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

Dec. Alaska, Through acting By and

STATE of Rehearing Denied Feb. TRANSPOR DEPARTMENTS OF its LABOR, Alaska In and AND TATION Authority, Ap Developmental dustrial pellant,

v. CONSTRUCTION, ALASKA ENSERCH Jr.; LaRose, INC., Ralph Kenneth C. C. Inc.; Regional Corporation, Opel; Nana Morena; Harvey; and Melvin Daniel Borough, a Home Arctic Northwest Municipality, Appellees. Rule CORPORATION, NANA REGIONAL INC., Harvey, Melvin Daniel and

Morena, Appellants,

v. Alaska, Through By acting and STATE of OF TRANSPOR its DEPARTMENTS LABOR, In AND and Alaska TATION Authority; Developmental En dustrial Inc.; Construction, Ralph serch LaRose, Jr.; Opel; L. and Kenneth C. Borough, Arctic a Home Northwest Municipality, Appellees. Rule CONSTRUCTION, ALASKA ENSERCH INC., Cross/Appellants, Alaska, Through By acting STATE of TRANSPOR- its DEPARTMENTS OF LABOR, The Alaska AND TATION Authority; Developmental Industrial Inc.; Corporation, Dan- Regional Nana Morena; Harvey; Melvin Northwest iel Borough, Munici- Rule Home Arctic Jr.; LaRose, Ralph Ken- pality; C. Opel, Cross/Appellees. neth L. BOROUGH, a ARCTIC NORTHWEST Appellant, Municipality, Rule Home CONSTRUCTION, ALASKA ENSERCH LaRose, Jr.; INC.; Ralph Kenneth C. C. Alaska, acting By Opel; State Transpor- Departments Through its Industri- Labpr, and Alaska tation and Authority; Developmental Nana Re- al Inc.; Corporation, Har- gional Daniel Morena, Appellees. vey; Melvin S-2693, S-2694, and S-2736. Nos. S-2731

Supreme Alaska. Court of Gen., Atty. An- DeYoung, Asst.

Jan Hart Schaible, Berg Atty. chorage, and Grace Gen., Juneau, of Alaska. for State Sedwick, Burr, Kurtz, Pease & An- J.W. Const., Inc., chorage, for Enserch LaRose, Opel. L. Ralph Jr. and Kenneth C. Szender, Johnson, R. M. James Robert Brecht, Wohlforth, Argetsinger, Johnson & Regional Corp., Anchorage, for NANA Inc., Harvey Morena. Daniel and Melvin Erlich, Kotzebue, for North- Richard H. Borough. west Arctic MATTHEWS, C.J., and Before BURKE, WITZ, COMPTON RABINO MOORE, JJ.

OPINION

MOORE, Justice. constitutionality appeal This involves hiring provides of AS 36.10.160 economically dis- preference to residents employment on certain tressed zones for court, superior projects. The public works Serdahely, declared the Douglas Judge J. under Alaska’s unconstitutional superior We affirm protection clause. unconstitutionality decision on the court’s and its rul- preference law intervention, waiver, concerning ings court’s standing. We reverse damages for the right to seek ruling on the the unconstitutional enforcement of state’s law.

I. FACTS that the state’s January we held

In 36.10.010, law, violated the hire local of article clause and immunities Constitu- IV, the United States section Francis, P.2d 259 tion. Robison Legisla- 1986). May creating four statute a new ture enacted works hiring preferences percent than 90 per capita have income less is a for The first projects.1 income, capita per residing a zone United States within eligible individuals exceeds national unem- zone AS 36.10.150. underemployment. percent; ployment by at least five eligible residents second is a opportunities lack of employment AS substan- economically distressed zone. of an tially to social or economic preference issue contributes is the at 36.10.160. This (3) employment of problems; nonresi- The third a appeal. source of economically peculiar mi- dent workers is a unem- disadvantaged eligible for workers.3 ployment for resident of a zone. AS 36.10.170. nority residents economically dis- eligible for The fourth is Enserch the state and Alaska residents of a zone. AS advantaged female Construction, (“Enserch”) Inc. entered into 36.10.175. fifty- a the construction a contract for Bering five mile Sea coast to preferences are not road from employment These Dog Mine in the trigger proposed Red North- self-executing. application To (“the provisions, Borough Borough”).4 the west Arctic employment “comply Enserch to Department required Labor The contract of the Commissioner Commissioner”) regulations (“the applicable with all laws and must determine that hiring Alaska economically regarding residents a distressed. AS 36.- zone is may subsequently 10.160(a).2 economically now effect or An distressed (1) take in which: zone residents effect....” zone is an area 36.10.160(b) 36.10.160(b). provides: 3. AS AS 36.10.180 sets forth the AS 36.10.150-.180. subject preference: projects The determine commissioner shall that an (a) preferences AS 36.10.- The established in economically zone exists distressed if the apply performed to work 150-36.10.175 finds that commissioner construction, (1) for re- under a contract (1) capita per income of residents of the studies, surveys, engineering pair, preliminary per percent capita zone is of the less than 90 work, any consulting, other maintenance or whole, income States as a of the United or complete necessary a of services retention given project unemployment in the zone rate exceeds by let an that is the state or by five national rate of least state, office, department, agency a state percentage points; commission, board, public corporation, or (2) opportunities employment the lack of organizational unit of under or created other the substantially contributed to seri- zone has executive, judicial legislative or branch of zone; problems in ous social or economic including University government, state Corporation, and the Alaska Railroad Alaska (3) employment who of workers are not political in- a subdivision of the state or cluding unemploy- peculiar source of respect is a school residents -board with facility under AS 14.11.020: the zone. to an educational ment of residents of (2) project grant public works under a "pecu- on employment nonresidents is a 37.05.315; municipality under AS to a unemployment” in an when liar source of area (3) project grant public works on a under percent an “more than 10 residents of 37.05.316; recipient under AS to be named experienced area who or in a craft are trained (4) project grant public on a works under occupation unemployed or and more than unincorporated community under AS to an percent total number of workers em- 37.05.317; and ployed occupation that craft or in that area in any project works or on other AAC the area.” 8 30.069. residents of project that is whole funded in construction money. part or in private Dog is a venture to 4. The Red Mine DeLong 36.10.160(a) extract zinc and lead from Moun- provides: 2. AS corridor, including transportation A tains. following Immediately a determination facility, developed had to be road and a harbor economically dis- the commissioner exists, transport Recognizing the ore. to extract and and for the next two fiscal tressed zone determination, capital project’s qualified private and the years resi- after the both lack of eligible region, who are under AS anticipated dents of the zone economic benefit hiring given preference 1132,000,000 shall appropriated 36.10.140 Legislature percent each at least 50 $12,000,000 for project in cash to enable the loans and wholly AS 36.10.180 that is or under Development Export Au- Alaska Industrial prefer- partially sited within zone. thority (AIDA) bonds to finance this to secure craft-by-craft occupation- applies on a ence transportation Ch. SLA corridor. al basis. on the permitted When Ensereh started work the Bor- project, yet ough, had not des- Regional Corporation, the Commissioner NANA Inc. ignated any (“NANA”), area of the state as an econom- Harvey, Daniel and Melvin However, ically distressed zone. Morena to intervene as defendants. The Borough asked the Commissioner to court also allowed Kenneth Opel L. Borough declare the dis- LaRose, Ralph C. plain- Jr. to intervene as Department tressed zone. The of Labor partial tiffs. Ensereh summary moved (“DOL”) gathered the information neces- judgment employment preference sary Borough to evaluate whether the deprived it of of the laws eligible designation. for such a After re- and immunities of na- information, viewing this the Commissioner citizenship. tional The state cross-moved emergency regulations declaring issued summary judgment ground on the Borough distressed zone.5 expressly Ensereh right had waived its to damages. recover NANA moved to dis- Borough’s designation As a result of the complaint miss the grounds on the zone, an economically as distressed standing, ripeness, waiver of Enserch’s project road subject employment was right challenge to the constitutionality of preference provisions. AS 36.10.160. law, and failure to state a upon claim Thus, required Ensereh was fill to at least which granted. relief be fifty percent positions of the available designated certain eligible, crafts6 with superior partial court entered sum- qualified Borough imple- residents. After mary judgment for Ensereh. The court preference, employment mentation of the held that right Ensereh did not waive its to Borough project of the residents on the challenge the constitutionality of the re- percent forty-two increased from fifteen gional preference law. The court held that percent. LaRose, Opel, and Ensereh had citizen-tax- payer standing challenge preference

