author: MATTHEWS, Justice.

text:
    Jim DUNCAN, Commissioner, Alaska Department of Administration, Guy Bell, Director, Division of Retirement and Benefits, and State of Alaska, Petitioners, v. RETIRED PUBLIC EMPLOYEES OF ALASKA, INC., Alaska AFSCME Retired Ch. 52, William T. Bryant, John Harris, individually and as class representatives, and National Education Association, National Education Association Retired, Jeanne Bradner, Joyce Hammonds, Edward Shellinger, and John and Jane Does 1-3, for themselves and other similarly situated, Respondents.
    No. S-10377.
    Supreme Court of Alaska.
    June 13, 2003.

      Kathleen Strasbaugh, Assistant Attorney General, Bruce M. Botelho, Attorney General, Juneau, for Petitioners.
    Don Clocksin, Don Clocksin Law Office, Olympia, Washington, for Respondent NEA-AK.
    Bradley D. Owens, Jermain, Dunnagan & Owens, PC, Anchorage, for Respondent RPEA.
    Jay W. Trumble, Anchorage, for Respondent ASEA Local 52.
    Before: MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

MATTHEWS, Justice.

I. INTRODUCTION

Article XII, section 7 of the Alaska Constitution protects retirement benefits of public employees from diminishment or impairment. But benefits may be changed if any detriments are offset by advantages. The main question here is whether as to changes in health insurance plans this balance must be struck taking the perspective of each individual or the group. We conclude that the group perspective must generally be used because individual evaluations are subjective and uncertain.

II. FACTS AND PROCEEDINGS

In 2000 three retiree organizations and individual members (collectively “the retirees”) brought separate lawsuits against Bob Poe, Commissioner of the Alaska Department of Administration; Guy Bell, Director of the Alaska Division of Retirement and Benefits; and the State of Alaska (collectively “the state”), alleging, in part, that changes made to the state’s group health insurance plan for retired public employees in 1999 and 2000 violated article XII, section 7 of the Alaska Constitution by diminishing accrued benefits. The cases were consolidated and then certified as a class action. The classes consisted of more than 20,000 retired persons eligible for retirement benefits under Alaska’s Public Employees’ Retirement System (PERS) and Teachers’ Retirement System (TRS). The background of these suits is set out in the following paragraphs.

In 1975 the state began paying premiums for major medical insurance for PERS and TRS retirees. The coverage was subject to deductibles, co-payments, and maximum limits. When it was first instituted, and periodically thereafter, state publications advised state employees that the benefits would be provided and paid by the state during their retirement. Changes in the insurance were made periodically: services were added, pre-certification was required as a cost-saving measure, and co-payments were changed. In 1986 for PERS and 1990 for TRS substantial changes were made by lowering benefits and increasing the retirement age for employees starting work after these dates. The changes thus resulted in a second tier of retirees.

In 1998 a number of retirees requested that the state update the retiree health plan. The respondent, Retired Public Employees of Alaska, suggested a number of coverage changes. The state was not opposed to changing the plan but sought to achieve “cost neutrality” by balancing cost-increasing changes with cost-saving changes. After a substantial process of consultation, the state in 1999 and 2000 made a number of changes to the plan. Some of the changes provided greater benefits; others were disadvantageous to retirees.

The retirees were dissatisfied with these changes and sued the state, seeking a declaration that the changes amounted to an impermissible diminishment of accrued benefits under article XII, section 7 of the Aaska Constitution. They also sought an injunction against any modification that required retired public employees “to pay any costs for medical benefits without providing sufficient comparable new advantages that constitute an effective offset for any such costs.” Finally, they sought damages for retired public employees “for the costs they have incurred or paid after the modifications.” After substantial discovery both parties moved for summary judgment. Superior Court Judge Mark Rindner granted the retirees’ motion for summary judgment and denied the state’s cross-motion. The court deferred ruling on remedies pending further briefing. Meanwhile, the state petitioned this court for review of the superior court’s decision on summary judgment, and we granted the state’s petition.

III. STANDARD OF REVIEW

We review a grant of summary judgment de novo. Summary judgment is proper if there are no material facts in dispute and the moving party is entitled to judgment as a matter of law. “The proper interpretation of a constitutional provision is a question of law to which this court applies its independent judgment.”

IV. DISCUSSION

The state makes several arguments, but only three are within the scope of the summary judgment order of the superior court. This opinion is restricted to these arguments. They are:

(1) Article XII, section 7 of the Alaska Constitution does not encompass health insurance benefits;

(2) Alternatively, if article XII, section 7 encompasses health insurance benefits, it only requires that premiums paid on behalf of the retirees not be diminished; and

(3) Alternatively, if article XII, section 7 encompasses health insurance benefits and guards against more than a reduction in premiums, changes in benefits are permissible so long as disadvantages resulting from such changes are balanced or outweighed by advantages and that this calculation must be made from a group rather than an individual perspective.

For reasons that are similar to those expressed by the superior court, we reject the first two arguments made by the state. But we agree with the state’s third argument for the reasons expressed below in part D.

A. Article XII, Section 7 Overview

Article XII, section 7 of the Alaska Constitution provides:

Retirement Systems. Membership in employee retirement systems of the State or its political subdivisions shall constitute a contractual relationship. Accrued benefits of these systems shall not be diminished or impaired.

Under this section, retirement benefits are “regarded as an element of the bargained-for consideration given in exchange for an employee’s assumption and performance of the duties of his employment.” “[A]n employee’s rights to benefits under [retirement] systems ... vest on employment and enrollment in the system” rather than “at the time when an employee becomes eligible to receive those benefits.” This means that system benefits offered to retirees when an employee is first employed and as improved during the employee’s tenure may not be “diminished or impaired.” But this prohibition does not mean that vested benefits cannot be altered. Reasonable modifications are permissible. But to be sustained as reasonable, changes that result in disadvantages to employees should be accompanied by comparable new advantages.

