Malabed v. North Slope Borough
| Decision Date | 16 May 2003 |
| Docket Number | No. S-9808.,S-9808. |
| Citation | 70 P.3d 416 |
| Parties | Robert MALABED, Plaintiff-Appellee, v. NORTH SLOPE BOROUGH, Defendant-Appellant. Morris David Welch, Plaintiff-Appellee, v. North Slope Borough, Defendant-Appellant. Charles Michael Emerson, Plaintiff-Appellee, v. North Slope Borough, Defendant-Appellant. |
| Court | Alaska Supreme Court |
William B. Schendel, Schendel & Callahan, Fairbanks, and Kenneth L. Covell, Law Offices of Kenneth L. Covell, Fairbanks, for Plaintiffs-Appellees.
David C. Crosby, David C. Crosby, P.C., Juneau, for Defendant-Appellant.
Robert A. Royce, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Amicus Curiae Alaska State Commission for Human Rights. David S. Case, Landye Bennett Blumstein, LLP, Anchorage, for Amicus Curiae Alaska Federation of Natives.
Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
The United States Court of Appeals for the Ninth Circuit certified a question to this court, asking whether a North Slope Borough ordinance enacting a hiring preference in favor of Native Americans violates state or local law. Article I, section 1, of the Alaska Constitution provides that "all persons are equal and entitled to equal rights, opportunities, and protection under the law." This provision binds local units of Alaska government, including boroughs, to govern equally and in the interest of all Alaskans. We hold that the borough lacks a legitimate governmental interest to enact a hiring preference favoring one class of citizens at the expense of others; its ordinance therefore violates the Alaska Constitution's guarantee of equal protection.
In 1997 the North Slope Borough enacted an ordinance that creates a mandatory preference for hiring, promoting, transferring, and reinstating Native Americans in borough government employment. The current version of the preference extends to all Native American applicants who are minimally qualified or meet most minimum job requirements and can meet the remaining requirements during their probationary period of employment; for purposes of the preference, "Native American" is defined to include any person belonging to an Indian tribe under federal law. The ordinance provides:
The granting of employment preference to Native Americans. The preference shall apply to hirings, promotions, transfers, and reinstatements. A Native American applicant who meets the minimum qualifications for a position shall be selected, and where there is more than one Native American applicant who meets the minimum qualifications for a position, the best qualified among these shall be selected. In instances where a Native American applicant meets most of the minimum qualifications for the position and can, during the probationary period, meet the minimum qualifications, that person will be given employment preference. If, at the end of the probationary period, all the minimum qualifications have not been met, the individual may be granted a three-month extension of the probationary period, on a one time basis, by the supervisor. If the person given employment preference is not able to meet the minimum qualifications at the end of the probationary period, he or she will be dismissed from employment and the position will be re-posted. A Native American is a person belonging to an Indian tribe as defined in 25 U.S.C. Section 3703(10).1
The borough enacted this preference after a study of economic conditions showed that the Native American population within the borough, specifically the resident Inupiat Eskimos, was both underemployed and earning substantially less money per capita than borough residents of other races. As the area's largest local employer, the borough consulted with the federal Equal Employment Opportunity Commission to determine whether the borough might qualify for an exemption from federal equal employment opportunity laws. Specifically, the borough asked about an exemption under section 703(i) of the Civil Rights Act of 1964 (the 703(i) exception),2 which excludes hiring preferences favoring Native Americans working on or near Indian reservations from the strictures of Title VII of the 1964 Civil Rights Act.3 The 703(i) exception states:
Nothing contained in this subchapter [subchapter e of 42 U.S.C. § 2000] shall apply to any business or enterprise on or near an Indian reservation with respect to any publicly announced employment practice of such business or enterprise under which a preferential treatment is given to any individual because he is an Indian living on or near a reservation.4
The commission responded that, in its view, the 703(i) exception's reference to "any business or enterprise" extended to the borough, allowing it to adopt a hiring preference in favor of Native Americans without violating Title VII's equal employment opportunity provisions, assuming that the borough met the exception's other requirements. After receiving this response, the borough assembly enacted the hiring preference by an ordinance passed in February 1997; the borough implemented the preference later that year.