II. PROCEEDINGS however, protection grounds; law on In November Ensereh filed suit standing lacked to assert a federal against (1) seeking privileges the state a declaration challenge.7 and immunities that AS 36.10.160violated state and federal court then preference concluded that the equal protection guarantees equal protection provision and the feder- law violated the clause, privileges (2) al and immunities Finally, Alaska Constitution. damages comply- for its increased costs in court ruled that the state was not entitled ing with the law. In summary judgment December En- on the issue whether partial summary sereh judg- right damages moved for Ensereh waived its to seek ment. for the state’s enforcement of the law be- determination, support 5. of this the Commis- Electricians and Power Instal- Transmission (1) Borough sioner found that: had a 12- lers Equipment Operators Plumbers, percent month rate of 15.7 com- pared average Pipefitters and Steamfitters to the national 12-month of 6.9 (2) Receptionists percent; Borough lack of in the Survey Crews substantially had contributed to its economic (3) problems; Truck Drivers and social more than 10 Equipment Vehicle and Mobile Mechanics percent qualified trained resident Repairers unemployed workers in 12 different crafts were Welders and Cutters percent employed while more than 10 of those required qualified Ensereh to hire Borough in the in the 12 crafts were not Bor- 36.10.070(b). qualified If local residents. ough residents. available, may grant local residents are not DOL a waiver to allow nonresidents to be hired. Id. findings 6. The Commissioner’s covered the fol- case, requests processed In this covering DOL 14 waiver lowing occupations: crafts or granted employees. DOL waivers Navigators Airline Pilots and employees for 43 and denied four. Carpenters appeal did not and im- Construction Laborers 7.Ensereh Managers ruling. Construction munities (1978), aff’d, presented gen- 409 N.Y.S.2d 903 cause evidence record fact. The court uine of material N.Y.2d N.Y.S.2d 399 N.E.2d issues denied, cert. pursuant (1979), judgment final partial entered 54(b). (1980), Civil Rule 64 L.Ed.2d 262 a contrac accepted county tor contract which re appeal. They ar- and NANA quired compliance with all local and state (1) its gue Enserch waived that: laws, including provisions. hire local constitutionality of re- challenge the N.Y.S.2d at The contractor sued law; (2) gional state, seeking a declaration a local hire permitting its court abused discretion law the state constitution. The violated plaintiffs; Opel to LaRose and intervene that a “public court held contract should (3) LaRose, Enserch, Opel lack stand- conditioned on waiver of constitu challenge; raise rights.” In a tional 409 N.Y.S.2d (4) does case, appellate York similar New deny equal protection; Enserch explained: damages for the waived its recover petitioner signed The fact has state’s the law. The Bor- enforcement of Department with the set contracts ough arguing that AS appealed, 36.10.160 policy forth the debarment failure to cross-appealed, is constitutional. Enserch [for comply pro- right it had its to with state affirmative action arguing that not waived grams] peti- a damages recover as matter of law. should not work waiver of a right challenge Depart- to tioner’s III. WAIVER authority poli- to establish a ment’s such Otherwise, cy. agency could create matter, threshold the state and As a authority contract ... which has not argue superior NANA court erred delegated Legislature. been concluding in that Enserch did not waive right challenge constitutionality its to Industries, White, Inc. v. Callahan * that, contends of AS 36.10.160. Enserch A.D.2d 503 N.Y.S.2d 933 n. law, right its to matter of did not waive (1986) (citations omitted). challenge the law. of public policy, As a matter we conclude in provision requir-

The relies on its con- that a contract Section provides part, ing compliance in tract with Enserch which with state laws does not prevent comply appli- challenging “The shall with all the contractor Contractor regulations regarding the as unconstitutional. noted cable As we laws State, Lynden Transport, Inc. hiring in Alaska residents now effect (Alaska 1975), may subsequently during “[although that take effect argues rights Enserch subject the term of this contract.” most constitutional only waiver, knowingly provision applies that must be and volun- the contract (no In than tarily constitutional laws. It asserts waived. civil cases less criminal), every requir- indulge state’s enforcement of a condition courts must ing presumption against with unconstitutional waiv- compliance reasonable their constitute a of the im- er.” law would breach plied good faith and fair deal- covenant right not explicitly Enserch did waive its Thus, ing. Enserch concludes that it was constitutionality challenge the re- summary judgment entitled to because gional The preference law. contract

provision is as matter of unenforceable required all compliance applicable “with law. regulations regarding the hire of laws and in effect or

We that Enserch did not waive Alaska residents now conclude right challenge constitutionality subsequently its take effect....” Enserch’s regional super promise comply prefer- The with the law. correctly implementing regulations its or court held that Enserch could ence law and declaratory challeng- promise to refrain from maintain its action for relief. not a Monroe, County constitutionality. Accordingly, we Salla v. its A.D.2d superior court was cor- V. STANDING conclude that the did not waive its ruling rect in that Enserch argue Opel, The state and NANA constitutionality of challenge LaRose, standing and Enserch lack to as- imple- regional preference law or its supe- sert the claim. The menting regulations. LaRose, Opel, rior court ruled that citizen-taxpayer had standing