These principles are not in dispute. What is disputed is whether the term “accrued benefits” in article XII, section 7 includes health insurance benefits and if so how to apply the “diminished or impaired” prohibition to challenged changes in coverage.

B. Article XII, Section 7 Includes Health Insurance Benefits.

When construing the constitution, our objective is “to give effect to the intent and purpose of the framers of the constitutional provision and of the people who adopted it. Unless the context suggests otherwise, words are to be given their natural, obvious and ordinary meaning.” In the present case there is little question that the phrase “accrued benefits” as used in article XII, section 7 of the Alaska Constitution, if given its natural and ordinary meaning, would encompass health insurance benefits offered to public employee retirees. •

The state argues that since health insurance benefits were not provided by territorial retirement systems when the Alaska Constitution was drafted and ratified, they were not meant to be included within the term “accrued benefits.” The state also argues that practical considerations counsel against the inclusion of health insurance benefits as constitutionally protected accrued benefits. The state observes that Congress when enacting the Employment Retirement Income Security Act (ERISA) decided not to impose vesting requirements on medical insurance plans because so doing would “seriously complicate the administration and increase the cost of plans whose primary function is to provide retirement income.” According to the Third Circuit:

Automatic vesting was rejected because the costs of such plans are subject to fluctuating and unpredictable variables. Actuarial decisions concerning fixed annuities are based on fairly stable data, and vesting is appropriate. In contrast, medical insurance must take account of inflation, changes in medical practice and technology, and increases in the cost of treatment independent of inflation. These unstable variables prevent accurate prediction of future needs and costs.[]

We find the state’s historical argument unpersuasive. The term “accrued benefits” is used in article XII, section 7 without limitation, suggesting that whatever benefits might be provided by state retirement systems were meant to be covered. Nothing in the text of article XII, section 7, nor in the history of the Constitutional Convention, suggests the founders intended to limit “accrued benefits” to the particular types of benefit being provided by territorial retirement systems at the time of ratification of the constitution.

Our case law suggests that “accrued benefits” should be defined broadly. In Hammond v. Hoffbeck we held that death benefits payable to the beneficiaries of retirees were encompassed. We stated:

The fact that part of an employee’s benefit package is, effectively, a life insurance policy, the proceeds of which will never be received by the employee, does not make that whole package any less an element of the consideration that the state contracts to tender in exchange for services rendered by the employee[]

To paraphrase the above language, medical insurance is also part of an employee’s benefit package and the whole package is an element of the consideration that the state contracts to tender in exchange for services rendered by the employee. Similarly, in Sheffield v. Alaska Public Employees Association, Inc., we referred to protected rights and benefits as a “whole complex of provisions.” In Municipality of Anchorage v. Gentile one question was whether retirement medical benefits negotiated between the municipality and a union were intended to be vested. Evidence indicated that the parties intended the negotiated benefits to be the same level and type of medical benefits received under PERS. We reasoned that since “PERS benefits are vested, it is fairly infera-ble that the parties also intended the [negotiated] benefits to vest.”

We conclude that the term “accrued benefits” is not limited to just the benefits that were provided to public employees at the time of ratification of the constitution. Instead, the term includes all retirement benefits that make up the retirement benefit package that becomes part of the contract of employment when the public employee is hired, including health insurance benefits.

With respect to the state’s argument that practical considerations should lead to a narrow construction excluding health benefits from constitutional protection, we acknowledge that medical costs are rapidly rising, making health insurance increasingly difficult to provide. But we do not believe that this fact is of sufficient weight to change the meaning of the plain language of article XII, section 7.

C. Article XII, Section 7 Does Not Merely Protect Against the Dimin-ishment of Premium Payments Made on Behalf of Retirees.

The state argues that “[r]etirees should be limited to whatever the dollar contribution in force at the time of his/her retirement can purchase.” The state’s argument, in other words, is that the accrued benefit that is constitutionally protected is the highest monthly premium paid by the public employer during the employee’s employment, rather than the coverage provided. The state cites no authority in support of this argument, but offers practical reasons:

The principal policy consideration is the ever-increasing cost of health care, which over the years has risen at a rate far greater than the rate of inflation.
... [I]t is obvious that a requirement that the retirement systems maintain the current level of services — or a requirement that cost-saving changes to the current plan be balanced by enhancements of equal cost — has the potential to put severe strains on the systems, jeopardizing their ability to pay any benefits.

The retirees argue that the plain language of article XII, section 7 is contrary to the state’s position. They also contend that the representations made in employee handbooks over the years conflict with the state’s current position.

We believe that the retirees have the better of this argument. The natural and ordinary meaning of “benefits” in a health insurance context refers to the coverage provided rather than the cost of the insurance. Further, the various employee publications promise coverage, not merely payment of a particular premium.

The state’s argument that the pension system may at some point be threatened by increasing costs of health care is a serious one. Again, however, we do not believe that this argument is sufficient to change the meaning of the constitutional language in question.

D. Whether Health Insurance Benefits Have on Balance Been Diminished or Impaired Must Be Measured from a Group Rather than an Individual Standpoint.

As already noted, in Hammond v. Hoff-beck we held that the prohibition on dimin-ishment or impairment of retirement benefits does not mean that retirement benefits are unchangeable. Instead, benefits can be modified so long as the modifications are reasonable, and one condition of reasonableness is that disadvantageous changes must be offset by comparable new beneficial changes.

