Hicklin v. Orbeck

Ruby Sidney HICKLIN, Dorman, E. S. Bet Cloud, Ray Woodruff,

ty Tommy Freder Harry Mathers, Browning,

ick A. A. Em O’Brien, Ray, Joseph Appel

mett G.

lants, ORBECK,

Edmund Commissioner of the

Department of Labor State of

Alaska, Martin, Guy Richard Com Department

missioner of the of Natural Alaska, Appel

Resources of the State

lees.

No. 3025.

Supreme Court Alaska.

June

OPINION BOOCHEVER, J., Before C. and RABI- WITZ, CONNOR, NO BURKE, ERWIN and JJ.

CONNOR, Justice.

I This case considers the constitutionality law, of the “Alaska Hire” AS 38.40. “Alas-. Hire,” ka enacted in 1972 and amended in 1976, requires leases, that all oil and gas permits easements or right-of-way for oil or gas pipelines, agreements unitization or any renegotiation any of these to which the party, requirement state is a contain a qualified Alaska residents be hired in pref- The erence nonresidents. statute does apply private not to other employment, nor public employment.1 AS 38.40.090(1) for these purposes defines resident as a meeting listed, five criteria there person important is that person which the most physically present must have been in the state, exceptions, for year.2 with certain one seriously The law was enforced until department when the of labor began issuing residency cards to those who standards, statutory dispatch- met the and ing pipeline jobs only persons with cards. shortly This suit was filed thereafter. here, eight plaintiffs, appellants in- (some clude non-residents of whom- have Wagstaff, Wagstaff Robert H. & Middle- pipeline past), worked on the oil ton, Anchorage, appellants. for persons who have been residents less than Lorensen, Gen., Atty. Ronald W. Asst. who is resident year, life-long one and a Gross, Gen., Juneau, and Avrum Atty. M. Hire pur- a resident for Alaska considered appellees. for the state poses since he was out of for institution, cause, good or for absences for jobs 1. The number of varies covered the law period present physically state for a petroleum with the number and size of pipeline projects progress. immediately In June year before the time his one applied commissioner of labor testified that determined; status is 12,000 jobs, approximately percent to about place (B) of residence maintains employment of the total in the state. state; applies pipeline Alaska Hire to the oil now residency voting (C) pur- has established stages apply the final will construction. It state; poses in the any gas pipeline. any to gas natural Should oil and not, period (D) required within renegotiated, apply leases ever be it will residency state; residency, in another claimed gas them. development It will to offshore oil and present under state leases. The Slope gas (E) attending North oil and leases are not covered all circumstances shows they prior July since were entered into perma- intent is to make Alaska that his his 1972, the effective date of AS 38.40. See AS nent residence.” 38.40.050(a). 38.40.090(1) 2. AS reads: “ person ‘resident’ means a who intervals, military (A)except ser- for brief vice, training attendance at an educational or

X62 Browning are The defendants Plaintiffs and Dorman year. last months several Orbeck, in Alaska for commis- residents who not lived are Edmund appellees Martin, statute, year. Richard one continuous Under labor, Guy sioner cards, They they ineligible residency resources. of natural commissioner remedies could not “the state.” administrative make referred will be eligible. They therefore have stand them major argu- two make plaintiffs req challenge one-year ing residency durational resi- one-year ments: uirement.4 the state and violates requirement dency clauses, and that equal protection federal Dorman executed Browning and violates requirement priv- 1976. Since the May their affidavits clause of Article IV and immunities ileges appeal, they preparation of the record Constitution.3 United States one-year residency have met the re consideration parties, consent the By so, case quirement. technically If is injunction for preliminary the motion Nevertheless, them. we will moot consolidated. The of the merits was though they address their contentions as affidavits, deposi- was on case submitted moot, recognized excep under the were tions, and of law. No oral tes- memoranda tion to the mootness doctrine for cases “ca 21, July 1976, the timony was taken. On pable yet evading review.” repetition, law its upheld entirety court superior ICC, v. 219 Pacific Terminal Co. Southern judgment in favor of de- and entered 310, 498, 515, 279, 283, 31 55 L.Ed. S.Ct. U.S. appeal state officials. This fendant Blumstein, (1911); see e. Dunn v. g., 316 following day. filed the 2, 2,n. n. 333 92 S.Ct. 998 2 v. (1972); 31 279 n. Doe L.Ed.2d Preliminarily, the state asserts State, 1971). (Alaska 487 P.2d 53-54 bring plaintiffs not entitled this suit are residency Challenges require to one-year standing lack and failed they because through ments both pursued can seldom be their administrative remedies. We exhaust within the one appellate stages trial and without merit. find these contentions year aggrieved. given in which a plaintiff have sworn plaintiffs Five Yet be others who always there will have oath that are not residents of they under year. been residents for less than one If we 38.40.090(1)(D), are they Under AS Alaska. begin suit, one of them to a new required and, cards, residency to receive eligible be probably appellate moot before cannot department of labor waive since review could obtained. There would criteria, of adminis statutory pursuit never be a decision on the merits. would be remedies useless. See Wein trative Salfi, 422 v. 95 berger U.S. II (1975); 2457, 2466, 45 L.Ed.2d 538-39 Morton, 1021, 1025 F.Supp. 391 n. 3 requirements v. Durational residence Pence 1975), grounds subject rev’d other (D.Alaska scrutiny strict under holding 529 F.2d approved), equal protection clauses the federal and (and this 1976). Therefore, they they penalize have state because Cir. constitutions (9th 143 challenge residency require those who have their exercised fundamental standing to right migration.5 of interstate Memorial ment. plain- plaintiffs standing agree court the trial Since the other have 3.We requested, third, seek all the relief find it we unneces- their tiffs/appellants abandoned sary plaintiff to consider whether Hicklin was action, fourth, under the due fifth causes suit, properly party made a to this whether he domain, post and ex facto process, eminent standing, pur- whether he should have Brandt, Maloney v. 123 F.2d clauses. See administrative sued remedies. State, v. 1941); 469 P.2d Lewis (7th 782 Cir. 1970). (Alaska We therefore phrase n. 2 “right 5. The to travel” is often used. challenging do not consider them. But cases durational