Enserch challenge regional preference BY law on IV. INTERVENTION OPEL equal protection grounds. AND LaROSE argue and NANA State “Standing in our state courts is not court abused its discretion doctrine; rather, a constitutional it is a rule allowing Opel and LaRose to intervene judicial princi self-restraint on the based filed this action because their motion was ple that courts should not resolve abstract days six before the scheduled motions for questions advisory opinions.” or issue summary judgment. contends Enserch “concept standing interpreted has been discretion that the court acted within its broadly Alaska.” Trustees permitting continuing oral intervention State, (Alaska 1987). 736 P.2d argument grant for a or denial week. Citizen-taxpayer standing cannot be permissive of a motion for intervention is challeng- claimed as matter of when subject to review for abuse of discretion. ing government conduct. 736 P.2d at 329. Weidner, (Alas State v. Instead, party asserting citizen-taxpay- 1984). ka standing following er must meet the crite- Anyone may in an action when intervene ria: applicant sharing has a claim common First, question case must be one questions of law or fact with the main public significance. of One measure of 24(b).8 In action. Alaska R.Civ.P. addi- specific significance may be that consti- tion, the motion to intervene must be time- issue_ tutional limitations are at Sec- unduly delay prejudice ly and should not or ond, plaintiff appropriate in the must be adjudication rights origi- the of the the of aspects. example, standing For several parties. nal Id. plaintiff if may be denied there is more directly by challenged affected the con- Opel that and The state concedes question likely duct who has or is LaRose raise the same constitutional issues bring is true if there is suit. same However, by the state asserted Enserch. interest, adversity true of such as a no unduly and NANA contend that were lose the plaintiff sham whose intent is to by Opel inter prejudiced and LaRose’s late precedent judicial and thus create lawsuit superior vention and the court’s refusal to upholding challenged action. Fur- discovery extend time for on the inter- ther, standing may plain- if the be denied beyond days the seven venors’ claims incapable, for economic appears tiff to be Opel La- granted. We first note that reasons, competently or other of advocat- already any Rose did not raise issues not position it ing the has asserted. Second, raised Enserch. the state omitted). (footnotes 329-30 depose the intervenors NANA were able to Opel and LaRose are construction argument summary judg on the before facts, Borough. who do not reside light ment motion. of these we workers Anchorage and a Opel did not is a resident of superior conclude that court heavy equipment operator. He was em by permitting Opel abuse its discretion project dur- ployed by Enserch on the road to intervene. LaRose common_ 24(b) In exercis- provides: of law or fact in tion 8. Civil Rule the court shall consider its discretion (b) Upon timely ap- Permissive Intervention. delay unduly or whether the intervention will anyone may permitted plication a inter- be rights prejudice adjudication applicant's vene in an action when an claim original parties. ques- defense and the main action have a or project questioned sincerity shut until has their belief ing the fall of 1987 preference law regional He asserts that be- that is uncon- the winter. down for They represented by law it is are com- regional preference stitutional. cause of the forcefully petent present- be rehired counsel who have whether he will uncertain position. their do we believe that spring. ed Nor Enserch persons directly af- there other more and resident of is an electrician LaRose likely bring suit. fected who have or are from the away who turned Fairbanks superior Consequently, we affirm the court no- job day Enserch received site the standing Opel LaRose’s on issue emergency implementing order tice of the challenge regional preference Several employment preferences. under the Alaska Constitution. later, weeks LaRose was hired to work He that he lost at least project. claims The state NANA contend wages prefer- five weeks of because standing it as Enserch lacks since cannot ence. rights sert constitutional of a third applicant employ such party denied agree We with the ment due to the Opel citizen-taxpayer have LaRose and question law.9 We need reach preference under standing challenge party standing third because we believe clause. Initial- possesses a that Enserch itself sufficient constitutionality of the ly, we note that the interest-injury standing. interest to confer - regional clearly ques- preference law significance. Interest-injury standing requires As noted in “an in- tion of we Trustees, adversely significance one terest affected the conduct measure Trustees, complained is at of.” 736 P.2d at 327. specific constitutional limitation As we noted in Opel argue that Trustees: issue. Here and LaRose law violates economic, may an interest Such be specific guarantee “equal opportunity” intangible, as an be such aesthetic for all Alaskans found article section degree or environmental interest. The the Alaska injury Constitution. to the interest need great; basic ... idea is that “[t]he Second, we believe that both individuals enough standing trifle is identifiable parties appropriate bring this suit. fight principle; out a matter of the Opel LaRose and are construction workers standing trifle is the basis for and the part who have earned their livelihood principle supplies the motivation.” working projects. from on works omitted). (citations Id. his Each intends continue that the with Enserch but is concerned alleges Enserch that the enforcement of hiring preferences deny resident him inju- the law caused it economic result, opportunity to As a there $1,000,000. do so. ry alleges Enserch Because Opel is no and meet the injury doubt LaRose the of an state’s enforcement law, necessary requirement adversity basic conclude En- unconstitutional we Trustees, standing. requirement for P.2d at the See 736 serch satisfies basic adversity They plaintiffs; standing are not no one for our state courts. sham 1233, (Alaska litigant Bonjour, Generally, standing n. to assert v. P.2d 1241 15 lacks 592 rights 1979) v. (parent standing the Falcon constitutional of another. assert has child’s con- Comm’n, 469, Moreover, Alaska Pub. 570 P.2d rights). standing may be stitutional Officers (Alaska 1977); Wagstaff Superior n. 20 v. see party third when the conferred on a interested Court, 1220, (Alaska 1975). A rights party’s attempt his would to vindicate corporation rights can its own assert Falcon, very rights. P.2d at forfeit these rights Ry. Virginian v. employees. not the of its Supreme Court has al- 475. The United States 558, System Fed’n No. 57 S.Ct. 300 U.S. party par- lowed third assert interested 592, 604, (1937). 81 L.Ed. 789 ty’s equal protection when the claims interested Exceptions For ex- general rule exist. the party rights. his own Bar- unable assert standing ample, party we have third allowed Jackson, v. 73 S.Ct. rows special relationship the where a exists between (1953). L.Ed. 1586 See, e.g., Bonjour plaintiff party. and the third evidentiary hearing deny- that an neces- justification for fail to see a valid We pref- standing challenge equal protec- resolve the sary Enserch order to the law’s al- simply because erence law tion claim. infirmity dis- involves

leged constitutional I, section 1 of the Alaska Consti- Article employees. Alaska between crimination provides part persons that “all tution equal rights, opportu- entitled to EQUAL VI. PROTECTION nities, protection under the We law.” argues superior that the The state interpreted language article have summary judgment be- entering erred analysis using sliding require section 1 to (1) genuine presents evidence cause ap- approach instead of the tiered scale fact, a matter of material issues equal protection analysis. proach of federal law, regional preference law does Erickson, (Alaska State equal protection clause. not violate 1978). approach We refined this State v. its accepted purposes for Enserch Ostrosky, 667 P.2d 1192-93 motion the defendants’ summary judgment 1983) and Assurance Co. Pacific superior court statement of facts. The (Alaska 1984). Brown, 687 P.2d 269-70 factu- development of a concluded applying sliding analysis, In scale we respect equal protec- al record with have noted on a number of occasions unnecessary as the tion claim was insofar provides great- often our state constitution legal analysis essentially claim was of such rights er to individual than does in nature. The state rather than factual the U.S. Constitution.11 present in their NANA have failed to Brown, we first determine the any disputed issues Under arguments appeal interest im- preclude summary importance of the individual of material fact which paired by challenged enactment. We judgment.10 importance then examine the us We conclude that the record before enactment, is, underlying interest legislature’s provides ample evidence of Depending the enactment. purpose adopting justifications individual inter- upon importance preference law as well as the economic and est, requires clause sociological supporting the data Commis- interest fall somewhere on that the state’s findings as to the conditions sioner’s legitimacy mere to a a continuum from addition, and En- Borough. State Finally, examine compelling interest. we ap- supplemented the record on serch have state interest and the nexus between the peal subsequent DOL de- with furthering that inter- means of the state’s reports concerning the ec- terminations and depending upon importance Again est. working in non-residents onomic effects of interest, equal protec- individual Alaska. We conclude that fall requires that the nexus tion clause finding genuine in that no court did not err from substan- dispute in on a continuum material fact were somewhere issues of Instead, appeal Jersey Supreme after rely Court on "direct on the Unit- the state and NANA 10. opinion Supreme proceedings in United ed States Court’s that led to the brief administrative Building v. and Construction Trades Council approval the State Treasur- of the ordinance Camden, 208, Mayor 104 and Council 465 U.S. Thus, Supreme the U.S. er.” 465 U.S. at 223. 1020, (1984), propo- 79 L.Ed.2d 249 appro- would not be Court concluded that ”[i]t evidentiary hearing or trial should sition that an be held before Enserch’s priate factual deter- Court either to make for the equal protection claim judicial initial matter or to take minations as an procedur- adjudicated. We note that the can be decay.” Id. of Camden’s notice very posture differ- al of the Camden case was case, unper- find it ent from this and therefore Inc., See, Transp., e.g., Lynden 765 v. Patrick 11. support case. In as for a remand this suasive Vest, 1988); 1375, (Alaska v. P.2d 1377 Schafer Camden, Supreme it Court concluded that C.J., 1984) (Burke, 1169, (Alaska 1172 680 P.2d plaintiffs privi- federal could not evaluate the Entry concurring); Com- Fisheries Commercial challenge leges to the Camden and immunities 1255, (Alas- 1267 Apokedak, 606 P.2d mission v. municipal ordinance on the record before 1980). ka decided since the case had been New