In Hoffbeck we held that determinations of whether detrimental and beneficial changes are sufficiently in balance should be made on a member-by-member basis, rather than collectively. The state challenges the application of an individualized approach in the context of health insurance, arguing that such an approach is unworkable:

With a health insurance plan, it makes no sense to balance advantages and disadvantages to an individual at a particular moment in time, because one never knows what one’s health will be from one moment to the next.... The retirees’ approach as set out in affidavits is that if a member isn’t presently using an offered benefit, that benefit cannot be considered an enhancement of the plan, and can’t offset a disadvantage. This is anathema to the concept of major medical coverage. The purpose of a group plan is to spread risk among individuals both healthy and sick, and over the course of time, for an individual and ... family both when they are sick and when they are well.[]

The retirees do not directly respond to the state’s argument that taking an individualized approach to balancing benefits and detriments is unworkable. But the retirees do offer examples of a number of individuals who claim to have been harmed by the changes to the plan.

We refer to one as an example. R.D., a retired teacher, who is in his early fifties, has had his maximum co-pay amount increased from $690 to $800 per year, an increase of $110. Whereas he paid $4 each for brand name prescriptions under the old plan, he now must pay $8 and refuses the mail-order prescription service because he prefers a face-to-face relationship with his pharmacist. He is skeptical of the value of the improvements personally to him since he has never needed reimbursement for travel, feels that he is unlikely ever to reach a lifetime maximum of over $1 million, and will not qualify for Medicare (at age sixty-five) for a long time, and thus he feels that the most significant benefit of the new system, 100% of covered expenses not paid by Medicare, will be of questionable benefit to him.

R.D.’s affidavit well illustrates the state’s point. For reasons of personal choice, R.D. chooses not to avail himself of the mail-order service savings; because he does not now have a condition that requires him to travel to obtain medical treatment, he believes that the new travel benefit will be of no benefit to him; because his treatment costs are not now approaching a maximum of $1 million, he believes that the increased cap of $2 million will not be of help to him; and because he is in his early fifties he has difficulty appreciating the value of increased Medicare coordination benefit. R.D.’s judgment that the benefits of this new system are of little value to him are subjective and rooted in the present. The benefits will have value to him, for example, if he chooses to use the mail-order drug service; if the conditions of his health change so that he must travel to receive treatment or receives treatment costing more than $1 million; or if he reaches the age of sixty-five. R.D.’s opinion that the detriments of the new plan exceed its benefits to him are incapable of objective verification and review of his affidavit seems to illustrate the truth of the state’s point that using an individualized approach in evaluating changes to health insurance plans is unworkable.

In Hoffbeck we applied the individualized approach to PERS changes that reduced occupational disability benefits and occupational death benefits. As to the reduction in death benefits, there was no offsetting advantage. As to the reduction in disability benefits, the reduction was substantial, from two-thirds to two-fifths of monthly salary. The claimed offsetting advantages were that workers’ compensation awards recovered by disabled employees were previously setoff against disability benefits whereas under the new system there was no setoff. We noted, however, that more than half of the employees disabled prior to the change received no workers’ compensation benefits. Two of the affiants had suffered disabling injuries. We stated that in these cases “serious hardship has resulted from application of the new system and ... no corresponding advantages have reduced that hardship.”

Hoffbeck relied principally upon Betts v. Board of Administration of the Public Employees’ Retirement System, Betts involved a change in the formula for calculating pension payments. The plaintiff in that case was a retired state employee who was disadvantaged by the change. It was possible to determine with certainty that he received no offsetting comparable advantage. The difference was substantial since the controversy was whether his pension should be calculated on the basis of his highest salary while in office, $21,499, or on the basis of the current salary for the office in question, which was $35,000.

Hoffbeck and Betts are distinguishable from the current case. Changes to fixed streams of income such as occupational disability and pension payments can be much more readily evaluated on an individual basis to determine whether they result in a net benefit than can changes to health insurance. Pension and occupational disability payments are, for the most part, predictable and fixed, while health insurance benefits change according to the unpredictable, changing medical needs of each individual. This difference suggests that the Hoffbeck individual assessment approach may be generally inappropriate with respect to health insurance.

A Michigan circuit court opinion has recognized the special problems that would result if health insurance benefits could not be changed:

Plaintiffs seek a legal bulwark against any diminution of any portion of their current health benefits.... [T]his implies a set of health benefits frozen in time....
It is self-evident that such an outcome would produce a huge chilling effect on the State’s willingness to grant any health benefits to future retirees, because the costs of any such benefits are likely to increase over time, yet the State would have no authority to impose new cost containment measures, as it has sought to do here. And even the existing retirees would have earned a Pyrrhic victory, as their “frozen” health benefits become more obsolescent with each passing year.[]

In view of the ever changing nature of medical care, the Michigan court observed that “[t]he idea of a specific bundle of medical benefits, unchanging over time, ... is probably illusory.” Yet the court held that the state was not free to radically change the nature of health benefits that had vested in the employee group in question. The court concluded:

[T]he rights which have vested in Plaintiffs are not rights to receive exactly the same package of health benefits which were offered [at vesting] but rather a right to a reasonable health benefit package, one which is in keeping with the mainstream of such packages, as they are negotiated and implemented for similarly situated active employees over time. This — not a “frozen” package of benefits and cost containment measures — is the meaning of “hospital, medical-surgical, and sick care benefits” mandated by the Legislature. This is the “central undertaking” to which Plaintiffs could reasonably believe they have entitlement, based on the State’s promise[]

Like the Michigan circuit court, we believe that health insurance benefits must be allowed to change as health care evolves. We also believe that the economic realities of administering health care coverage would prevent making such changes if an individualized equivalency analysis were used. We reach this conclusion reluctantly in light of Hoffbeck’s holding that changes in other retirement benefits must be analyzed on an individual basis, a result that is implied by article XII, section 7, which equates retirement benefits with contract rights. Recognizing that analysis of health insurance changes from a group standpoint is necessary, but in some degree inconsistent with analogous constitutionally based precedent, we believe that it is advisable to express a number of cautions that may help to guide any equivalency analysis of health coverage changes.

