Kjarstad v. State , 1985 Alas. LEXIS 289 ( 1985 )

COMPTON, Justice,

dissenting in part.

The question in this case is not whether Kjarstad submitted “false information.” Clearly he did, a conclusion implicitly accepted by this court and then disregarded. Kjarstad was not domiciled in Alaska on December 31, 1976, although he asserted he was. His domicile address was not a post office box in Ketchikan, although he asserted it was. He submitted an Alaska resident certification card, obtained in March 1977, as evidence that he was entitled to such a card on December 31, 1976, which under no set of facts is supportable. Certainly this material is “information,” and in the context of its intended use, it is false information.

By its summary conclusion, the court fails to provide the CFEC or others who may be affected by its decision any working definition of what is “false” or “false information,” except by way of example.¹ Yet “false” has several common meanings in the law, which this court either rejects or ignores. For instance, Black’s Law Dictionary 540 (5th ed. 1979), defines “false,” among other things as: “assumed or designed to deceive,” “deceitful,” “wilfully and intentionally untrue.” (citation to cases omitted). Even those not bound by legal argot will find similar definitions in Websters Third New International Dictionary 819 (1969): “deceitful,” “being other than what is purported or apparent.”

The question that should be addressed should focus on Kjarstad’s state of mind. Did he “knowingly” submit false information? ² It is true that not every witness offers false information, or that those who do, knowingly do so. However, it is just as true that some witnesses do knowingly offer false information. The CFEC found Kjarstad had done so. In affirming the CFEC, the superior court concluded:

Appellant [Kjarstad] argues that he had sufficient connections with the State of Alaska in 1976 to support a reasonable belief that he was domiciled in this state. Thus, even if his actual domicile was in Washington, he was ignorant of this fact and consequently did not knowingly submit a false domicile claim.

The record provides substantial evidence, however, to support the commission’s finding that Kjarstad knew (or should have known) at the time he submitted his application, that he was a Washington domiciliary and that his claim was false. Kjarstad accepted benefits of Washington residency from 1976 through 1979 including voting privileges and reduced fishing license fees. Furthermore, of the items listed in the application instructions as evidence of domicile, at least three would have supported a claim of Kjarstad’s Washington domicile (i.e., voter registration, driver’s license, and receipts from property expenses). No evidence in the record suggests that any of the listed items could have supported Kjarstad’s claim of Ket-chikan domicile. Finally, the applicant’s failure to fill in the domicile certification section of the application can be interpreted as evidence that Kjarstad was aware his claim was false and that he was reluctant to certify otherwise.

Appellant alleges nevertheless that he was convinced of his Ketchikan domicile status. Yet as fact-finder, the commission decided to reject this allegation and concluded that the applicant did know his domicile claim was false. In light of the number of factors in the record supporting this conclusion of which Kjarstad was aware (or should have been aware), this court cannot say that the commission’s decision was not supported by substantial evidence.

I agree with the preceding analysis, and am not persuaded that this court’s facile avoidance of the issue is supportable.

1 . The court’s treatment of this aspect of its decision is reminiscent of Justice Stewart’s inability to define pornography: “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.” Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12 L.Ed.2d 793, 803-04 (1964), (Stewart, J., concurring). Defining "false” should not pose such an obstacle for this court.

2 . If it is indeed correct that this court need not address whether Kjarstad "knowingly" submitted false information, since the court concludes he did not submit "false information” in the first place, it follows that the court’s discussion of retrospectivity and domicile is irrelevant. If the information was not false, no one should care whether the statute is retrospective or where Kjarstad is domiciled. The exercise may be intellectually satisfying; however,, the conclusions are merely dicta. '