163 250, has been criticized from of view- variety 415 Maricopa County, U.S. Hospital v. (1974) (non- See, supra, 306 415 points. g., Maricopa, 39 L.Ed.2d e. U.S. 1 public expense, medical care at emergency 1094-97, 39 L.Ed.2d Blumstein, Dunn v. year); (Rehnquist, J., at 329-32 dissenting); Bar- (1972) (voting, rett, Legislative Supervision Judicial Shapiro Thompson, v. year); Modest Role for Classifications —A More (1969) (welfare 1322, 22 L.Ed.2d 600 Protection?, B.Y.U.L.Rev. Equal State, 526 P.2d benefits, 1 year); Gilbert 118-20; Comment, A Scrutiny Strict candidacy, 3 (Alaska 1974) (legislative Travel, 22 Right U.C.L.A.L.Rev. Adams, 522 P.2d upheld); State v. years, (divorce, 1 (Alaska 1974) year); “basic necessi- We have never used this (Alaska 1973) (public 516 P.2d 142 Wylie, Comment, reasoning. generally ties” See Dort, v. Van employment, year); State Residency Requirements: Durational 1972) (Alaska (voting, days). 502 P.2d 453 Experience, 6 U.C.L.A.-Alaska Alaskan the law scrutiny, Under strict hand, our (1976). On the other L.Rev. 50 the state can must be struck down unless always has not result- scrutiny use of strict further necessary it is demonstrate that laws unconstitu- holding challenged ed interest, the least and is compelling State, supra, up- tional. In Gilbert in to further drastic means available residency requirement 3-year held the Blumstein, supra, 405 U.S. terest. Dunn v. imposed by Arti- legislature members of the 1003-04, 342-43, 31 L.Ed.2d at at II, Alaska Constitution. cle section 2 of the at 284-85.6 it was the least restrictive We held that durational residen- In its two most recent compelling further the means available to cases, cy Supreme the United Court States familiar having in the voters state interests Maricopa, abandoned this standard. su- legislators famil- legislators, with their a for (striking 1-year requirement down pra problems. the state and its iar with public medical ex- non-emergency care background, proceed we to sub With that 393, Iowa, 419 pense); Sosna v. scrutiny. Hire law to strict ject the Alaska 553, (1975) (upholding L.Ed.2d Wylie, is principal precedent The divorce). a for In Mari- 1-year requirement unanimously that supra, in which we held copa the Court was concerned with the na- in give preference could not a the state during public ture of the benefit withheld had lived persons who public employment waiting period, stating the that a duration- applying. before year in Alaska for residency requirement al will be struck the state seeks to The interests right migra- if it the penalizes down Alaska Hire law are through further recent of a depriving migrant tion by were claimed to be to those which of life. This was not enunci- similar necessity basic are set forth They in entirely “compelling” Wylie. it is not although ated in Sosna Through .020.7 Alaska for as well. It 38.40.010 and plausible explanation Sosna AS law, requirements, right question at stake is to travel into not one of fact. On 6. is a This there, Drope v. Mis- appeal make one’s home different state and we examine it de novo. souri, 10, Hospital Memorial merely 174-75 n. 95 S.Ct. 420 U.S. & to travel. n. 250, 255, n. L.Ed.2d & Maricopa County, 415 U.S. 905-906 & Darlington League, Little (1975); Fortin v. (1974). 39 L.Ed.2d Inc., (1st 1975). If 348-49 Cir. 514 F.2d right appears in the black let- nowhere This contrary, a trial court were to the the rule Constitution, although of the United States ter preclude upholding would us a law decision appear Articles of Confederation. it did scrutiny engaging in unless we con- strict Guest, 745, 758, United States v. 383 U.S. clearly decision erroneous. sidered the (1964). 16 L.Ed.2d Nevertheless, longer disputed that it no be can read: right calling 7. These sections scruti- for strict it is a fundamental ny. Shapiro Thompson, policy. poli- 629- “Sec. 38.40.010. State It is the cy development the state in the of its accomplish natural resources to seek and high The state initiated a Hire, training program to reduce the state seeks residents, rate for Alaska unemployment with commencement unskilled Alaskans natu- to use extraction Alaska’s necessary, It is pipeline construction. opportunity to cultivate resources as an ral argues, have some that trainees Reducing unemploy- human resources.8 its will be them guarantee jobs awaiting also the ment, Wylie, said in the state time they if are to make the commitment of residency requirement of a goal durational necessary effort rural leave their for civil servants. complete training job homes to enter and we found that a durational Wylie, program. servants civil requirement Wylie, Unlike the situation in most drastic means to further was not least are and projects by covered Alaska Hire governmental interest. 516 P.2d “boom,” na- will be of a short-durational Indeed, seriously questioned we ture. If a trainee is to the benefits interest at all. whether furthered on such a training getting job his by Alaska, noted, is Unemployment we all he made to wait until project, cannot be lack of education large part caused job- arrivals, new a more who training, and there are few and vocational hired. The competitive position, been areas rural jobs public private — —in project completed would be before highest. The dura- where is unemployment happened. in- did not residency requirement tional it neces- jobs, crease the number of nor did To state the differences between into the state. sarily immigration hold down Wylie facts of this case and is not to decide suggested, prob- Job would training, Id. countervailing the issue. There are consid- to reduce ably way be a more effective erations. unemployment, and not discriminate to which the Hire Law extent Alaska n. 14. Id. at 149 against migrants. recent unemployed in fact benefits Alaskans and superior court found that each job training questionable. is Alas- those 38.40 Wylie these concerns of met AS distinguish Hire those among ka does not which the state has and manner in residents; one-year gives who been it jobs implemented Pipeline mostly it. are preference all of them an absolute over re- the rural areas and workers are not one-year A those who are not residents. relocate themselves quired permanently lifelong employed busi- private Alaskan in a place their employ- and their families to ness or the public sector would entitled ment. The are fed housed workers and preference if he under Alaska Hire they return employers their are able to sought person, a An job. unemployed new vacation during to their homes and families or just completed private or one who a had hand, are On the other workers periods. him for jobs public training qualifying such from union course dispatched many Anchorage. petroleum halls in or or but who pipeline employment, Fairbanks by pro- development exploitation human re- of its resources to the of the state’s natural viding employment opportunities maximum obligation sources the state and that has an conjunction for natural its residents in employ- to assure that the benefits of management. resource ment enure to the residents the state.” Legislative findings. The “Sec. 38.40.020. VIII, 8. Article section 2 of the Constitution legislature high uniquely finds that Alaska has a Alaska reads: unemployment among record the states migra- geographical due both to cultural and legislature provide “The shall for the utiliza- for tion barriers which record has existed many years tion, development, and conservation of all experts and which have attested State, belonging waters, natural resources to the in- persist governmental will drastic in- without cluding land and the maximum legislature finds tervention. The further added.) people.” (Emphasis benefit of its employment opportunities time which from The section is not limited to of Alaska’s those to time in the areas of suffer- occur the state people who here twelve have been for at least ing largest unemployment from the chronic months. problem nonrecurring usually relate are previously likely and are trip stay had an extended outside here more taken earlier, be un- state months would gas completed. eleven oil and is project when the preference.9 able to obtain opin- demonstrate later in this As shall ion, is in its Alaska Hire not invalid entire- scrutiny under While strict can steps and there Alaska constitu- ty, made the classification correlation between preference take to insure that tionally to be goals sought and the by the statute bona goes only to fide residents. Our hold- it must be perfect, need not be achieved broadly too ing merely sweeps is classification is sufficiently strong that the that no residency define bona fide so one means to achieve those least drastic has lived in may qualify until he or she one-year a dura- say ends. We cannot year. is the least one residency requirement tional Alaska for the state in its drastic means available to one-year a upholding Nor do the cases and a sta quest unemployment for reduced requirement public for reduced residency Therefore, we hold that economy. bilized support require college one-year tuition 38.40.090(1)(A) the equal protec AS violates requirements, ment of Alaska Hire. Those constit tion clauses of the federal and state Hire, deny enacted to like Alaska were challengers point out that utions.10 those residents benefit to who had become drastic, and also the most effec least enrolling at upon tive, help unemployed means Malkerson, F.Supp. college. Starns jobs, find an give recent trainees to is to aff’d, (D.Minn.1970), unem employment preference only to the 1231, 28 (1971); L.Ed.2d 527 Vlandis v. ployed recent trainees. U.S. 441, Kline, not The state stresses an additional fact (dictum). But (1973) present Wylie. In the industries covered an absolute Alaska Hire resemble Hire, migrato- there are pools Alaska one-year resi preference in enrollment com- ry is project skilled workers. When a rate. dents, a Those reduced tuition area, plete, tend not to they remain pref absolute support an cases do not such major but construction to travel to another erence, any others. nor do project else- petroleum development scrutiny The state also that our suggests out, points persons, where. Such the state Alaska Hire less strict because should be and in highly lifestyle often have mobile non-residents from employ- does not bar very short time could the indicia acquire ment, merely gives preference but resi- address, voter mailing Alaska residence — long But as as there are available dents. registration, license, registra- driver's auto residents, it is a bar to those who Alaska residency requirement, tion. A durational the residency cannot meet standards. Be it requirement, merely state, preference, appellants or the have needed, according to the in order to bar jobs on the but have been strengthen sought pipeline, to local and labor force economy to by giving preference Alaskans who lived because of the Alaska Hire unsuccessful proper Hicklin was and has The Plaintiff born in Alaska state as a trustee of 9. Amendment. ty obey here all his life. He a residen- lived was denied must the Fourteenth Amendment. cy just card because he had returned from six Pennsylvania City v. of Board of Directors Washington and a half months state of Trusts, 230, 806, 1 353 U.S. 77 S.Ct. L.Ed.2d helped he his build a house. where father (1957). ap 792 Fourteenth Amendment plies equally city using police to a state or the justifica- 10. The state offers as an alternative regulate private (Turner power to businesses v. Hire, police tion for Alaska in addition to its City Memphis, 350, 805, of 369 U.S. 7 power, proprietary power the state’s over the (1962) (racial segregation L.Ed.2d 762 in res resources it owns. The state asserts it is not taurants) using proprietary powers and its subject equal protection to the clause in the City manage (Holmes property its own v. of management property. of its This is not the Atlanta, 141, 879, 100 350 U.S. L.Ed. Wylie, 142, (Alaska v. 516 law. State P.2d 146 (1955), vacating (5th Cir.) (ra 1973), 776 223 F.2d 93 capaci- made that it clear the state in its obey ty employer segregation municipal golf courses). must the Fourteenth of cial 166 I, section 1 of our Constitution that Article official testified