At the outset, we reiterate Hoff-beck’s admonition that equivalent value must be proven by reliable evidence. Just as with an individual comparative analysis, offsetting advantages and disadvantages should be established under the group approach by solid, statistical data drawn from actual experience-including accepted actuarial sources— rather than by unsupported hypothetical projections. We also believe that, apart from the individualized approach, the other guidelines concerning equivalency analysis set out in Hoffbeck should continue to be generally applicable. Further, we reiterate that equivalent value must be proven by a comparison of benefits provided — merely comparing old and new premium costs does not establish equivalency.

Where there is an individual showing that a change results in a serious hardship that is not offset by comparable advantages, the affected individual should be allowed to retain existing coverage. This is suggested by a distinction between Hoffbeck and the present case. In Hoffbeck the detrimental change resulted in clear and specific “serious hardship” to certain individuals. By contrast, the examples that have been offered in the present case amount to detriments of at most several hundred dollars a year, without consideration of benefits. We believe that if there were an individual showing that substantial detriments were not offset by comparable advantages and that this resulted in a serious hardship, the affected individual should be protected from the change by article XII, section 7. Further, our opinion in this case should not be interpreted as approving major deletions in the types of coverage offered during an employee’s term. Coverage of a particular disease or condition should not be deleted, even though other coverage might be improved, if the deletion would result in serious hardship to those who suffer from the disease or condition in question. Moreover, if there should be changes that will predictably cause hardship to a significant number of beneficiaries who cannot at the time of the change be specifically identified, we believe that the option of providing an election to beneficiaries to retain existing coverage should be available, at least in the absence of a showing by the state of a compelling need for the change and the impracticability of providing for an election. Finally, changes that substantially reconfigure the mix of benefits to beneficiaries should be approved only upon a strong showing of justification. Unusual gaps in coverage should be avoided. Like the Michigan court in Studier, we believe that the coverage that is offered should generally be “in keeping with the mainstream” of health insurance packages offered to active public employees in terms of scope and balance.

V. CONCLUSION

The superior court’s decision granting summary judgment to the retirees is AFFIRMED insofar as it holds that health insurance benefits are benefits protected by article XII, section 7, and that it is the benefits themselves during the period of employment rather than the cost of the benefits during the same period that receive constitutional protection. The decision is REVERSED insofar as it holds that the comparative analysis of the disadvantages and compensating advantages of changes to health insurance is to be made by focusing on individuals rather than the entire group of employees. The superior court’s conclusion that the changes under review violate article XII, section 7 of the Alaska Constitution is therefore VACATED and this case is REMANDED for further proceedings consistent with this opinion.

FABE, Chief Justice, not participating.

Appendix

Discussion

Plaintiff-retireesf] class action complaints against Defendants Poe, Bell, and the State (hereinafter collectively referred to as the “State”) allege that the State modified medical benefits available to retired public employees, and that this modification diminished or impaired the benefits they received upon retirement. Plaintiffs seek declaratory and injunctive relief against the State for alleged breach of contract, breach of fiduciary duty, and violation of constitutional protection.

This matter presents to the court an unavoidable constitutional issue. Plaintiffs’ main argument is that retiree medical benefits are a vested contractual right protected by Article XII, Section 7 of the Alaska Constitution, which provides:

Membership in employee retirement systems of the State or its political subdivisions shall constitute a contractual relationship. Accrued benefits of these systems shall not be diminished or impaired.

The State argues that the medical benefits in question are not retirement benefits protected by the Constitution. The State also argues that even if such benefits are constitutionally protected, it may modify the health plans, and that the court must evaluate the plans as a whole to ensure that the modifications are balanced (i.e. favorable changes offset disadvantageous modifications). (Def.’s Mem. in Supp. Mot. for Summ. J. at 23.)

Plaintiffs argue that Hammond v. Hoffbeck, 627 P.2d 1052 (Alaska 1981), controls this matter. In Hoffbeck, several statutory amendments were made to PERS in 1976. These changes had the effect of reducing the occupational disability benefits of public safety employees from 67% to 40% of monthly salary for occupational disability, and reduced occupational death benefits from 100% to 40% of monthly salary at death.

The Alaska Supreme Court held in Hoff-beck that “accrued benefits” (as stated in the Alaska Constitution) is the same as “vested benefits.” Hoffbeck at 1057. The Hoffbeck court held that Article XII, Section 7 of the Alaska Constitution mandates that retirement benefits are regarded as an element of the bargained-for consideration given in exchange for an employee’s assumption and performance of duties as a state employee. Id. The court further held that rights in PERS vest on employment. Id.

In addition, the Hoffbeck Court ruled that any disadvantageous changes in a pension plan must be accompanied by comparable new advantages. Id. The court also ruled that the determination of whether vested benefits have been diminished must be made on a case-by-case basis. Id. at 1059.

Plaintiffs argue that the Hoffbeck Court adopted a broad view of what constitutes a vested retirement benefit. This court agrees. The Hoffbeck Court applied the “plain meaning” of Article XII, Section 7 of the Constitution and determined that the changes made to the retirement benefits were unconstitutional. This court is bound to do the same.

The State argues that the medical plans in question are not benefits, but merely health insurance. (Def.’s Mem. in Supp. Mot. for Summ. J. at 16-17, 23.) Therefore, according to the State, the issue is what services are available to members, not what services a person might need from one year to the next. The State argues that depending on one’s health, costs for an individual will vary from year to year. The State contends that major medical insurance does not equate to free medical care. Defendants assert that the court must look at the plan as a whole, balancing the availability of benefits to a member, not the actual use at the moment which they are implemented. (Def.’s Mem. in Supp. Mot. for Summ. J. at 23.)

