So, I wanted to post what was has been written for Kadee's initial PFD appeal. For most of you this will be boring as hell. But for the lawyers or law students out there I would love some feedback on this. And this little girl isn't an Alaskan! What a crock of shit. Round one of the fight of my life. I will visit the United States Supreme Court again in just a few days. I sometimes dream about taking this case all the way up those steps for my girls. She IS an Alaskan. I am right. Just look at this photo. Defense Exhibit A.
On December 26, 2008 the Department of Revenue (hereinafter the “department”) denied the Permanent Fund Dividend application of the applicant Kadee Adams (hereinafter “Kadee”). The grounds of denial were that the proposed sponsor was not qualified and that Kadee did not live with the proposed sponsor for the plurality of the qualifying year. Kadee appeals.

The question presented at this stage is this:
Pursuant to 15 AAC 23.113(g) an individual who did not have custody of the child for the plurality of the qualifying year may apply for the child if the individual satisfies the department that there is a “need” to file on behalf of the child. Thus the question is how to satisfy that need?

There are several facts that are not in dispute. The department did not deny the application for any reason other than the identity of the sponsor. Thus, there is no dispute regarding application questions 2A, 4A, 4B, 5 or that Kadee is an Alaskan resident. Thus, Kadee meets all eligibility requirements except that neither of her parents is an eligible sponsor. The law specifically provides for this situation in 15 AAC 23.113 (g):

An individual other than the Alaska Department of Health and Social Services who did not have lawful and physical custody of the child for a plurality of the qualifying year may apply on behalf of a child, if that individual or agency demonstrates to the satisfaction of the department the need for filing an application on behalf of the child.

Interestingly, the department did not provide this portion of the law with the denial letter. The reasoning contained in the denial letter is likewise incomplete. The question on this appeal is whether the proposed sponsor can demonstrate a need to file on behalf of Kadee. Unfortunately, the regulation does not give any guidance about what facts or evidence should be presented to satisfy the department of the need to file. However, Kadee has already established a prima facie case for the need for a substitute sponsor: she qualifies for the PFD in all respects except she does not have an eligible parent. She has lived almost her entire life in Alaska and is entitled to the same rights and benefits as all other U.S. citizens who are residents of Alaska. Since the Legislature specifically provided for children who are eligible but for the lack of a sponsor it appears that they did not want eligible children denied solely on this basis.

As Chairman Abood of the House Standing Committee said, when discussing requirements of the new statutory PFD distribution scheme:
1. We must treat all bona fide citizens equally.
2. We must not use past contributions, real or intangible as a reason to regard our citizens.
3. We cannot craft a law that would have the effect of varying or denying one citizen or resident the benefits afforded another.
4. Laws must not create layers of types of citizens.
See Comments of Chairman Abood, House Standing Committee, H.B. 11, 13th Leg., 1st Sess. (March 9, 1983).

Kadee’s appeal is specifically based on the rights found in the Alaska and United States Constitutions of Equal Protection, her procedural and substantive rights to Due Process and the Privileges and Immunities clause in the United States Constitution. We understand that the department has taken the position that it does not have the jurisdiction to resolve such claims (for example in State, Dept of Revenue v. Andrade 23 P.3d 58 (Alaska 2001) but Kadee raises them nonetheless.

However, it is not necessary for the department to resolve any broad constitutional claims at this stage. It is simply necessary to interpret the existing regulations in a manner that complies with Kadee’s right to equal rights, opportunities and protections under the law. At this stage it is sufficient to remind the department of its duty to comply with the Equal Protection clause found in both the Alaska and United States Constitutions. Kadee is entitled to the same benefits and legal protections as all other bona fide residents of Alaska. As the United States Supreme Court said in Zobel v. Williams 457 U.S. 55 (1982) “Alaska's reasoning….would permit the states to divide citizens into expanding numbers of permanent classes. Such a result would be clearly impermissible.Zobel at 64.

This is not a case of fraud. Kadee has not left the State of Alaska since arriving in September 2006 at 6 months of age. It is (properly) undisputed by the department that Kadee is a U.S. citizen and a bona fide resident of Alaska. She meets all the eligibility requirements but one. Again, the law (although, once again, this portion of the law was not sent with the denial letter) directs the department to approve the application if there is an appropriate sponsor. 15 AAC 23.113(i) provides that:

The department will accept another eligible individual as a substitute sponsor of a child if the child meets all eligibility requirements but does not have an eligible sponsor on file with the Department, so long as the substitute sponsor meets the requirements of a sponsor (emphasis added).

The substitute sponsor received a PFD in 2008. He is an eligible and appropriate sponsor. He is Kadee’s attorney and has provided a duly executed power of attorney to the department. The law is clear in both 15 AAC 23.113(e) and AS 43.23.005(b) that a “parent, guardian or other authorized representative” can apply for a child. An attorney with a power of attorney is clearly an authorized representative. See AS 13.26.338 through 13.26.353.

It is undisputed that there is no application on file from the parents as they are not eligible for a dividend. They suffer from a legal disability which cannot be imputed onto Kadee. The law does not say that a child must suffer when the parents are ineligible. Indeed the law is exactly the opposite: the law specifically provides for this situation and allows another authorized person to apply. If the law did not provide for this it would not comport with the requirements of Equal Protection. The department has a duly executed power of attorney as evidence of the proposed sponsor’s qualification to apply for Kadee. The department has not disputed its validity nor has it disputed that (the substitute sponsor) received his own PFD in 2008.

In sum, where a child is eligible in all respects but one, both the law and the constitutional right to Equal Protection demands that the department approve a substitute sponsor. Kadee is a bona fide resident of Alaska and it is not her fault that her parents are not eligible for the PFD. The Legislature has expressly recognized that this situation may occur and has provided a way to ensure that all residents are treated equally. Kadee is as Alaskan as every other child who is growing up here. She plays in the snow and knows what a moose is. She should have every opportunity that every other child has. There is no legal reason to deny her application and the initial denial was in error. Kadee asks the department to reverse itself on this initial appeal.
Thoughts? I hope she wins at the first stage. But, if not, just as good.


Anonymous said…
Are there any cases on point for 15 AAC 23.113? Is it really for citizen children with foreign parents or is it for kids with no family (like guardians).

dan said…
Who's your attorney?
G...Adams v State looks like it will the first. Dan...Ken Florence of Kenai.
josh said…
when does this need to be filed?
It will be filed in the next few days. By Jan 25.
D said…
A well told story. My only comment is that it seems more suited for a jury or trial judge than for an administrative appeal. Then again, you know your audience way better than I do! And besides, the likelihood of prevailing at this level is low. Although if they know what is good for them, theyll figure out that paying these girls what is due them is smarter than letting this go to court and setting precedent.

Fortunately, bureaucrats are rarely that smart.

Good luck man, I think the equal protection argument will be bulletproof once you get in front of the right judge.

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