Schafer v. Vest ( 1984 )

BURKE, Chief Justice,

concurring.

I concur in the court’s interpretation of the requirements of the fourteenth amendment, and its decision to affirm the judgment of the superior court. I would base our decision, however, on independent state grounds.

Alaska’s founding fathers were not content merely to echo the requirements of the fourteenth amendment, which guarantees all persons “equal protection of the laws.” They intended to provide the citizens of this state with broader protection than they are entitled to under the Constitution of the United States. Thus, they adopted a provision that is quite different in its terminology, declaring “that all persons are equal and entitled to equal rights, opportunities, and protection under the law.” Article I, section 1, Alaska Constitution (emphasis added).

The proceedings of the Alaska Constitutional Convention make it abundantly clear that this difference is one of substance, rather than mere style. Delegate Awes, for example, in explaining this choice of language to the Convention, stated: “We do mean all three [guarantees]. I think [such language] means [people] are entitled to equal rights, equal opportunities, and equal protection under the law.” 5 Proceedings of the Alaska Constitutional Convention 3868 (February 3, 1956) (emphasis added). Delegate Johnson, phrasing it somewhat differently, stated: “There are two things that are provided for here. One is that all persons are equal under the law and the other is that they are entitled to equal rights and opportunities under the law. They are two separate and distinct things.” Id. at 1293 (January 5, 1956).

The Longevity Bonus Program, regardless of what might be said in its defense under federal notions of equal protection, fails to provide many citizens of the state with equal rights and opportunities, contrary to the express provisions of article I, section 1. It is intended, in fact, to do just the opposite. Persons who were not domiciled in Alaska prior to January 3,1959, are automatically and forever barred from sharing in the program’s monetary benefits.¹ Even those thus qualified must meet the additional requirement of 25 years of continuous domicile. Thus, the program applies only to a select class, for which one qualifies solely on the basis of the date of his or her arrival in Alaska, followed by a prescribed period of continuous domicile. I see no substantial relationship between these requirements and any legitimate state purpose. See State v. Erickson, 574 P.2d 1, 11-12 (Alaska 1978) (equal protection analysis under the Alaska Constitution explained).

Thus, I would affirm the superior court’s judgment on the ground that the Longevity Bonus Program violates article I, section 1 of the Alaska Constitution. It does so because it denies Vest and the members of the class rights and opportunities equal to those given to other citizens of the state, for reasons that are impermissible. This is the case whether or not our interpretation of the requirements of the fourteenth amendment is correct, since article I, section 1 provides express guarantees beyond those contained in the fourteenth amendment.

Our duty, as I see it, is to look first to the requirements of the Alaska Constitution. If the protection sought is afforded by that document, it becomes irrelevant whether or not the same protection is provided by the Constitution of the United States.

1 . The program in this case is distinguishable from the permanent fund dividend distribution plan that was before us in Williams v. Zobel, 619 P.2d 448 (Alaska 1980), reversed 457 U.S. 55, 102 S.Ct. 2309, 72 L.Ed.2d 672 (1982). There, we observed: "Under the terms of the [dividend distribution] program, it is clear that there is no absolute denial. A new resident is immediately eligible for some portion;of a dividend; and this new resident’s achievement of the level of dividends currently held by a long-term resident ... is only a matter of delay_” 619 P.2d at 456. In the case at bar, one who was not domiciled in Alaska on or before January 3, 1959 can never qualify for receipt of longevity bonus payments.