We disagree with the State’s argument. The plain meaning of “retirement systems” includes medical benefits. Retirement systems are typically considered to be a 'package of available serviees/benefits, not simply the monthly “pension” check. In contrast, the State argues that the court should look only at the dollar amount it contributes to the retirees’ medical benefits. The State argues that since it still pays the same amount towards health benefits, the allocation of that amount among the components of the health plan is irrelevant. The State argues that it has the power to change the health plans as long as disadvantageous changes are offset by advantageous changes and the total contribution or cost to the State does not decrease. (Def.’s Mem. in Supp. Mot. for Summ. J. at 23.)

Hoffbeck does not support the State’s argument. The Hoffbeck Court applied the plain meaning of the constitutional provision. In the present matter, using the plain meaning approach, the medical plans in question are part of the constitutionally protected retirement benefits. Hoffbeck and its progeny dictate to this court that a determination of whether vested rights to retirement benefits have been diminished must be made by the affected individual on a case-by-case basis. Hoffbeck at 1059. Such an individual analysis implies that the retirement benefits protected by the Constitution are more than the overall cost of the plan. Hoffbeck’s recognition that retirement benefits are to be regarded as “an element of the bargained-for consideration given in exchange for an employee’s assumption and performance of the duties of his employment” and should “reflect! ] the realities of public employment in Alaska,” also support this conclusion. Id. at 1056-57.

Other jurisdictions have addressed the issue of the extent that retirement benefits are protected under state constitutions. The State argues that New York has addressed the issue presented before this court and relies on Lippman v. Board of Education of the Sewanhaka Central High School District, 66 N.Y.2d 313, 487 N.E.2d 897, 496 N.Y.S.2d 987 (1985). In Lippman, the New York Court of Appeals ruled that the medical benefits in question were not protected under its constitutional provision similar to Article XII, Section 7 of the Alaska Constitution.

The Lippman Court found that “health benefits” were not “retirement benefits” as that term is used in the New York Constitution, noting that the constitutional provision “protects only the benefits of membership in a retirement system; other employment conditions, though they may be protected by statute, resolution or individual collective bargaining agreement, are not within its coverage.” Id. at 317, 496 N.Y.S.2d 987, 487 N.E.2d 897. The court noted that the health insurance premium payment provision is contained not in the New York Retirement and Social Security Law, but in the State’s Civil Service Law. This is not the case in Alaska where the right to medical benefits is included in Title 39. This court declines to follow Lippman, because Lippman involved a medical plan that was separate from the state retirement system. As discussed previously, Alaska’s retirement system includes a system of retirement benefits that include more than just a pension.

The State also argues that this court be guided by how health benefits are treated under the federal Employment Retirement Income Security Act (“ERISA”). The State refers to In Re Unisys Corp. Retiree Medical Benefit “ERISA" Litigation, 58 F.3d 896 (3d Cir.1995), in which the court held that Congress did not impose automatic vesting of welfare benefit plans. Under ERISA a distinction is made between “pension plans” and “welfare plans,” and medical benefits fall into the latter category. There is no basis for such a distinction under Alaska law.

Municipality of Anchorage v. Gentile, 922 P.2d 248 (Alaska 1996)[,] is the only other ease in Alaska that addressed the issue of whether Article XII, Section 7 of the Alaska Constitution protected retiree medical benefits. In Gentile, the issue was whether the Municipality of Anchorage (“MOA”) and its public safety employees intended collective bargaining agreements to vest post-retirement medical benefits at retirement. The Gentile Court ruled that “since PERS benefits are vested,” it as fair for the trial court to infer that the parties also intended the medical benefits to vest. Id. at 258. Accordingly, Plaintiffs argue that any benefit derived from membership in PERS and TRS is a vested right, including medical benefits.

The Alaska Supreme Court decided the Gentile matter using contract law, based on explicit contracts: the collective bargaining agreements, and did not reach the constitutional issue presented here. The trial court in Gentile, however, ruled, “Post-retirement medical coverage is provided to the vast majority of MOA employees under [PERS]. Those benefits may not be diminished subsequent to retirement under Article XII Section 7 of the Alaska Constitution.” Plaintiffs argue that the Supreme Court’s opinion in Gentile implies that medical retirement benefits are constitutionally protected. While this court is not bound by the trial court’s opinion in Gentile, nor by dicta in the Supreme Court’s affirming of that case, this court does find both decisions to be significant and persuasive.

This court is bound under Hoffbeck to apply the natural meaning of “retirement systems” to include medical benefits. Accordingly, any changes in the medical plans that operate to an employee’s disadvantage must be offset by a comparable new advantage to that employee. Hoffbeck, 627 P.2d at 1057. A determination of whether vested rights to benefits have been diminished must be made on a case-by-case basis. Id. at 1059.

Defendants strongly argue that changes to the plans that benefit employees offset any changes that are disadvantageous to employees. Defendants’ argument appears similar to the hypothetical data used by the State in Hoffbeck in its attempt to justify the changes to the benefits at issue there. See 627 P.2d at 1058. The Hoffbeck Court rejected this approach noting that “ ‘the comparative analysis of disadvantages and compensating advantages must focus on the particular employee whose own vested pension rights are involved,’ ... and not on hypothetical cases.” Id., quoting Betts v. Board of Administration of the Public Employees’ Retirement System, 21 Cal.3d 859, 148 Cal.Rptr. 158, 582 P.2d 614, 617 (1978). While adjustments to the retirement system that satisfy this test may be constitutionally implemented under Hoffbeck, no such adjustments have ever been upheld by the Alaska Supreme Court under this test.

Plaintiffs have submitted affidavits from several class members demonstrating that “at least as to some individuals, the new system cannot be said to offer advantages which outweigh its obvious disadvantages.” Hoffbeck, supra, 627 P.2d at 1058. This court finds that the changes to the medical benefits system violate Article XII, Section 7 of the Alaska Constitution, at least as to those class members who are adversely affected by them.

      . Commissioner Jim Duncan was substituted for Commissioner Bob Poe on Petition for Review to the Supreme Court.