law. A state labor entitled to “the work force are pipeline people that all percent about 74 states require- residency Alaska Hire of their own in- meet the the rewards enjoyment of clause, indisputable ments. the and dustry.” That an eco- employment that gainful truth Ill people, do not for most necessity nomic scrutiny. strict us to challenge persuade the consti- also appellants clause, we not- that notwithstanding Alaska Wylie, the remainder the tutionality of impose could which, 38.40.090(1)(A) is the state after AS in dictum that Hire law ed pipeline appli- and time of stricken, limits these at the petroleum residency requirement that allege jobs They public employ- residents Alaska. for upon applicants cation and equal protection it violates both the 15. P.2d at 150 n. ment. 516 and immunities clauses. privileges ramifica- possible We troubled not requirement A does right to work is a holding that the tions migration, right interstate penalize the impose statutes right. Our fundamental residency requirement, unlike a durational severity licens- varying for prerequisites of have those who because it does burden profes- and pursue many occupations es to it is migrated interstate. Hence recently state, example, require May sions. for subject scrutiny strict ac- graduated have professionals Philadelphia v. Civil ground. McCarthy See learning (e. g. AS credited institutions 645, 646-47, Comm., 96 424 U.S. Service 08.80.110(3)) only if 08.08.130(a)(4) & AS 366, 1154, 1155, 367-68 47 L.Ed.2d S.Ct. to the court that this is the can demonstrate State, Inc. v. 532 (1976); Transport, Lynden a compelling means further least drastic 1975). 700, (Alaska P.2d 706-07 be fate state interest? What would 23.40.110(b), scrutiny under strict of AS scrutiny that strict Appellants ask agency shop permits shop union be residency requirement applied A “fun- agreements public employees? infringes cause it a claimed fundamental suggested right” damental the character concluded, We like right to work. unduly constrict appellants might Supreme Court Massachusetts legislature’s respond per- Murgia, ability 427 U.S. Board of Retirement needs, 2566, 520, public 49 ceived without corre- 96 L.Ed.2d personal (1976), sponding liberty is not a fundamental benefit to or the 524 scrutiny.11 good.12 right calling public strict iners, 1, 23-24, Cal.Rptr. are often cited for 11. Three cases which Cal.3d 799-800, right (1974). can be existence of such a fundamental 520 P.2d 22-23 Raich, explained grounds. on other Truax v. rights 12. The which are 7, 10, differences between L.Ed. concept “fundamental” those which are not are (1915), before the decided decades analyzed length in San Antonio School Dist. scrutiny equal protection strict multi-tier Rodriguez, 1, 98-110, Purdy Fitzpatrick developed, review was & (1973) (Marshall, 77, 86, 81-88 State, Cal.Rptr. 71 Cal.2d J., dissenting), Developments the Law— (1969), both merit P.2d Protection, Equal 82 Harv.L.Rev. scrutiny question strict because laws Justice Harvard aliens, Both Marshall against “suspect class.” discriminated rights reach commentators the conclusion that Inn, Kirby, Inc. v. Sail’er Cal.3d simply are considered “fundamental” because 529, (1971), Cal.Rptr. 485 P.2d 539 they important believed be more than employment concerned a law which restricted personal or 411 U.S. other economic interests. sex, opportunities classifica- on the basis a 100, 1331, 82; at at 93 S.Ct. 36 L.Ed.2d at 82 including Sail’er tion which a number of cases balancing 1128. Harv.L.Rev. at A the state’s justifies scrutiny regardless Inn have held strict implicit. interests and those of the individual is rights privileges of the or affected. The Cali- 108, 1335, 411 U.S. 93 at 36 at Court, at S.Ct. L.Ed.2d Supreme Purdy fornia after and Sail’er 87; 82 Inn, Harv.L.Rev. 1132. scrutiny laws refused to strict to the Marshall, establishing qualifications practicing citing dis- Justice his San for Antonio sent, medicine. D’Amico Board of Exam- in Mass. Board of Retirement v. v. Medical dissented