632 clause, right living relationship12 pursue restrictive ties a a to least tial equal particular line work is a fundamental P.2d at 269-70. means. 687 Association, requires right. Sheley that all en- v. Bar clause thus Alaska protection 1980). 640, (Alaska legit- 643 As substantially related to a 620 P.2d we actments be Francis, enactments are in Robison v. 713 P.2d state interest. observed imate Some (Alaska standards, may 259, 1986), “employment in even 265 higher held industry restrictive means of construction must be considered a need to be the least right protection interest. fundamental entitled to the achieving compelling a 13 privileges clause.” and immunities of the inter- We first examine the nature right living is not regional preference While the to earn a a impaired est right equal argues right to seek fundamental under the federal law. Enserch clause, gainful employment protection in one’s Bd. Re- Massachusetts and obtain 307, important Murgia, The Bor- v. 427 96 S.Ct. very is a one. tirement craft 2562, (1976), that, general L.Ed.2d ough responds while the 49 520 we have noted right engage in an “right important, to work” be economic particular public particular industry a in a within a is an right job to work on endeavor right protec- particular “important” equal is much less for state craft a location Similarly, argues En- purposes. the state tion Commercial Fisheries critical. 1255, degree Apokedak, to which v. P.2d try should consider the a Comm’n 606 we (Alaska 1980). impairs the at issue before as- 1266 Brown, signing right weight. See Apokedak At issue was whether the (impairments 687 P.2d at 271 Entry restricting Act Limited commercial travel). preference applies Because fishing in Alaskan waters was consistent positions only percent 50 of certain craft clause of the with area, project particular works in a Entry Alaska Constitution. The Limited argues application of a the State for the fishing in Act barred commercial scrutiny. level of low Entry entry permit. without an fisheries acknowledged impor- only could from permits Our cases have be obtained pur- applicant gear opportunity to work. For state if the held a license tance 1, January Apokedak, the federal and immuni- In poses privileges before already stating scrutiny analysis process re minimum level of tion because due between interest quires the nexus the state’s that enactments be reasonable not means, we enactment and the chosen state’s arbitrary. Concerned South Kenai Citizens of suggested have sometimes that the classification Borough, v. Kenai 527 P.2d Peninsula Peninsula “reasonable, arbitrary" be and rest must “upon 447, (Alaska 1974); Corp. v. Lo Mobile Oil ground having some difference fair 92, Comm’n, (Alaska Boundary cal 518 P.2d object of the and substantial relation to the 1974). requiring If an enactment the mini Inc., legislation.” Lynden Transp., Patrick v. scrutiny level of ever be mum could substantial (Alaska 1988); Aero- P.2d Herrick’s legitimate ly related to state interest still State, Repair Dept. Auto-Aqua Service v. arbitrary, unreasonable or we would find (Alaska 1988); Transp., process, equal protection. due that it denied Ostrosky, v. State 667 P.2d 1983). language originally This comes local law here like the state 13. Royster Virginia, Guano Co. v. 253 U.S. F.S. subject preference law at issue in Robison is 561-62, 40 S.Ct. 64 L.Ed. 989 federal and immunities clause. subsequently quoted our decisions and was Bldg. May United Constr. Trades Council (Alaska 1973) Wylie, State Camden, or and Council 465 104 (Alaska Rickey, and Isakson v. P.2d 362 550 (1984) (local hire 79 L.Ed.2d 249 1976). requirement that the classification city projects preference public for works law is arbitrary predates our be reasonable not scrutiny subject and im to under the sliding analysis. Since it is a Erickson scale though it discriminated munities clause even imposed upon requirement the state’s chosen well). against state residents as than interest or the means rather the state’s plaintiffs that in this action court ruled interest and the nexus between means, state’s corpora being and an Alaska Alaska residents imposition requirement of this a by protected in this case the federal equal analysis tion are not protection not fourth level of privileges and clause. Enserch did by opinion re immunities required our in Brown. This ruling. part equal protec appeal this quirement need not our not here, right portunities right question in for nonresidents of a zone.15 However, particular industry. work in a we also were not faced with a Apoke deprivation total regional pref- argues that The state dak where right we announced that greater deference erence law is entitled to engage impor endeavor economic is an applies only it to certain crafts because Apokedak, tant one. we noted that projects in certain areas. state construction while gear those without licenses “are de However, that the local hire is limited prived opportunities changing some projects does public works construction their status in fishing industry ... significantly impact reduce its since not entry secure majority permit through trans “public works account for the fer, activity purchase in Alas- commercial construction or inheritance.” 606 P.2d at 14 By restricting public Therefore, ka.” the number of 1266. that the restriction jobs works construction available to non- employment opportunities may not be total residents, regional preference law zone importance does not diminish the of the impose significant will limitations on con- right asserted.16 employment op- struction workers’ overall portunities. unemployed right electrician We conclude that affected unemployed heavy by regional preference from Bethel and the impor law is an operator Dillingham equipment Therefore, from seek- tant one. closely we will scruti Trans., job project a on the Enserch will find Lynden Patrick v. nize the law. Inc., occupa- fact little solace other (Alaska 1988). 765 P.2d private jobs tions or are not covered scrutiny impairing Close of enactments preference. important right engage in economic en requires deavor the state’s interest acknowledge prefer We that the resident underlying only legit the enactment fifty percent applies ence to at least imate, important, but and that the nexus positions particular in a craft. available Thus, necessarily important between the enactment and the we are not confronted deprivation employment op with a total interest close.17 serves be Robison, good guarantee 713 P.2d at 262. Even in eco- there is no the Commissioner times, grant public particular position. will Moreover, a waiver for a nomic construction "accounts for qualified sixty seventy percent in situations where resi- approximately or more available, outlay dents are these waivers are of no of the total construction dollar within the unemployed value to non-resident workers. state.” Id. Apokedak, 17.In we noted that on the "[biased Robison, (Alaska 1986) (all 15. See 713 P.2d 259 right, greater nature of the a or lesser burden is positions projects on state works closed placed on the state to show that the classifica- Martin, workers); Gilman v. non-resident tion has legitimate governmental objective.” fair and substantial relation to 1983) (non-borough resi 606 P.2d prohibited participating borough dents 1264. This was a correct statement of the rule Ass’n, lottery); Sheley land v. State Bar Erickson, we announced P.2d at 12. (Alaska 1980) (30-day residency require However, require this formulation led us to admission). ment for bar impairing important an enactment bear relationship a fair and substantial impact percent preference 16. The Apokedak, 606 state’s interest in the enactment. compounded the cumulative effect of other P.2d at result is at odds with our 1266. This might preferences apply particu- which also in a 269-70, Brown, holding in 687 P.2d at example, lar zone. For for eco- and the state’s nexus between an enactment minority nomically disadvantaged residents in merely interest must be more than substantial provides AS 36.10.170 for a important rights impaired. We when more greater percent percentage represent- of 25 inquiry proper enactments now state the minority ative of the civilian residents in a zone. rights important impairing as the as Consequently, in some zones the ques- engage We do in economic endeavor. high disadvantaged minority preference is as tion the fundamental nature of our state percent. Preference Deter- See Resident Hire analysis: single, flexible it remains mination, June 1988 at rigid, approach like that test and not a employed tiered interpreting equal protection is the Commissioner’s the The law not saved preference eligible power the Constitution. Enactments im- to waive a when zone clause of pairing rights First, important less than the residents are unavailable. AS 36.10.070. more or in an- similarly-situated on workers of benefit We turn to an examination next legitimate legislative region not a other is adopting the state’s interest the NANA, goal.19 State, and The preference law.18 preference in argue that the Borough the essentially in- ends our This conclusion important of has a number AS 36.10.160 legislature hoped That to quiry. the also findings The agree. legislative We goals. the economical- preserve social structure of to “reduce explain act was enacted that the as a distressed areas cannot be viewed ly among residents separate aiding that purpose from of state, resulting from remedy social harms It make of areas. would not residents such assist economi unemployment, and chronic may that a not sense to conclude statute disadvantaged residents.” Ch. cally two ar- residents of discriminate between Thus, repre the statute SLA 1986. § in order aid the residents of eas preserve the social attempt sents area, such a disadvantaged more but that economically distressed in an structure resi- statute could discriminate between employment opportuni by providing zone of areas order to aid dents two qualified workers on state-funded