      . AS 39.35.010-.690.

      . AS 14.25.010-.220.

      . “Each person who is entitled to receive a monthly benefit from' the retirement system shall be provided with major medical insurance coverage.” Ch. 200, §§ 1-2, SLA 1975.

      . A 1975 booklet is typical. It stated: "The entire cost of this Medical Program for Retired Employees and their eligible family members will be paid by the Public Employees Retirement or Teachers' Retirement Systems.” In 1980 a handbook given to PERS members stated:
      Comprehensive major medical insurance coverage is provided for you, your spouse, and your eligible dependent children whenever you are receiving a retirement benefit, a disability benefit, or a survivor or death benefit from the system. This coverage is automatic and continues as long as you or your survivors are eligible to receive benefits from the system. There is no cost to you for this insurance.

      . According to Allison Elgee, Deputy Commissioner of the Department of Administration, cost neutrality was important not only to avoid increasing the cost of the medical plan to the retirement systems but also to the second tier employees who upon retirement before the age of 60 had to pay a full premium for the plan and upon reaching the age of 60 had to pay a half premium until reaching the age of 65.

      .In general, the changes that improved coverage included an increase in the lifetime maximum payment from $1 million to $2 million, changing travel benefits from one-way to round trip, increasing from $15 per visit to 80% payment for precertified mental health and chemical dependency treatment, providing free mail-order service for generic or brand name drugs (previous coverage was $5 for each brand name drug while generic drugs were free), and reimbursing retirees eligible for Medicare for 100% of covered expenses not paid by Medicare rather than the previous 80%. The Medicare change was by far the most important and expensive change. The reductions in benefits included increasing the deductible from $100 to $150 per year, eliminating a provision that waived the annual deductible once $50,000 in claims were paid, eliminating the lifetime co-insurance of 100% once $50,000 in claims were paid, changing co-insurance from 80% of $1,950, 90% of the next $3,000, and 100% of the remainder to co-insurance of 80% of the first $4,000 and 100% of the remainder. This resulted in a change of maximum out-of-pocket payments from $690 per year to $800 per year. In addition, if the retiree does not use the mail-order service for drugs, the cost for generic drugs increased from $0 to $4 and the cost for brand name drugs increased from $5 to $8.

      . We set out in an appendix the full text of the discussion portion of Judge Rindner’s thorough opinion.

      . Alakayak v. British Columbia Packers, Ltd., 48 P.3d 432, 447 (Alaska 2002).

      . Id.

      . Hickel v. Cowper, 874 P.2d 922, 926 (Alaska 1994).

      . Hammond v. Hoffbeck, 627 P.2d 1052, 1056 (Alaska 1981).

      . Id. at 1055.

      . Id. at 1057.

      . Id. at 1057 n. 7 (quoting County of Apache v. Southwest Lumber Mills, Inc., 92 Ariz. 323, 376 P.2d 854, 856 (1962) (en banc)); see abo Hickel, 874 P.2d at 926 (quoting Arco Alaska, Inc. v. State, 824 P.2d 708, 710 (Alaska 1992)).

      . In re Unisys Corp. Retiree Medical Benefit "ERISA" Lit., 58 F.3d 896, 901 (3d Cir.1995) (quoting Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155, 1160 (3d Cir.1990)).

      . Id. at 901 (quoting Moore v. Metropolitan Life Ins. Co., 856 F.2d 488, 492 (2d Cir.1988)).

      . 627 P.2d 1052, 1059 (Alaska 1981).

      . Id.

        . 732 P.2d 1083, 1087 (Alaska 1987) (quoting Opinion of the Justices, 364 Mass. 847, 303 N.E.2d 320, 327 (1973)).

      . 922 P.2d 248, 258 (Alaska 1996).

      . Id.

      . Our conclusion in this respect is in accordance with similar conclusions reached by numerous state courts holding that medical benefits are part of vested retirement benefits. See, e.g., Thorning v. Hollister Sch. Dist., 11 Cal.App.4th 1598, 15 Cal.Rptr.2d 91, 95 (1992) (holding that health and life insurance benefits were not dissimilar from pension benefits and could not be unilaterally terminated because they were important as inducement for continued service and as factor in decision to retire); Weiner v. County of Essex, 262 N.J.Super. 270, 620 A.2d 1071, 1079-80 (1992) (finding that post-retirement medical benefits were property rights of employees employed at the time, and thus the county could not unilaterally terminate them); Emerling v. Village of Hamburg, 255 A.D.2d 960, 680 N.Y.S.2d 37, 37-38 (N.Y.App.Div.1998) (holding that absent express reservation of rights, city could not eliminate retiree medical benefits impliedly promised in return for ten years of employment); McMinn v. City of Oklahoma City, 952 P.2d 517, 521-22 (Okla.1997) (holding that retirement benefits included package of pension, medical, and other benefits rather than pension benefits alone); State ex rel. City of Wheeling Retirees Ass’n, Inc. v. City of Wheeling, 185 W.Va. 380, 407 S.E.2d 384, 387 (1991) (construing statute to require same medical insurance benefit level for retiree as for employee); Dadisman v. Moore, 181 W.Va. 779, 384 S.E.2d 816, 829-31 (1988) (finding that state must appropriate funds for retiree health insurance benefits rather than redirect funds already present in retiree trustee accounts).
      Some states have reached different conclusions. See, e.g., Colorado Springs Fire Fighters Ass’n, Local 5 v. City of Colorado Springs, 784 P.2d 766, 770-73 (Colo.1989) (finding that city ordinance providing health benefits for retired city employees did not create vested, contractual pension right to receive benefits); Musselman v. Governor, 448 Mich. 503, 533 N.W.2d 237 (1995), modified, 450 Mich. 574, 545 N.W.2d 346, 347-48 (1996) (concluding upon rehearing that the “financial benefits” protected by state constitution did not necessarily include health benefits); Davis v. Wilson County, 70 S.W.3d 724, 727-28 (Tenn.2002) (holding that health care benefits did not vest and could be terminated absent clear intent for them to vest).