167 laid out in Isakson v. argument Rickey, test is 550 Appellants’ alternative residency require of the scrutiny (Alaska 1976): for strict the classification P.2d 359 that should be de ment is non-residents must bear a fair and substantial relation suspect a under Alaska’s Consti clared class the fed state interest. Under permissible entitled to the addi tution and therefore Constitution, test is much more eral for laws protection scrutiny tional of strict is to be if the upheld deferential: the law impose upon They them. which disabilities had legislature could have conceivable holding on cases that argument this base permissi to believe it furthered a basis that class under the federal suspect aliens are g., City E. of New Or ble state interest. argument undercut Constitution.13 This is Dukes, 297, 96 2513, 49 v. 427 U.S. leans S.Ct. Diaz, 67, 426 U.S. 96 by Mathews v. (1976). L.Ed.2d 511 1883, 1893-95, 478, 48 L.Ed.2d 493-94 S.Ct. made Alaska Since distinction is holding unanimously alienage that (1976), and non-residents Hire between residents laws, suspect classification for state to the inter bears a close correlation state’s Alienage not for federal laws. most obvi resi est in benefit to providing economic differs non-residence in a state ously dents, is subject dispute whether time-consuming of the and because difficult for the state to permissible interest is a one citizen, as required to become process U.S. Transport, Inc. v. promote. Lynden See to the with which a can opposed person ease (Alaska 1975); State, 700, 532 P.2d his to a new state. In change residence tenBroek, Equal and Protec Tussman addition, the power political of the plenary 341, Laws, Calif.L.Rev. 362- tion of 37 government to ex branches the federal (1949); Developments the Law— 64 has no equivalent clude control aliens Protection, 1065,1081 Equal 82 Harv.L.Rev. government, which the state cannot similar (1969). subject privileges This is the exclude or resident ly control U.S. citizens immunities clause of Article IV of the 26, in other states. id. at 86 n. 96 S.Ct. See Constitution, to we United States 26, 1894 n. 48 L.Ed.2d at 493-94 n. 26. now turn our attention. do not it would We believe be reasonable require exceedingly a state to meet the 2, IV, section of the federal Article all exacting scrutiny standards of strict on says “The citizens of each Constitution when it seeks to the numerous occasions Privileges to all shall be entitled pay its residents—those who its tax- benefit Immunities of in the several Citizens es and elect its officers—in preference privileges immunities States.”14 persons who reside elsewhere. absolute; clause is not an standard estab we to that which review similar ground is no apply Since there supra, equal Rickey, lished in Isakson v. require strict to the ing scrutiny v. ment, protection Compare review. Toomer we must use the lower standard of 396, 1156, Constitution, 385, 68 Witsell, 334 review. Under the state S.Ct. U.S. Richardson, 365, U.S. v. 403 91 Murgia, supra. Graham S.Ct. But he did not believe that the (welfare); (1971) Takaha right right invoking 29 L.Ed.2d 534 to work a fundamental Comm., urged infringing scrutiny; he laws strict 68 shi v. Fish & Game 334 U.S. right be tested standard used in (1948) (commercial L.Ed. Reed, Reed v. such cases Enterprises, D. R. Ltd. v. Board fishing); C. This is the L.Ed.2d Education, (E.D.N.Y.1976), F.Supp. Rickey, adopted in Isakson standard aff’d, 429 U.S. 97 S.Ct. (Alaska 1976). objection His P.2d 359 was to works). public (1977) (employment extremely use of the deferential standard cases, between state discriminated all these Dukes, City of New Orleans 427 U.S. aliens, not be resident resident citizens and (1976), 49 L.Ed.2d 511 which we no alien) longer testing against (citizen use in laws the Alaska or non-resi residents tween 307, 317-23, alien). Constitution. (citizen dents 2568-71, 49 L.Ed.2d 527-31. privileges and has no Sugarman Dougall, 14. Alaska’s Constitution service); (1973) (civil 37 L.Ed.2d 853 immunities clause. upheld, on the The law fishermen. 1460, (1948) with Isak 1162, 92 L.Ed. was the common (Alaska 1976). fishery son, ground at 362 supra, 550 P.2d Jersey, of New the people of all property provi- many “Like other constitutional Accord, Geer limited to them. and could be immunities sions, privileges 600, 40 Connecticut, 519, 16 v. It does bar not an absolute. clause is birds); McCready v. (1896) (game citizens of other L.Ed. 793 against discrimination 391, (1877) rea- 24 L.Ed. Virginia, there is no substantial 94 U.S. States where rule beyond forth both the (fish). the discrimination thus set son for Corfield of other are citizens are rele they exception, mere fact that both of which and the preclude disparity But it does not States. to this case. vant situations many treatment in in Toom distinguished These cases were indepen- valid perfectly where there er, prohibitively supra, which struck down in inquiry Thus the for it. dent reasons commercial out-of-state high license fee for with wheth- concerned each case must be Toomer, in unlike shrimp The fishermen.17 do exist and whether er such reasons in in inland waters involved the fish a close re- discrimination bears degree of the coast of a migrated along McCready, also, of inquiry The must lation to them. could not be said to number of states and course, regard with due be conducted them. 334 at 399- belong any that the States should principle 403, 92 L.Ed. at 1473-7 at 68 S.Ct. local leeway analyzing considerable “ownership” is less of a 5.18 The state’s prescribing appropriate and in evils than it is with fiction in this case legal cures.” game. Alaska Hire does respect to fish 396, 1162, Toomer, 334 U.S. industries, in extractive jobs to all Lynden Transport, quoted L.Ed. at to which the projects those on but State, (Alaska Inc. v. 532 P.2d has a contractual nexus. government omitted).15 1975) (footnote Re generally Alleyne, Constitutional See and im- “privileges list of standard of Alas Hiring straints on the Preferential opinion of Mr. Justice munities” is from the Construction, Pipeline kan Residents for Oil circuit Washington, sitting on Bushrod 3-8 2 U.C.L.A.-Alaska L.Rev. Coryell, v. 6 Fed.Cas. Corfield Virginia, supra, v. McCready is, 3,230) (C.C.E.D.Pa.1823). It (No. but it has never been distinguished, been said, privileges “those he limited to concluded that overruled. We have are, nature, in their fun- immunities to the deci principle applicable states the right of a damental.” It includes “[t]he VIII, 2 of of this case. Article section sion through, or to pass citizen of one state to Constitution, stating that Alas the Alaska state, purposes other reside in resources shall be used and trade, ka’s natural professional pursuits, agriculture, benefit Alaska’s Corfield, ways that will Pennsylvanian developed otherwise.” privileg with the limited is not inconsistent Jersey people, a New law which challenged re- to local clause. The natural fishing commercial for shellfish es and immunities Giffiths, 18.This issue is before the United States Su 15. In re 413 U.S. 722 n. Cf. year. preme again 37 L.Ed.2d 915 n. 8 Massachusetts Court (1973): segregation “Discrimination or Westcott, [of granted 429 U.S. cert. persons] aliens or non-white for its own sake (1976), argued, 45 U.S.L.W. not, course, constitutionally permissible (Jan. 1977). concerns a Westcott purpose.” limiting fisheries to certain offshore state law one-year Supreme Judicial residents. longer 16. It is than the list of fundamental that it vio of Massachusetts concluded Court scrutiny rights which invoke strict under the clause, privileges cit lated and immunities equal protection clause. Westcott, ing Toomer. Commonwealth (Mass. 1976). N.E.2d 411 Anderson, Accord, Mullaney (striking (1952) down 96 L.Ed. 458 Alaska). Territory a similar law of the