Robert Malabed, Morris David Welch, and Charles Emerson (collectively Malabed) individually filed suit against the borough in federal district court, asserting that they were non-Native applicants for borough employment and had been passed over for jobs in favor of lower-ranked Native American applicants. The suits claimed that the borough's Native American hiring preference violates state and federal constitutional guarantees of equal protection, the Alaska Human Rights Act, federal civil rights laws, and the borough's charter. The district court granted summary judgment to Malabed, declaring that the preference violated the borough's charter and federal equal protection. The borough appealed to the Ninth Circuit, which has certified the following question:5
Is North Slope Borough Code § 2.20.150(A)(27), granting employment preferences to Native Americans in borough hiring, impermissible under local law, state statutory law, or the Alaska Constitution?
As already mentioned, Article I, section 1, of the Alaska Constitution guarantees equal protection, providing that "all persons are equal and entitled to equal rights, opportunities, and protection under the law." In addition, Article I, section 3, of the Alaska Constitution categorically prohibits discrimination based on race or national origin: "No person is to be denied the enjoyment of any civil or political right because of race, color, creed, sex, or national origin." The legislature implemented these provisions in part by enacting the Alaska Human Rights Act,6 which prohibits employment discrimination based on race or national origin,7 and AS 29.20.630, which specifically prohibits Alaska's municipalities—including home rule municipalities like the North Slope Borough— from engaging in racial and national origin discrimination.8 In recognition of these requirements, the borough's charter itself prohibits these forms of discrimination: "No person may be discriminated against in any borough employment because of race, age, color, political or religious affiliation, or [national] origin."9
Relying on these provisions, Malabed argues that the borough's hiring preference adopts a racial classification or, alternatively, a classification based on national origin, in violation of the Alaska Constitution. The borough responds by denying that its preference uses a race-conscious classification; instead, the borough insists, the preference adopts a well-accepted and constitutionally permissible political classification based on membership in federally recognized tribes. In advancing this argument, the borough relies chiefly on Morton v. Mancari.10
In Mancari the Supreme Court upheld a Bureau of Indian Affairs employment preference for hiring and promoting Native Americans within the BIA.11 Several non-Native American employees challenged the preference, arguing that the 1972 Equal Employment Opportunity Act had repealed the BIA's statutory authority to grant hiring preferences to Native Americans and that the preference amounted to invidious racial discrimination in violation of their Fifth Amendment due process rights.12 But the Court found that Congress had not repealed the BIA's authority to prefer Native Americans in hiring.13 And after analyzing the unique historical relationship between the federal government and Native Americans, the Court concluded that the preference was not only not invidious racial discrimination but was not based on race at all.14
The Court pointed out that the disputed BIA preference applied only to members of federally recognized tribes and thus excluded many individuals who were racially Native American.15 Noting the "unique legal status of Indian tribes under federal law" and the BIA's special interest in furthering Native American self-government, the Court held that the hiring preference was "reasonably and directly related to a legitimate, nonracially based goal."16
Assuming for present purposes that the borough's ordinance reflects this kind of political classification and does not discriminate on the basis of race, the ordinance might avoid problems with the Alaska Constitution's bar against racial discrimination. But the political nature of the classification would not necessarily insulate the ordinance from Malabed's equal protection challenge. For the borough, unlike the BIA in Mancari, has no obvious governmental interest, as a borough, in furthering Native American self-government; and Native Americans have no explicitly established "unique legal status" under borough law, as Mancari found them to have under federal law. Given these disparities between federal and local law, the legitimacy of the borough's hiring preference as a political classification is less...
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