      . The 1975 booklet promises: "The entire cost of this Medical Program ... will be paid by [the systems].” And the 1980 handbook provides that "[comprehensive major medical insurance coverage is provided .... There is no cost to you for this insurance.” (Emphasis added.) See supra note 5.

      . In Hammond v. Hoffbeck we stated:
      We are not called upon to consider the problem, which has frequently arisen in other jurisdictions, presented by a pension fund that is insufficient to satisfy all employee claims brought under its provisions. We intimate no view as to the appropriate legal analysis of any legislative alteration in employee benefits systems made in response to such circumstances.
      627 P.2d at 1057 n. 11. That observation applies to this case as well.

      . Id. at 1057. We noted our general agreement with the approach taken by the California Supreme Court that recognizes that modifications may be made "for the purpose of keeping a pension system flexible to permit adjustments in accord with changing conditions and at the same time maintain the integrity of the system.” Id. (quoting Allen v. City of Long Beach, 45 Cal.2d 128, 287 P.2d 765, 767 (1955)). We also quoted Allen as follows: "To be sustained as reasonable, alterations of employees' pension rights must bear some material relation to the theory of a pension system and its successful operation, and changes in a pension plan which result in disadvantage to employees should be accompanied by comparable new advantages.” Hoffbeck, 627 P.2d at 1057. In addition, we quoted another California case to the effect that "the offsetting improvement must also 'relate generally to the benefit that has been diminished.’ " Id. (quoting Betts v. Bd. of Admin. of the Pub. Employees' Ret. Sys., 21 Cal.3d 859, 148 Cal.Rptr. 158, 582 P.2d 614, 617-18 (1978)).

      . Id.

      . Guy Bell, the Director of the Division of Retirement and Benefits, and as such the administrator of PERS and TRS, filed an affidavit in support of this aspect of the state’s position. Mr. Bell affied:
      To my knowledge, no reasonable analysis of medical costs can be done on an individual by individual basis in the manner in which changes in individual retiree pension benefits can be calculated. The only realistic approach is to determine the total cost and benefit of the changes, as was done by the division and its professional consultants.

      .Review of the other affidavits submitted by the retirees similarly show the speculative and subjective nature of the affiants' dismissive regard for the positive changes. For example, C.E. affies that the coordination of benefits with Medicare does not benefit her because the complexity of the system causes some medical providers to simply bill retirees rather than determining which insurance provider should pay. She also prefers her local pharmacy over the mail-order program for prescription drugs and thus does not derive any benefit from this change. C.E. further doubts she will ever exceed $1 million in benefits in her lifetime, rendering that benefit worthless to her. Finally, C.E. complains that the change from one-way to round-trip travel reimbursement provides no enhancement to her benefits because she lives in a city where professional medical treatment is available.

      . 627 P.2d at 1059.

      . Id. at 1058.

      . Id.

      . Id.

      . Id.

      . 21 Cal.3d 859, 148 Cal.Rptr. 158, 582 P.2d 614(1978).

      . Id. at 616.

      . Id.

      . Studier v. Michigan Pub. Sch. Employees Ret. Bd., File 00-92435-AZ, Circuit Court for Ingham County, Michigan, pp. 17-18 (Order of 2/21/01).

      . Id. at 19

      . Id. at 20.

      . Hoffbeck, 627 P.2d at 1058.

      . See supra note 26.

      . See the discussion in part IV.C, supra, at 11-12.

      . 627 P.2d at 1058.

      . See State ex. rel. Hammond v. Allen, et al., 625 P.2d 844 (Alaska 1981) (finding that the Alaska Constitution protected repealed retirement system program); Sheffield v. Alaska Public Employees’ Association, Inc., 732 P.2d 1083 (Alaska 1987) (finding that adoption of new actuarial table for early retirement benefits was unconstitutional and applied Hoffbeck’s diminution of benefits on a case-by-case basis); Municipality of Anchorage v. Gallion, 944 P.2d 436 (Alaska 1997) (prohibiting joinder of weaker retirement plan with existing plans); and Flisock v. State of Alaska, 818 P.2d 640 (Alaska 1991) (holding that retirement benefits vest upon enrollment into the retirement system).

      . See Betts v. Board of Administration of the Public Employees’ Retirement System, 21 Cal.3d 859, 582 P.2d 614, 148 Cal.Rptr. 158 (1978) (California Supreme Court ruling that "limited vesting” approach allows reasonable modification of the employee's vested pension rights); Musselman v. Governor, 450 Mich. 574, 545 N.W.2d 346 (1996) (Michigan Supreme Court divided whether health benefits fall within the protection of the state constitution); and Lippman v. Board of Education of the Sewanhaka Central High School District, 66 N.Y.2d 313, 487 N.E.2d 897, 496 N.Y.S.2d 987 (1985) (New York Court of Appeals finding that health benefits independently funded are not protected within state constitution).

      . Thus for example, disability benefits are considered to be part of a welfare plan under ERISA and thus not subject to vesting. 58 F.3d at 901. Hoffbeck, however, specifically concerned a reduction in disability benefits.

      . See Municipality of Anchorage v. Gentile, 922 P.2d 248 (Alaska 1996) (Note 13 states, "The trial court held that by diminishing the medical benefits, MOA violated article XII, section 7 of the Alaska Constitution. Because the class members' contract claim fully resolves the question of whether the medical benefits vested when the covered employees retired, it is unnecessary to consider claimants’ constitutional claim.”).

      . John M. Gentile, et al. v. Municipality of Anchorage, Case No. 3AN-92-9377 CI (Superior Court June 25, 1993).

      . See Hoffbeck, supra, and cases cited in footnote 3, supra.