169 any “belong” placing may of to Alaska and to without limitation who sources Alaska that, sys- in in our federal way Alaskans a benefits and bur- voluntarily assume those tem, gener- society economy Alaska’s and dens. al do not. McCready “natural rely on the We course, object strenuously Appellants, of privileges and exception” resources to the reasoning. They correctly line to this of court, trial on the immunities clause. The v. that, Pennsylvania out point under West hand, ground other law on the upheld the 553, 43 262 67 L.Ed. Virginia, U.S. that it protectionism was not economic v. (1923) Kansas Natural and West sake, its and so within own fell the “inde Co., 55 L.Ed. Gas U.S. pendent reasons” to the exception privileges not allow the ex (1911), Alaska could and immunities clause articulated or all local gas only of oil after needs port Toomer, quotation supra. from The trial were met. But these cases decided were Hire judge referred to Alaska as an at clause, privi the commerce not under tempt “problems solve be typi and immunities clause. One leges racial, educational, social, fied as and eco reasons the United States Consti principal to classify nomic.” We are hesitant Alaska written, replace the old Arti tution something Hire as other than an attempt Confederation, was to make the cles of strengthen economy. the Alaskan In Bald unit, single States a economic with United Inc., F. Seelig, win G. A. gener barriers to interstate trade. See out L.Ed. DuMond, H. P. Hood & ally Sons case, (1935), a commerce clause the Su 657, 661-66, L.Ed. preme rejected attempt justify Court an forbidding Laws or price imported milk regulation by state, a burdening imports or exports analogy regulation purity, of its it, are that principle. into inconsistent with be valid. We believe unquestionably But no commerce clause claim ad- is to consider the better alternative against Accepting