ties for disadvantaged in the more communities there. projects construction merely The are the col- area. communities constitu- lective sum of the residents. Our important, goals are While these rights “persons,”20 guarantees tion objective underlying of econom- conceal the separately from not communities viewed another. We ically assisting one class over people who constitute communities. objective illegitimate. this is have held that State, Transport, v. Lynden Inc. community if find Even we were to (Alaska 1975), we ruled that important objective separate aid is and non- between residents goal benefitting “discrimination the residents of solely object area, of as- un- given residents based would hold the statute we econom- sisting the class over the other the fit one constitutional because between upheld ... the ... not ically objective cannot be under law is seriously un- While that is over- and close. clause[ ].” prioritize does discrimination between state it case involved definclusive because nonresidents, principle relief for those areas most affected residents and among equally applicable employment. to discrimination Residents nonresident unfairly dis- ad- that the zones be state residents. We conclude less distressed vantaged of more unemployed compared workers in residents parate treatment nonresi- zones. This means that region in to confer an economic distressed one order protection engage re- affords at as much intrastate in economic endeavor shall least privileges scrutiny challenged rights im- less when fundamental ceive more or Lynden protection affords interstate. See equal of the Alaska munities clause under clause Trans., State, Inc. 532 P.2d Constitution. Robison, 1975); at 264 & n. 713 P.2d against present out-of- AS 36.10.- statute discriminates court first looked to 18. who purpose How- as well as Alaska residents the statute. state residents 006 to discern the ever, given purpose adopted zone. It would do reside in this statement of 36.10.010, resi- that out-of-state part law over- anomalous to conclude of AS the resident hire Thus, higher degree provision are of constitu- dents afforded turned in Robison. protection determining purposes in-state residents who tional than value little regional against. also discriminated law. I, provides: example, article section 20.For excluding Similarly, observed that we have jobs rights. is dedicated Inherent This constitution so "non-residents from construction persons natu- principles that all have a jobs Alaskans more be available to ... will life, happi- liberty, pursuit permissible justification ral ness, for discrimina- is not a enjoyment of rewards of privileges and immunities tion under Francis, persons equal industry; all own their clause." Robison rights, equal opportunities, (Alaska 1986). Although Constitu- and entitled to the Alaska law; all protection and that under and immunities tion does not have clause, corresponding obligations op- persons rights, have view that the is our people of art. the state. portunities § clause unfairly predecessor. enforcement 36.10.160’s dent will be disadvan- of AS workers Francis, Indeed, Robison v. 777 P.2d 202 taged distressed zones. in less 1989) (“Robison II”). II, In Robison we while selected the Bor- the Commissioner may that held “the state not be held liable ough place prefer- invoke the first to the damages arising passage for from the law, report ence his own showed legislation.” unconstitutional 777 P.2d at Borough percentage had the lowest of non- explained We the sound reason for twenty-nine resident workers the zones holding Schafer, Vest surveyed. Because the economic criteria (Alaska 1988): economically designating for an distressed For a court to hold state liable for given very zone are broad Alaska’s histori- legislation unconstitutional would intro- cally rate high unemployment compared to profound duce conservative tilt into the nation,21 the rest of the Commissioner lawmaking process. Legislators would any designate many regions time could legislate, become to. knowing reluctant within the state as distressed zones. The money damages that were at stake if a law thus poten- has a ultimately disagrees court with their own tial for over- and pervasive underinclusive- appraisal constitutionality a bill. prioritization ness. the law’s lack of Given reasons, 757 P.2d at 595. For these we together eligibility require-' with its broad Enserch, Opel, hold that ments, neither nor La- we would hold that the law’s classi- damages Rose is entitled to seek for the closely fication scheme is not related to its state’s enforcement AS 36.10.160.23 purpose.22 Therefore, consider we need not whether reasons, For we the above affirm the superior correct in court was conclud- superior decision that AS 36.- right ing that not waive its Enserch did to 10.160 the Alaska violates Constitution.- damages seek such from the state. VII. DAMAGES VIII. CONCLUSION argue The state and NANA that superior ruling We affirm the court’s superior concluding court erred in that En- right that Enserch not waive its did to right serch to did not waive its seek dam challenge constitutionality of the re- ages the state for its enforcement law, Enserch, gional preference regional preference law. We reverse Opel, standing. and LaRose have We con- determination court’s without clude that the court did not abuse its dis- deciding the waiver issue because plaintiffs Enserch allowing cretion in the individual right does damages not have the to seek that AS intervene. We hold 36.10.160 for the regulations enforcement of unconstitutional implementing and the and or- Robison, sequel law. equal protection provi- we denied ders contravene $31,000 nearly wages Finally, claim for Francis’s sion of constitution. we right he no would have earned but for the state’s conclude that Enserch has seek law, regional preference region question preferences 21. Under the whether the are suf- may economically ficiently purposes be declared distressed if the of the law. tailored to region unemployment rate within exceeds unemployment percentage rate five 23.Enserch not entitled to recover dam- also is 36.10.160(b)(1). points. State studies indi- ages promised for breach of contract since cated State of Alaska that the entire could have regulations “comply regarding with all laws designated been distressed hiring residents now in of Alaska effect Robison, zone in 1985. See also 713 P.2d at 265 may subsequently take While this effect." (setting n. 6 forth rates waiver of clause does amount to a Enserch's 1970-1983). U.S. and Alaska from constitutionality challenge law, promise regional preference the clause is a argued that there was Enserch suffi- implementing comply law and its with the ciently grounds on the close means-ends fit comply regulations. By agreeing to with the effectively legisla- achieve law will not hiring preference, Kotzebue Enserch waived its purpose ture’s and it have undesirable eco- damages arguments, increased consequences. seek contract nomic These process, imposition. due to sound in substantive due are unrelated costs its I, construed, section 1 Thus I believe article enforcement of damages for the state’s au- prohibits regional hiring preference judgment The law. unconstitutional imposed part by 36.10.160 and AFFIRMED thorized superior court is Francis, v. part. REVERSED the case at bar. See Robison (Alaska 1986) (Burke, 259, 271-72 713 P.2d MATTHEWS, C.J., joins, and Vest, 680 P.2d concurring) and v. J. Shafer BURKE, J., joins part. C.J., 1984) (Burke, 1169, 1171-72 concurring). BURKE, J., concurs. My much of conclusion renders COMPTON, J., dissents. super- analysis “equal protection” court’s RABINOWITZ, J., joined by dissents concur, however, in the result fluous. I

COMPTON, J. remainder expressed in the and the views BURKE, Justice, concurring. opinion. court’s it, case, as I question The in this see Justice, COMPTON, dissenting. promot- interest in the state’s not whether outweighs individual hire agree I the court’s resolution with equal treatment. plaintiffs’ interest intervention, standing I issues. waiver doing the state is question is whether however, mis- suggest, that the court has something Alas- prohibited which is equal protection clause applied the Alaska ka Constitution. to this case. things simply are because Some unlawful court, footnote, significantly in a Ex constitutionally prohibited. they are equal analy- changes way protection an attainder, for facto laws and bills of post equal under Alaska sis is conducted under example, unlawful both protection Op. at n. 19. clause. constitutions, whether and federal2 state1 immunities privileges and creates a federal important, even an over- or not there “floor” for an Alaska whelming, governmental (public) interest im- analysis legislative enactment when a by passage and enforcement of be served protected under the pairs right arguably Thus, of our measures. one earliest such If a non- protection clause. equal Alaska contains “that cases the observation successfully could chal- resident of Alaska police compre- power [state’s] —broad priv- lenge enactment under the federal may though it not be exercised hensive is— clause, en- ileges then the and immunities plain unambiguous in contravention of equal protec- the Alaska actment violates Matthews constitutional inhibitions.” feder- If it does not tion clause. violate (Alaska 1961). Quinton, 362 clause, en- al and immunities under the I, actment must then be examined the Alaska Article section 1 of Consti- equal analysis. states, protection things, three-part all Brown among other “that tution Brown, Assurance Co. equal and entitled Alaska persons equal Pacific (Alaska 1984). This, 687 P.2d 269-70 opportunities.” as I read rights [and] it, express upon limitation amounts funda- Regardless validity of this plenary power of the state to the otherwise protection change way equal mental employment rights deny equal its citizens analyzed the Alaska Con- claims are under opportunities.3 stitution, an examination of the does not so, approach “new” possible us to law under this it is do we

