State Ex Rel. Departments of Transportation & Labor v. Enserch Alaska Construction, Inc.

BURKE, Justice,

concurring.

The question in this case, as I see it, is not whether the state’s interest in promoting regional hire outweighs the individual plaintiffs’ interest in equal treatment. The question is whether the state is doing something which is prohibited by the Alaska Constitution.

Some things are unlawful simply because they are constitutionally prohibited. Ex post facto laws and bills of attainder, for example, are unlawful under both the state¹ and federal² constitutions, whether or not there is an important, even an overwhelming, governmental (public) interest to be served by passage and enforcement of such measures. Thus, one of our earliest cases contains the observation “that the [state’s] police power — broad and comprehensive though it is — may not be exercised in contravention of plain and unambiguous constitutional inhibitions.” Matthews v. Quinton, 362 P.2d 932, 944 (Alaska 1961).

Article I, section 1 of the Alaska Constitution states, among other things, “that all persons are equal and entitled to equal rights [and] opportunities.” This, as I read it, amounts to an express limitation upon the otherwise plenary power of the state to deny its citizens equal employment rights and opportunities.³

Since it is possible for us to do so, we must construe article I, section 1 to be self-executing. Alaska Const, art. XII, § 9. Thus construed, I believe article I, section 1 prohibits the regional hiring preference authorized by AS 36.10.160 and imposed in the case at bar. See Robison v. Francis, 713 P.2d 259, 271-72 (Alaska 1986) (Burke, J. concurring) and Shafer v. Vest, 680 P.2d 1169, 1171-72 (Alaska 1984) (Burke, C.J., concurring).

My conclusion renders much of the court’s “equal protection” analysis superfluous. I concur, however, in the result and the views expressed in the remainder of the court’s opinion.

1 . Alaska Const, art. I, § 15.

2 . U.S. Const. art. I, § 9.

3 . Unlike the federal government, which may exercise only those powers expressly or impliedly delegated to it by the United States Constitution, a state's legislative power is plenary. Thus, a state is free to enact any law not forbidden by its own constitution or federal law. Deras v. Myers, 272 Or. 47, 535 P.2d 541, 544 n. 3 (1975) (citation omitted).