vanced Alaska Hire. Alaska measure justified Hire an economic the United States premise exception,” “natural resources economy, have one common do should may prefer that a state its resi principle accept the offered conclusion that dealing dents in with natural resources it can never make government of Alaska ben- owns. pref- efits available to citizens of Alaska erence to citizens of other states. IV California, Edwards challenge Appellants also the con (1941), 86 L.Ed. does not stitutionality of the four indicia of resi In compel contrary. a decision to Ed listed dence other than duration in AS 38.- wards, the held a state Court invalid law 40.090(1): maintaining place a of residence

making indigent it crime to assist non-res Alaska, residency voting purposes, no purpose into the idents come state. elsewhere, residency claim and an intent effect, the law was a direct barrier attending shown all circumstances to be Alaska migration. to interstate travel no permanent resident. We find constitu does a barrier to interstate Hire not erect them, use our tional any fault With the migration. travel durational them in some detail stricken, discussion of to outline permits residence requirement govern which will determina well to re standards long-time new as residents purposes for the It tion of Alaska residence preference. gives state’s ceive burdens, who its benefits those bear AS 38.40.19 part chapter, of this the term See SLA of the sec. 90 ‘resident’ ch. § person original re- act: who satisfies the Alaska Hire then means invalidated, maining criteria or tests competent jurisdiction “If a invali- court of criteria dates or tests Likewise, criterion, the fifth simply of residence that the sur-

Maintaining place a physically present in being ordinarily means show an intent to circumstances rounding Alaska, Alaska where having place within home, part is permanent make Alaska one’s no stays, having such ordinarily one domicile, the intent the definition of department else. The anywhere place go and not to elsewhere.23 “Perma- remain camp construction labor considers promise stay not require nent” does requirement. meet this may is no more here forever. This indicium Residency voting purposes, under for subjective vague concept or than the Dort, (Alaska v. Van 502 P.2d domicile itself. 15.05.010(4) durational 1972), and means AS Dort, we days. for 30 In Van residency resi application form for a 30-day residency necessary found to further following informa dency card asks for the compelling preventing state interest covering period years prior tion of two elections, and administering fraud and application: ap all addresses where constitutionally hence a valid indicium of lived; plicant occasions on which the fide The state does not bona residence. outside Alas applicant physically has been a worker require construe this clause to register therefor; either to or to vote.20 As in ka, Van voting outside with reasons Dort, fide in order to determine bona resi- Alaska; claiming residency elsewhere “for non, 30-day requirement vel this is dency reason”; jobs Appellants held. and all permissible. depart conclude from this that The fourth criterion worker facto ment of labor has created de two- residency anywhere not claim else dur- may year residency requirement. durational we have ing period. the durational Since relevant only testimony, that of David period, interpret stricken the durational Pinrow, is to the contrary. He said that residency any- this mean claim of no jurisdic evidence of attachment to another application where else at the time of tion past years within the two is not part concept thereafter. Since it is grounds card, for automatic denial of a but (which of domicile is what bona fide resi- person’s past practices that “a sometimes for dency purposes)21 means these that a regard indicate what his intentions are with person may one domicile at a permanent goes Alaska residence.” It time,22 requirement this is a reasonable determining residency. second, fourth, criteria, bona fide and fifth chapter shall be administered en- anee of construction contracts let the state accordingly.” forced political or a subdivision of the state. A resi severability general ap- See also the clause 36.10, purposes dent for of AS is defined AS plication, AS 01.10.030. 36.95.010(5) as follows: “(5) person ‘resident’ means a charge who main 20. The state official in of Alaska Hire testified, really voting is the “we don’t consider too tains his domicile the state: domicile strongly give permanent person don’t that crite- .... true and home [W]e of a weight.” ria too much present [sic] which he has no intention of remov ing and to which he intends to return when Kline, supra, 21. See Vlandis 412 U.S. at away.” ever he is 72-73, 93. 37 L.Ed.2d at and State Rockefeller, Ramey F.Supp. 788- Adams, supra, 522 P.2d at dura- (E.D.N.Y.1972) (3-judge court) (Friendly, J.), residency requirement using tional cases that, purposes, held at least for election a state interchange- terms “domicile” and “residence” ably. may not define residence or domicile more (Second) See also Restatement of Con- strictly than the Restatement definition Second flict of Laws comment k § domicile, interpreted requirement justification The fact that the state offers as a “residence” in a state statute to be the same as give jobs for Alaska Hire a desire to persons these the Second Restatement definition. state, relatively strong ties to the suggests that one the lower standards of (Second) 22. Restatement of Conflict of Laws “residency” place of the was not intended in 11(2) (1971). § stringent more domicile standard. provides employment AS 36.10.010 an 23. Id. § preference perform- for state residents in the within the initial 30 legal for a card in accord with the first. This is receive any preference but days, of domicile at an that evidence principle period. As under hiring during 30-day at a is evidence of domicile earlier time laws, both 30-day period the election Wigmore, later time. 9 J. Evidence § acts convenience and McCormick, serves administrative Evidence (3d 1940); ed. C. fide residence as an indicator of bona 1972) (statements of (2d ed. 294 at 695-96 § intent to remain in Alaska. of domi- domicile are evidence intent as to also). cile at a later time V that the state Having concluded the trial court’s we affirm summary, give preference may constitutionally relief, respect except denial of with to AS residents, nothing any in of these we find 38.40.090(1)(A), imposing one-year dura- criteria, state’s adminis or in the remaining requirement, tional which we hold them, impermissi acts as an tration violating equal protection invalid as determining residence. standard for ble of the state and federal clauses constitu- constitutionally entitled to use The state is tions. means to deter administrative reasonable IN PART AFFIRMED AND RE- and who is who is a bona fide resident mine PART. IN VERSED con Domicile or bona fide residence not. objective requirement physical an tains BOOCHEVER, J.,C. with whom RABI- subjective require intent presence and NOWITZ, J., joins, dissenting part. in It is not unreasonable to use the ment. BOOCHEVER, Justice, 38.40.090(1), with whom objective indicia listed in Chief AS RABINOWITZ, Justice, joins, dissenting to aid in one-year requirement, other than the determining applicant part. in whether an subjective necessary intent which is a that all Alaskan oil requires AS 38.40.030 element of bona fide residence. leases, right-of-way easements or gas and unit- gas pipelines that to be classified particular permits