Since I, support the court’s conclusion section 1 to be must construe article Const, XII, violates the Alaska self-executing. art. law Alaska 9. § Const, I, edly delegated States Consti to it United § art. 15. 1. tution, plenary. legislative power is a state's Thus, any not forbid to enact a state is free U.S. Const. art. 9.§ law. Der constitution or federal den its own n. Myers, as v. 272 Or. government, Unlike federal omitted). (1975) (citation expressly impli- powers exercise those ” analyzing prefer- Building, State’s residents.’ clause. United law, suggested (quoting at 1030 approach I will use the ence Hicklin, 2491). applying in footnote first 437 U.S. at 98 S.Ct. at by the court contrast, law, immunities and In the Camden ordinance privileges federal scope employees in three-part working Brown test. “limited to di then the rectly city public projects.” on works Id. Supreme The Court con- United States at issue The same distinction can made in sidered a law similar to one be case; present Bldg. here in Trades Alaska hire law is United & Constr. Camden, applicable publicly Mayor 465 U.S. funded construction Council 208, 1020, (1984). Supreme 104 L.Ed.2d 249 contracts. While the in S.Ct. 79 Court City Building “impossible The of Camden enacted an ordinance found it United requiring percent justification that at evaluate least 40 Camden’s [for stands,” id., employees of contractors and subcontrac- on the record as it now it law] working city projects scope is clear that tors construction of the law is an Although important in determining Camden residents. the Su- factor whether a be preme privileges remanded the case for further and immunities violation Court exists. findings it that: factual stated addition, law, In justifications for the Every inquiry Privileges under the presented by the “evil” nonresidents and Immunities “must ... conduct- Clause be way in law seeks to reach its regard principle ed with due for the objectives are relevant considerations. should have considerable lee- States Hicklin, Supreme Court held an way analyzing pre- in in local evils and Alaska hire law unconstitutional under the scribing appropriate cures.” This cau- privileges and immunities clause of the particularly appropriate tion is when 518, United States Constitution. 437 U.S. government body merely setting condi- 98 S.Ct. 2482. The Alaska hire law at issue expenditure tions on of funds con- purpose was enacted for the Hicklin trols. reducing unemployment within Alaska. “ 222-23, (citations Id. at S.Ct. at 1030 required gas The law ‘all oil and omitted). leases, right-of-way permits or easements Notwithstanding that the law was still gas pipeline purposes, oil unitization or examined under the and im- be agreements, any renegotiation any or clause, Supreme munities held Court preceding party’ to which the state is a that: employ- provision ‘requiring contain a pref- expending qualified

