited number of permits, with selection to be based upon certain hardship standards, e. g., degree of economic dependence on the fishery and extent of past participation in the fishery. It was specifically provided that those who received the entry permits could subsequently sell them at fair market value. 3
With regard to who could submit applications, the original bill provided that the 'commission shall establish the opening and closing dates, places and form of application for entry permits. . . .' 4 When the bill was before the legislature, it was modified so that only holders of gear licenses could apply for the entry permits. Finally, just prior to being sent to the Governor for approval, the bill was again changed to read:
The commission shall accept applications for entry permits only from applicants who have harvested fishery resources commercially while participating in the fishery as holders of gear licenses issued under AS 16.05.536-16.05.670, before January 1, 1973. (Emphasis added) The case at bar concerns this added provision, hereinafter referred to as AS 16.43.260(a). 5
The plaintiffs in the action below (and the appellants herein) became holders of gear licenses after January 1, 1973. These plaintiffs sought a declaratory judgment, a preliminary injunction, and a permanent injunction against the Commercial Fisheries Entry Commission (appellees herein) to prevent enforcement of the Act. The plaintiffs argued, among other things, that the cut-off date of January 1, 1973, which prevented them from submitting an application for a free commercial fishing entry permit, denied them equal protection of the laws. Following a hearing, the motion for a preliminary injunction was denied and cross motions for summary judgment were filed. The trial court granted appellees' motion for summary judgment.
The plaintiffs below appeal the trial court's decision contending that the date utilized in AS 16.43.260(a) violates the equal protection clause of the Fourteenth Amendment to the United States Constitution which prohibits states from denying 'to any person within its jurisdiction the equal protection of the laws,' and under the similar provision of the Alaska Constitution, art. I, § 1. Specifically, appellants argue that the legislature devised the January 1, 1973, cut-off date to facilitate the Commission's selection process by eliminating those applicants whom they believed would be unable to demonstrate the hardship necessary for an entry permit. From this base they submit that the January 1, 1973, date results in a classification which is overbroad and underinclusive. Appellants point out that a person who has retired or discontinued commercial fishing prior to January 1, 1973, is allowed to apply for a free permit regardless of the degree of hardship he would suffer by being excluded from the fisheries simply by virtue of fortuitously holding a gear license before the cut-off date. On the other hand, persons such as appellants, are precluded from even submitting an application because they became gear license holders after January 1, 1973. This is so despite the fact that they have engaged in commercial fishing endeavors in previous years and have invested large amounts of money in gear and vessels with the intention of fishing commercially for a living in the future. Thus, they submit, the classification is unconstitutional.
In the past this court has applied the traditional tests in analyzing equal protection problems. Thus, previous cases have spoken in terms of the 'rational basis' test and the 'compelling state interest' test, depending on whether or not the right sought to be regulated was fundamental in a constitutional sense or involved a suspect classification. Too often, however, the label applied preordained the outcome of the case. Because of this fact, recent decisions by this court noted a growing dissatisfaction with the two-tiered test.
In State v. Wylie, 6 we observed:
Several recent decisions of the Supreme Court of the United States have evidenced discontent with the strict scrutiny standard called for by the 'compelling state interest' test and the 'minimal scrutiny' resulting from employment of the 'rational basis' criteria. For an analysis of this development see Professor Gunther's foreword to The Supreme Court, 1971 Term. 86 Harv.L.Rev. 1, 1724 (1972).
In State v. Adams 7 we cited the above passage from Wylie and recognized that the United States Supreme Court 'may be searching for a new equal protection analysis.'
In a subsequent opinion, Lynden Transport, Inc. v. State, 8 we wrote:
It has been suggested that there is mounting discontent with the rigid two-tier formulation of the equal protection doctrine, and that the United States Supreme Court is prepared to use the clause more rigorously to invalidate legislation without expansion of 'fundamental rights' or 'suspect' categories and the concomitant resort to the 'strict scrutiny' tests. We are in agreement with the view that the Supreme Court's recent equal protection decisions have shown a tendency towards less speculative, less deferential, more intensified means-to-end inquiry when it is applying the traditional rational basis test and we approve of this development.
Finally, in Ravin v. State, 9 the court quoted the foregoing passage from Lynden Transport, and, in addition, noted that '(t)his court has previously applied a test different from the rigid two-tier formulation to state regulations.' 10 The different test was enunciated in Wylie v. State 11, despite the fact that we utilized the 'compelling state interest' standard therein because the constitutional right to travel was affected by the legislation. In Wylie we articulated a 'rational basis' test which was more demanding than the standard used in previous cases. Citing two United States Supreme Court cases 12 in which the rational basis standard was applied in a fairly rigorous, non-deferential way we wrote:
Under the rational basis test, in order for a classification to survive judicial scrutiny, the classification 'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.' 13
It is this more flexible and more demanding standard which will be applied in future cases if the compelling state interest test is found inappropriate. As a result, we will no longer hypothesize facts which would sustain otherwise questionable legislation as was the case under the traditional rational basis standard. Thus, under the new test
Judicial deference to a broad range of conceivable legislative purposes and to imaginable facts that might justify classifications is strikingly diminished. Judicial tolerance of overinclusive and underinclusive classifications is notably reduced. Legislative leeway for unexplained pragmatic experimentation is substantially narrowed. 14
The threshold determination, then, is whether the compelling...
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...state equal protection clause. See Alaska Pacific Assur. Co. v. Brown, 687 P.2d 264 (Alaska 1984); Erickson, 574 P.2d 1; Isakson v. Rickey, 550 P.2d 359 (Alaska 1976). See also Sonneman v. Knight, 790 P.2d 702 (Alaska 1990). In Zsupnik v. State, 789 P.2d 357 (Alaska 1990), as an incident of......
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