We note in for oil and Alaska, may provisions re- person agreements as a resident of ization contain re- residents. person residence elsewhere. A of Alaska quiring employment claim are una- other state on Alaska residents ceiving any any Only qualified benefit from if vailable, The employed. pro- others be g. may of his residence in that state —e. the basis employ- to all visions of the act also voting, unemployment compensation, public gas the result of oil and assistance, tuition rate for un- ment which is “resident” leases, easements, right-of-way children, leases emancipated qual- etc.—would not purposes and Likewise, gas pipeline an for oil or ify. person permits once a becomes Thus, ap- the act agreements.1 he be- purpose, Alaska resident for this unitization employment opportunities purposes. pears resident for all to include comes an Alaska systems distribution pay imposed For he must all at refineries example, taxes gas oil and obtained under Alaska by politi- utilizing residents this state and the upon in which he resides. He leases. cal subdivision his pos- motor vehicles in register

must on an anti- majority opinion is based mo- department with the Alaska session stemming quated authority line so would be tor vehicles. Failure do Coryell, Fed.Cas. Corfield in fact a person evidence that is not 3,230) (C.C.E.D.Pa.1823), where a local (No. preference. entitled to the resident and not the common fishery was held to be Accord, the state. people to vote less person may register property Just as a Connecticut, beginning after to reside Geer v. days than 30 birds); (1896) (game Alaska, after 30 40 L.Ed. 793 but not vote until 391, 24 L.Ed. may apply McCready Virginia, days elapsed, person have so a 1. AS 38.40.050. he, expanded to cover should not Each of the cases cited (1876) (fish). case, added)2 game. (emphasis with fish or Cor- majority deals for shell- fishing commercial limited field in keeping more A rationale for state action fishermen; pertained Geer local fish to society was mobility of modern McCready restricted game birds advanced: Virginia waters to oysters planting fact, is theory, The whole ownership Virginians. a fiction as but generally regarded now has been of these cases application of the im- expressive legal shorthand Witsell, limited Toomer severely people to its that a portance State 1156, L.Ed. 1460 regulate the ex- power preserve McCready out that pointed There, the Court important an And ploitation of resource. upholding dis- decision only prior was its necessary is no conflict between there fishing or against commercial crimination and the policy that vital consideration states without citizens of other hunting by constitutional command that independent reasons advancing “persuasive power, powers, exercise that like its other The court the discrimination.” justifying so as not to discriminate without reason its McCready beyond to extend refused States, (foot- against citizens of other whereby a law and struck down facts omitted)3 note belonging to South Carolina shrimp boats holding The its on the majority bases substantially licensed residents were that the natural resources of Alaska theory of nonresidents. lower fees than those “belong” to Alaska and Alaskans. Under distinguished on two was McCready rationale, it has been held that certain that, out First, pointed grounds. the Court may be restricted for state state resources oysters, Virginia in contrast question But the law here in is not use.4 free-swimming shrimp were South Carolina restricting gas aimed at oil and use to Alask emphasized it Secondly, migrating. fact, Pipeline a.5 In the Alaska has been regulation of in- McCready involved port constructed to the of Valdez as a involved the while Toomer land waters oil to other states. delivery means of Thus, casting serious doubt marginal sea. McCready, of authority

on the continued continued McCready has assuming Even however, here, concluded: viability,6 ready distinctions Toomer, inapplicable. that case lead us to the con- as render These considerations proprietary McCready exception dealing any to We are not clusion that clause, game. immunity if such interest of a state its fish and privilege 2842, 2849, 645, 853, 68 92 L.Ed. at 93 S.Ct. 861 2. 334 U.S. at Education, (1973). See also C.D.R. v. Board of 1474. (E.D.N.Y.1976), affirmed, F.Supp. 412 1164 Id. 3. (1977). 50 L.Ed.2d 742 Crane, 154, 164, People 4. In 214 N.Y. (1915), Judge 5. If the use of the resource were restricted stat N.E. then Cardozo state, state, questions determining shall ed: “The what use serious constitutional moneys, may legitimately Pennsylvania v. West be made of its own In be involved. of its own citizens.” Virginia, consult welfare 262 U.S. 43 S.Ct. decision was affirmed in Crane v. New Crane attempt (1923), an it was held that L.Ed. York, 60 L.Ed. 218 239 U.S. Virginia require preference in use of West may (1915), give prefer held that a state which gas produced to local con- natural in that state using its funds on ence to its residents when withdrawing large had the effect of sumers Heim v. public projects. works Accord quantities gas interstate markets and McCall, 60 L.Ed. interference with inter- was an unconstitutional Bleigh (1915); People ex. rel. Holland v. state commerce. Co., Constr. 61 Ill.2d 335 N.E.2d 469 longer Heim were held no Crane cogent opinion in See Justice Braucher’s preference controlling applied be in state Westcott, Commonwealth N.E.2d employment States citizens over United (Mass.1976). Dougall, Sugarman aliens. Native Act9 and we are con- Alaska Claims Settlement Nor is the statute with which leaders, community of oil locat- these to the extraction the initiative cerned limited goes addressed. act may properly Alaska concerns ed on state lands. nonresident em- and restricts must further for resident em- event, any In preference of a natural in extraction ployment on the upheld basis ployees may not be resource, also in the distribution but the state. benefits derived the economic from its extraction.7 resulting other use jus- to residents could If economic benefits involves fact, pipeline on employment discrimination, im- privileges tify system rather construction of distribution the United Consti- munities clause of States Moreover, oil. than extraction of the meaningless. would become It tution could be ap- the statute rationale behind Lynden held in that reason that we state lands. Under the plied to all leases of State, 532 P.2d Transport, Inc. v. Act, Alaska was authoriz- Alaska Statehood 1975): (Alaska 103,000,000 ed select in excess acres Benefiting interests resi- economic utilizing As the natu- land.8 a condition is not a purpose dents over nonresidents resources, agricul- by mining, ral whether constitutionally vindicate dis- industry, provisions ture or timber . criminating legislation, hire of res- require preferential leases could its unique problem While Alaska’s provisions specify Such could idents. present- either setting, other states specific resulting in all preference employment local similar past have confronted ly or Thus, could from the leases. nonresidents imagi- problems.10 It takes little economic mining dairy, agricultural, be barred from if local hire law nation to see that Alaska’s lumber industries established of economic bene- is constitutional because in lands, employment as as from well residents, justify to each state could fits its manufacturing resulting processing or not the restricting only own residents its nothing McCready therefrom. There is re- and natural utilization of its lands a restriction suggest pervasive that such sources, resulting employment but also of would be consti- employment nonresident use. from such tutionally permissible. major hire statute runs problem my opinion, has a In the local