The fact that Camden is its ment of Alaska residents’ 520, own funds or funds it administers in erence to nonresidents.” Id. at 38.40.030(a) (quoting grant accordance with the terms of a is S.Ct. at 2485 (1977)). certainly perhaps the crucial factor— evaluating factor—to be considered in Court, using analysis Supreme vio- whether statute’s discrimination Witsell, first enunciated Toomer Privileges lates and Immunities 1156, 92 L.Ed. 1460 U.S. 68 S.Ct. Clause. (1947), 335 U.S. 69 S.Ct. reh’g denied at at 1029. Id. S.Ct. (1948), that nonresi- 93 L.Ed. 389 stated peculiar “a source of the dents were not Supreme Building Court United unemploy- “uniquely high evil” of Alaska’s distinguished the hire law at issue at 98 S.Ct. at ment.” Id. 437 U.S. Orbeck, Hicklin v. omitted). (citations Supreme (1978), stating 57 L.Ed.2d 397 Court noted that: the Alaska hire law was invalidated “ the record does contain attempt virtually to force all business What evidence ‘an Alas- major that the cause of way in some from the eco indicates es benefit not the in- high unemployment was ripple nomic effect of Alaska’s decision to ka’s seeking employ- develop gas resources to bias flux of nonresidents its oil ment, rather the fact that substan- employment practices in favor of the but their jobless ployment preference unemployed resi- resi- tial number of Alaska's job-train- or to residents enrolled unemployed Eski- dents especially dents— ing programs might permissible, Alas- unable and Indian residents —were mo grant job ka Hire’s across-the-board of a employment either because secure preference to all Alaskan residents clear- job training their lack of education ly is not. geographical their remote- because of job opportunities; 527-28, ness Id. 98 S.Ct. at threatened employment of nonresidents [Although Privileges and Immuni- only to deny jobs Alaska residents preclude disparity ties Clause ‘does jobs for which untrained the extent many treatment situations being might be prepared residents were perfectly indepen- there valid where are by the resi- filled nonresidents before dent reasons for it ... does dis- bar [i]t completed. training was dents’ against crimination citizens of other States where there is no substantial rea- 526-27, Id. 98 S.Ct. at 2487-88.1 at beyond son for the discrimination Supreme on to The Court went they mere fact that are citizens of other peculiar “a even if nonresidents were States.’ evil,” hire failed the Alaska law source of (quoting at Id. 98 S.Ct. at 2487 Toom- pass to constitutional muster because er, 1162). at at U.S. against discrimination nonresidents did relationship par- being In this case nonresidents are dis- bear a “substantial against only finite present.” to Id. criminated because a ticular ‘evil’ are said job geo- opportunities number of exist in No 98 S.Ct. at 2488. “substantial graphically areas. The mis- remote relationship” the Alaska existed because purpose characterizes the state’s in enact- prefer- hire law created across-the-board preference intending as law to con- ence residents over nonresidents for all for fer an in cer- economic benefit workers law, id., jobs by noting: covered This, however, regions. tain is attempt If ease its unem- Alaska means which the state seeks achieve problem by forcing employers ployment reducing, to ex- the end of the maximum against the State to discriminate within alcoholism, abuse, possible, do- tent child again, policy which a nonresidents — mestic ills violence and other related social present ques- serious constitutional regions in certain Alaska.2 it so tions—the means which does closely addition, more tailored to aid the requires must be law this Alaska hire unemployed Act relationship is intended to bene- between the “reasonable nomcitizens, granting danger represented by fit. an em- Even if a statute Supreme report qualifications. to a for Court referred Federal Field Committee Alaska, high unemployment Planning Development for rates discussed reasons in Economic report (1971) (emphasis in Alaska. The remarked that: for Outlook added; Alaska 311-312 omitted). in-migrants footnote The skill levels of and seasonal Hicklin, n. generally higher 98 S.Ct. n. are than those of workers unemployed under-employed There is no reason to believe that these obser- or resident ability jobs today. in true Their to command vations do hold workers. of, sympton is a rather than the [sic] objective apparent 2. This the statute and resulting high in unem- cause conditions regulations. preference does not even be- rates, among ployment particularly Alaska Na- applicable de- come until the commissioner has jobs Those need tend tives. who most untrained, employment opportu- undereducated, termined “the lack living in or substantially nities in the zone has contributed job opportuni- areas of the state remote from problems to serious social or economic unemployed Unless residents —most of ties. 36.10.160(b)(2). of em- zone.” AS lack "[T]he access whom Eskimos Indians —have ployment opportunities substantially con- job has to training required markets and receive the education and problems tributed to serious social economic to fit them into Alaska’s increasingly technological changes economy and economic and un- if problems indicators social demands, changes restructuring number less there is a of labor linked jobs by persons people who work and are unable to filled want to new will continue to be necessary who obtain work.” 8 AAC 30.068. from other states have class, engage particular practiced individual’s and the ... discrimination Toomer, 334 U.S. at upon them.” economic endeavor. See Alaska Const. art. in VII, (“The the situation legislature provide S.Ct. at 1163. Unlike shall § where the discrimina- Toomer and Hicklin promotion public residents and nonresidents tion between health”); (“The legislature pro shall § total, only par- this hire law creates welfare”). vide for preference eligible in favor of residents tial that even if it court states found occupations dis- in certain legitimate, legislative purpose to be again, tressed areas. Once it is hard to would strike down the law be- narrowly imagine a law which more bal- prioritize cause “it does not relief for those ances an individual’s employ- areas most affected nonresident remedying concern for so- with state’s requiring legisla- ment.” The court is among living ills Alaska residents cial ture to use the least restrictive means to areas. these goal, effectively subjecting achieve the to an examination We now turn scrutiny. law to strict three-part under the Brown it, say, The court does not nor could right analysis. The court characterizes the the nexus between the state interest and by regional preference affected law as furthering the state’s means of that inter- right engage in an economic endeav- are not est reasonable. The commissioner industry particular or within a and con- apply preference region does not to a important that it is an one. As a cludes high until the link is established between a result, scrutiny the court states that close unemployment level of and the social ills legislative impair enactments which this 36.10.160(b)(2); sought to be reduced. AS require underlying state interest require “To 8 AAC 30.068. reasonable important legitimate to be and the nex- legislative nexus between means and ends us between this interest and the enactment perfection in is not to demand classifica- be close. En- tion.” Rose v. Commercial Fisheries again, it is the court’s declaration Once Comm’n, try illegitimacy of the state interest 1982). underlying law at issue in my places undue em- view misguided. The court appeal this that is phasis employ- an individual’s on in concludes that the state’s interest enact- ment, subordinating unnecessarily to that preference law was to confer an constitutionally permissible state right the in certain re- economic benefit on workers objective reducing to the maximum ex- gions of the state. The characterization of alcoholism, possible the endemic child tent underlying purely interest as economic this abuse, and related social domestic violence simply wrong. in nature is result, in certain areas of Alaska. As a ills Conferring on economic benefits workers uphold I the law as constitutional. would designated regions is the means seeking which the state is to achieve the RABINOWITZ, Justice, with whom alleviating social ills certain re end of Justice, COMPTON, dissenting. joins, supra note 2. It gions of Alaska. See holding from the court’s I dissent seriously argued that the state’s cannot be regulations implementing AS 36.10.160 reducing the maximum extent interest in clause of contravene alcoholism, abuse, possible the child domes I, 1 of the Alaska Constitu- article section and related social ills in areas tic violence question my opinion the laws tion.1 In causally high related to where disserve, serve, promise the art. § legitimate state is not equality under law. seriously argued goal. It also cannot be Second, of constitutional con- as a matter equally is not im that the state’s interest struction, con- disagree I with the court’s important, than the portant, if not more tion, standing disposition and waiver issues. join in the court’s interven- I unem- opportuni- exceeds the national rate of rights, zone that “the elusion I of art. protection percentage clause five ployment ties and least § intra- least as much affords at points; privi- rights that to fundamental state opportuni- employment the lack of inter- affords leges and immunities clause substantially in the zone contrib- ties has immunities privileges and Federal state.” prob- serious social or economic uted to analogue to appropriate not an doctrine zone; lems in the my opin- equal protection. Neither (3) employment who are of workers any analogy point this forced ion does is a of un- peculiar not residents source deficiency in the constitutional employment of of the zone. residents applied laws as or as enacted commis- Following a determination the case at bar. zone sioner that an distressed ALASKA STATUTE 36.10.160. exists, years and for the next two fiscal the state re- Enserch’s contract with (b) determination, pro- after such a section applica- “comply with all quired Enserch vides that: regulations the hir- regarding laws and ble qualified ... residents of the zone who residents,” including AS 36.- ing of Alaska eligible under shall be AS 36.10.140 10.160, point appeal. the focal given preference hiring for at least 36.10.160(b) provides that: project percent of on each Department The commissioner [of wholly par- under AS 36.10.180 that that an eco- shall determine Labor] tially prefer- within sited the zone. nomically exists if the distressed zone applies craft-by-craft ence or occu- commissioner finds that pational basis.2 (1)the capita per income of residents En- purposes summary judgment, For of the percent the zone is of of less than made serch conceded the commissioner per capita income States as of the United whole, necessary complied in the with unemployment findings or the rate a 30.065, eligible AS resi- .068 articulate criteria reserved under for 2. 8 AAC and .069 36.10.160 subject regard implement occupation a craft to a AS 36.10.160. In this dents in or provides: hiring preference, percent. AAC 30.065 is 50 provides: 8 AAC 30.068 Hiring of Econom- Preference for Residents Employment Determination That Lack of Zone, (a) ically purposes Distressed For of Opportunities Substantially Has Contributed 36.10.160, the deter- AS commissioner will to Serious Social or Problems. For Economic that an dis- mine area is an purposes AS and this of 36.10.150—36.10.175 if tressed zone chapter, employment opportunities the lack of (1) period most for for the recent 12-month substantially social has contributed to serious available, figures are which changes problems economic if in indica- or (A) per capita residents income of of problems are tors of social and economic per per the area is less cent of the than 90 changes people number of linked in the whole, capita income of States as the United who want to work and are unable obtain or use correlation work. commissioner will (B) average unemployment rate in the studies, testimony, analysis, professional average unemploy- area exceeds national relationship evidence to other establish points; percentage for ment rate least 5 unemployment or eco- between and social unemploy- example, average if national problems. nomic percent, average unemploy- ment rate is 5 provides: 8 AAC 30.069 at least 10 ment rate of the area must be Unem- Determination of Peculiar Source of percent the criteria area to meet of ployment. purposes For AS 36.10.150—36.- of subparagraph; 30.067, 10.175, (2) opportunities and 8 AAC AAC employment 30.064—8 the lack employ- substantially will commissioner determine to serious social has contributed area, peculiar problems source of as deter- ment of nonresidents is a or economic in the 30.068; unemployment percent if of the mined under 8 more than AAC expe- trained or is residents of an area who are of nonresidents occupation are unem- peculiar source of of residents rienced in a craft or area, ployed percent the total AAC 30.- and more than 10 of the determined under 8 employed area in in that number of workers (b) occupation public-funded project, residents of the mini- that craft or are not For percentage positions must be area. mum which illegitimate legislative goals are because in his of AS 36.10.160 requirements Ag 36.10.160, implement- regulations Arctic Bor- of the Northwest designation statute, disparate treatment ing this accord economically distressed zone. ough as an unemployed region workers in one concession, upon evi- Relying upon this order to confer an economic ben- legislative purpose dence similarly in anoth- efit on situated workers record, require superior court did not agree I region er of Alaska. cannot evidentiary record to of a full the benefit geographic must al- such discrimination job seekers this law affected show how I, ways run afoul of article section of the zone; the assisted within and without Lynden Alaska Constitution. Unlike superior court derive the neither did the State, Transport, Inc. v. 532 P.2d evidentiary presentation full benefit a (Alaska 1975), relies, upon the court illuminating purpose, would confer purposes 36.10.160is “residence” for of AS means, legis- fit and closeness of the I, personal political Article attribute. question. lation in section 1 should not bar discrimination EQUAL PROTECTION. aid. I favor of a “class” most need of analysis an Turning now to denigrate geographically would not such under article section protection issues inquiry into oriented assistance without Constitution, agree I with of the Alaska in- operation and effect—an the statute’s pursue a livelihood obviated, answered, by quiry but important right.3 Thus on Alaska’s slid- my opin- holding illegitimacy. court’s any infringement ing equal protection scale ion, on the the court’s semantic discourse implementation of 36.10.160 caused and individu- relation between communities scrutiny.” “deserving of close Patrick ascertaining wheth- als is no substitute for Inc., Transport, Lynden er individual needs bear some relation (Alaska 1988). were in geography such a relation —if 36.10.160, equality I under law doubt. believe that Concerning purposes of AS realized on an individual Alaska cannot be again agree I with court’s assessment legislative without consideration important goals basis that a number peculiar characteristics legislation, particular and sought to be furthered regions diverse and communities amongst preservation are: the of the of the Alaskan’s reside. economically structures in distressed which social zones, unemployment in the reduction of Neither, my opinion, zones, the al- distressed insufficiently close to ends/means fit here flowing harms leviation of social satisfy equal protection Alaskas test. I unemployment, and assistance of chronic the relation of the ends cannot characterize economically disadvantaged residents of ec- 36.10.160, and in AS to means articulated onomically distressed zones. close,” regulations, as “not applicable inclusive” and “seriously and under disagreement with the over My fundamental from the text of AS thus fatal.4 It is clear centers on its conclusion that these did, there would be few my in classification. If it has no which is view Enserch establishing that would equal protection laws classifications in the context of this entitled to challenge. protection Although my agreement equal have noted sustain an case. I omitted.) (Footnote that the individual with the court’s conclusion 471, Williams, important rights protected by Dandridge U.S. plaintiffs art. v. 397 have See also 491, 1161, I, 1, 485, 1153, plaintiffs qualify can 25 L.Ed.2d 501-02 these individual 90 S.Ct. § openings question. (1970): the available craft 50% of welfare, and social In the area of economics Entry Fisheries Comm’n v. Equal In Commercial Protection not violate the a State does 1255, 1980) (Alaska Apokedak, we 1267 merely the classifications because Clause that: observed imperfect.... does are [I]t its laws made simply because the Constitution legislature not offend in its wisdom could conceiva- mathemat- made with provided the classification "is not bly for such instances. have better nicety practice it results because in equal protection, ical or even under Alaska's But standard, Lindsley Carbon- inequality." v. Natural perfection not demand some stricter does 642 IV, ileges immunities article and clause of regulations and set out

36.10.160 2, preferences 2 Federal employment no section of the Constitution note public particu- help fuse into one Nation granted projects unless intended to require granting independent sovereign states. larly severe conditions collection of Witsell, 385, 395-96, preferences. 68 such Toomer 334 U.S. 1161-62, (1948). preferences question 1156, are limited to 92 S.Ct. L.Ed. 1460 region, regions, Francis, and a limit- particular 713 As we noted in Robison v. jobs in cer- percentage 259, (Alaska 1986): ed of the available 263 designated public projects tain crafts on clause privileges immunities evi- zone. Statistical designated within against all protect does not non-residents need for employed to establish the dence is lim- of discrimination. Its reach forms relationship any preferences, the between in- rights” rights ited “fundamental — pay- assistance activities, in- volving and essential “basic abuse, ments, violence, sexual al- domestic frustrate terference with which would coholism, use, My drug and suicide. read- purposes of the foundation of the 30.065, and 8 AAC of AS 36.10.160 Fish and union.” Baldwin Montana persuades 30.069 AAC 30.068 and 8 AAC 371, 387, Commission, 436 Game U.S. carefully legislature me that the fashioned 1862, 354, 1852, S.Ct. 56 L.Ed.2d 367-68 objectives fit of this a close between (1978). means selected to legislation and the of Alaska’s Examination records important legit- legislation’s achieve the to disclose constitutional convention fails goals. imate any incorpo- part intent on the framers’ AND IMMUNITIES. PRIVILEGES corpus privileges rate the entire federal equal agree I doctrine Alaska’s noted the outset cannot immunities into As court’s incorporation privi- protection provisions. Nor is the with the court’s clause, and Trans- leges protec- upon Lynden its reliance Robison and immunities tions, State, rights, opportunities port, 532 P.2d 700 into Inc. v. 1975), Both protection dispositive question.6 of art. 1 of the clause § Historically explicit chal- priv- Lynden and Robison involved Alaska Constitution.5 6. That 5. before similar to compel today’s holding opportunities, particular immunities challenge by immunities contrary, ordinance out-of-state residents. U.S. id. at 212 n. v. 1027. While Camden Trades Council Camden The court fy, government 734 ic Gas subject Mayor 208, L.Ed. if [(1913)]. us privileges Co., and Council AS today instance of discrimination subject equal scrutiny scrutiny misreads do not 36.10.160 220 U.S. Supreme an out-of-state 104 S.Ct. at 1024 does protection and immunities practical ones and to article 1020, protection [ require, "at the behest of” and in (1911) even not. United 61, 78, presented Id. to federal Court held the Camden that "the 79 L.Ed.2d City in the absence of a at ]. County rough analysis IV resident. To the Bldg. 218, "The clause of art. n. privileges privileges such a Camden, 4, accommoda and 104 S.Ct. problems and Constr. analysis the record may justi does against” Vicinity rights, claim, 340, and and 465 “a at is § fundamental munities clause bison, removal another arman sense of trine. those based on review under federal ileges immunities tions, age applies lapping clause ^[2842] Constitutional Virginia, affords privileges subject classifications or to and immunities clause applies 2847, coverage of the Tribe, does, v. but state of discrimination based on of the "disabilities of (1868). Dougall, many the same rights clause does not aliens, not identical. The and the supra and immunities at least an affords Law 6-33 at 411-12. Alien- residence. L.Ed.2d classifications, (8 Wall.) involving non-U.S. citizens 413 U.S. while United States § § equal protection clause interstate.” 16-31 at equal protection doc 853, two clauses intermediate L. 634, apply Tribe, expressly alienage” in the clause. Paul while 1089-90; privileges and 642, intrastate residency in (1973). is central to Indeed Ro American 19 L.Ed. corpora and im is over 93 S.Ct. level only to priv Sug lenges privileges goals heightened under the immunities five to withstand scruti- contrast, nothing in In ny. clause. instant action presents polit- a unilateral

record great- of a ical subdivision to detriment Simply, competing are not er union.7 zones rather, political sovereigns; corpora- like tions, they exist at the discretion of the my opinion, equal In

state. individual rights, opportunities under requires rather than forbids Alaska’s BEAVERS, Appellant, Marion legislators perceive their constituents as

members of the diverse communities in live. CONSTRUCTION, INC., ALASKA AL PAC/INA,

Finally, privileges if even and immunities and Alaska Workers’ Board, Compensation rightly equal protec- Appellees. inhered in Alaska’s provisions, I tions would conclude that the No. S-3114. regional preference laws are valid. Re- Supreme Court of Alaska. distress, gional economic and the statute's application limited designated 50% Feb. jobs, state funded likens this case more to my than to I Camden8 Robison.9 note Compton’s

concurrence Justice dissent to opinion. this facet of the court’s summary, assuming appro- even priateness of a and immunities

analysis, I would conclude that the legislation is constitutional. purposes legislation served

significant legitimate, and the means

employed purposes to meet these reflect a

sufficiently relationship legisla- close to the presents decay, property eroding, popula 7. The record no attack on either the with values statutory implementation sharply declining, definition or its tion defining Borough "spiralling.” the Northwest Arctic as a Id. 104 S.Ct. at [465 U.S.] preferred zone. While the zone in this case L.Ed.2d at un 261. While Alaska’s boundaries, political tracks I note this is chronically high large due in necessarily areas, case: 36.10.990 defines zone part unique conditions in rural state, to include “a census area in the an eco- economy remotely of the state does not seem state, region nomic and the state as a comparable picture “grave economic identity whole.” The of an individual and her suggested and social ills” tion, in Camden. In addi community particularly evident where a zone appears that the discrimination effect maps region. an economic greater ed the Alaska statute is than that in Camden. Public works the ma account for Bldg. jority activity United and Constr. Trades Council of commercial construction County Vicinity Mayor Camden opinion Alaska. While the does not indicate Camden, City Council Camden, 465 U.S. whether the same is true in the ex (1984). 79 L.Ed.2d 249 clusion mandated our state —90%to 100% required resident workers far more abso —is Robison, 9. As we stated in 713 P.2d at 269: lute than that in the Camden ordinance. As Court, presented con ordinance Furthermore, the differences between the goal, requirement, tained not a local hire act here and the ordinance in Cam workers on works construction 40% of noteworthy. findings den are As the reasons, projects indicate, be residents. For these un economy trial court Alaskan one, Wyoming Supreme like the Court in dynamic growing property [State v.] values (Wyo.1985) P.2d 60 we do not increasing, population ] Antonich [694 and Alaska’s is ex contrast, regard precedent supporting ap panding rapidly. in Camden the Camden as city proval law. claimed that it was in a condition of of our local hire Metropolis tions — illogical, may 69-70, Theatre 33 S.Ct. Co. v. be, City and unscientific.” Chicago, L.Ed. immunities several distinctions clause: 713 P.2d at clause and the between the 264 n. privileges and notes

Case Details

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

Court Name: Alaska Supreme Court

Date Published: Dec 18, 1989

Citation: 787 P.2d 624

Docket Number: S-2693, S-2694, S-2731 and S-2736

Court Abbreviation: Alaska