Certainly, Alaska In The is of of federalism. unemployment. problem par- concept with This afoul the Federalist, Hamilton Jay, communities Alexander ticularly acute rural arctic John the eloquently wrote of change with the inexorable and James Madison which faced one nation with being on fish and of importance from their historic reliance our rights, privileges by means the same game Hopefully, enjoying for subsistence. citizens principles legislation protection.11 such the These were enlightened of valid and making bring it law a criminal offense to 7. AS 38.40.050. bringing indigent into assist an nonresident Act, 85-508, 72 8. Alaska Statehood P.L. Stat. by unanimous was held invalid a California (July 1958) Sec. 6. 339 justices on based their decision Court. Five Douglas, speak- Justice the Commerce Clause. 92-203, 1601 et § 9. P.L. Stat. U.S.C. Court, ing based his for three members of the (Dec. 1971). seq. freely right persons the of to move decision on example, York state has encoun- 10. For New the vio- to state. He held that law from state living unemployment and substandard tered privileges and amendment lated the fourteenth migrants resulting of conditions from waves protecting privileges im- immunities clause City. industry New York The vast automobile citizenship against state munities of national subject periodic upheavals Michigan of took similar interference. Justice Jackson causing unemployment. massive The exodus approach. industry England states from the New presents equally rea- them with valid economic Federalist, Jay) p. (Wright, (J. No. 2 11.The favoring employment. sons residential Cal- 1972): ed. sought keep at out nonresi- ifornia one time uniformly California, general purposes we have To all indigents. In Edwards v. dent (1941), people; individual citizen been one each L.Ed. 119 Virginia, Paul v. 8 Wall exists. in Baldwin v. now Cardozo echoed Justice 168, 180, 19 Inc., 294 U.S. 511, 528, (U.S.) L.Ed. Seelig, G.A.F. (1935).12 79 L.Ed. it purpose, this underlying In line with decided that one of long ago was Toomer, spoke Vinson Justice Chief guarantees privileges which clause immunities clause privileges doing A is busi- citizens of that of State philosophy: terms of a like substantial B terms of ness in State clause, of this like purpose The primary that State. citizens of equality clauses is located— between and credit and to full faith relating those at 1471. L.Ed.2d from fugitives to interstate extradition fuse into Nation justice help one state If hire is valid each local —was sovereign independent, a collection of restrict to its own residents to insure to designed It States. resources land and natural utilization of its A who ventures into citizen of State from such resulting employment but also privileges which B the same State use, concept then the of federalism protection For enjoy. citizens of B State extinguished. Each effectively citizen of A of such equality separate isolated en- would become to the uncertain was not to be restricted the Framers I cannot believe that clave. diplomatic remedies afforded result con- intended such a and therefore Indeed, retaliation. processes and official hire clude the local statute is unconsti- of the kind re- provisions without some tutional.13 moving the citizens each State alienage in the other the disabilities

States, equality privi- them giving States, of those

lege with citizens have constituted little

Republic would States; it would league

more than a the Union which have constituted political everywhere enjoying philosophy parochi- of a the same national minion less rights, protection. privileges, and theory range. upon al It was framed Federalist, (A. Hamilton) p. No. people of the states must that the several 1972): (Wright, ed. together, long sink or swim and that empire ‘The of the German commerce prosperity and in union and run salvation are multiplicity continual from the trammels not division. princes the duties the several which - Products, Inc., Douglas 13. In passing Seacoast upon states the mechandises exact U.S. -, territories, through by (1977), which L.Ed.2d 304 their means of navigable Supreme fine rivers with the which rendered almost useless.’ streams reiterated States United Court happily Germany down, is so watered are striking concept federalism Though genius primarily pre-emption on the basis of federal country might people of this never Clause, Virginia pro Supremacy law permit description strictly applica- to be hibiting federally licensed vessels owned us, yet reasonably expect, ble from tions, Virginia fishing in Chesa nonresidents peake Bay. regula- gradual conflicts condemning restrictive such the citizens of each would laws, stated: the Court length come to be considered and treated eventually might be State’s fishermen Each light others in no better than that effectively working limited to in the territori foreigners and aliens. residence, Federalist, Madison) (J. al their or in the federal waters of See also The No. (Wright, 1972). ly fishery beyond ed. the three-mile controlled proliferation re limit. Such Rejecting York the contention New quirements for commercial fishermen purposes for the of eco- could nomic its laws precisely the sort of Balkanization create dairy protection industry against of its activity commercial interstate producers, he out-of-state milk stated: - prevent. was intended to Constitution give To to that excuse would be to entrance -, (footnotes solidarity. S.Ct. at 1752. speedy U.S. omitted, invite a end of our national omitted) citations was framed under the do- Constitution

Case Details

Case Name: Hicklin v. Orbeck

Court Name: Alaska Supreme Court

Date Published: Jun 3, 1977

Citation: 565 P.2d 159

Docket Number: 3025

Court Abbreviation: Alaska