      . See Aff. [E.P.S.], Ex. 10; Aff. [R.J.D.], Ex. 11; Aff. CT.S.l Ex. 12; Aff. [C.E.], Ex. 13; Aff. [B.D.], Ex. 15; and Aff. [S.T.], Ex. 16., attached as exhibits to Pis.’ Mem. in Supp. Mot. for Summ. J.


source: Caselaw Access Project

author: FABE, Chief Justice.

license: Public Domain

text:
    KODIAK ISLAND BOROUGH and Judith A. Nielsen, Clerk, Appellants, v. Edward MAHONEY, Appellee.
    No. S-10606.
    Supreme Court of Alaska.
    June 20, 2003.
    Rehearing Denied July 7, 2003.

      C. Walter Ebell and Walter W. Mason, Jamin, Ebell, Schmitt & Mason, Anchorage, for Appellants.
    Kenneth P. Jacobus, Kenneth P. Jacobus, P.C., Anchorage, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

FABE, Chief Justice.

I. INTRODUCTION

Edward Mahoney, a Kodiak Island Borough resident who proposed a municipal term limits ballot initiative, sought declaratory relief against the municipal clerk who refused to certify the initiative. This appeal raises the questions whether a municipal clerk may refuse to certify a proposed initiative on constitutional grounds and whether that clerk may refuse to make technical corrections to a proposed initiative that is technically flawed. We conclude that a clerk should certify an initiative even if it contains a proposal that raises constitutional questions. We also conclude, and the parties agree, that the best way for a clerk to handle a technically deficient initiative is to point out the needed correction and require the proposing citizen to resubmit a corrected version. Finally, because we do not hear substantive challenges to initiatives until the voters pass them, we decline to address the constitutionality of the term-limits initiative proposed by Mahoney.

II. FACTS AND PROCEEDINGS

On May 17, 2001, Edward Mahoney filed with Judith A. Nielsen, the Kodiak Island Borough Clerk, an application for an initiative petition proposing mayoral term limits. Mahoney sought to place the following ordinance before the voters: “This initiative proposes a ballot measure which if passed by [the] voters “would limit the Borough Mayor to serving no more than two (2) consecutive elected terms.’ ”

Nielsen refused to certify the application “on the basis that [the ordinance] would not be enforceable as a matter of law.” Nielsen based this conclusion on the Borough attorney’s legal opinion that the proposed initiative “limits the ability of a citizen to run for office [ ] and ... limits the right of Borough residents to vote for the candidate of their choice.” Mahoney filed suit in the superior court and sought an injunction requiring Nielsen to prepare the petition and place it on the ballot. The superior court granted Mahoney summary judgment and declaratory relief, ordering the clerk to accept the initiative petition. The Borough now appeals.

The Borough defends the clerk’s decision on two grounds, arguing first that a clerk may not certify an application for an initiative petition unless she can conclude unequivocally that the proposed ordinance will be enforceable as a matter of law, and arguing second that the clerk appropriately rejected the proposed initiative because it is “meaningless ... [and] a nullity as written.” The Borough also contends that even if the clerk should have certified the application, we should reverse the superior court’s order that the initiative be submitted to the voters because the initiative’s substantive proposal of mayoral term limits is unconstitutional.

III.STANDARD OF REVIEW

We review grants of summary judgment de novo, exercising our independent judgment to “determine whether the parties genuinely dispute any material facts and, if not, whether the undisputed facts entitle the moving party to judgment as a matter of law.”

This case involves issues of statutory interpretation. Statutory interpretation is an issue of law. In determining legal issues, we exercise our “independent judgment, adopting] the rule of law that is most persuasive in light of precedent, reason, and policy.” Furthermore, when reviewing initiative challenges, we liberally construe constitutional and statutory provisions that apply to the initiative process.

IY. DISCUSSION

The Borough raises two arguments in defense of the clerk’s refusal to certify the initiative petition. First, it argues that a clerk may not certify an application for an initiative petition unless she can conclude unequivocally that the proposed ordinance will be enforceable as a matter of law. Second, it maintains that the proposed initiative may not be submitted to the voters because it is “meaningless ... [and] a nullity as written.”

The Borough contends that the municipal initiative statute, AS 29.26.110, requires a clerk to conclude with certainty that the substantive proposal of an initiative is constitutional before she certifies it. It contends that “[t]he statute does not permit [the clerk] to certify questionable matters that would be subject to challenge only after being adopted by the voters.” The Borough bases its argument on AS 29.26.110(a), which provides:

[T]he clerk shall certify the application if the clerk finds that it is in proper form and, for an initiative petition, that the matter
(1) is not restricted by AS 29.26.100;
(2) includes only a single subject;
(3) relates to a legislative rather than to an administrative matter; and
(4) would be enforceable as a matter of law.

According to the Borough, “[bjecause there is no controlling authority stating that term limits are constitutional in Alaska, Ms. Nielsen could not affirmatively conclude that the matter proposed by Mr. Mahoney would be enforceable as a matter of law.”

This is the first time that we have been asked to interpret AS 29.26.110(a)(4). Because citizens may submit initiatives proposing ordinances whose potential constitutional issues have not yet been reviewed or resolved, and because courts must read initiative statutes liberally, we reject the Borough’s reading and interpret AS 29.26.110(a)(4) to mean that clerks should only deny initiative petitions that violate the constitutional and statutory rules regulating initiatives or that propose ordinances for which controlling authority precludes enforcement as a matter of law.

Prior to setting forth our rationale for declining to follow the.Borough’s reading of AS 29.26.110(a)(4), we first lay out the role and procedural structure of initiatives and explain how AS 29.26.110(a)(4) creates confusion in this structure. In an attempt to foster direct democratic participation, the Alaska Constitution and certain Alaska statutes allow for voter initiatives. These initiatives appear on the ballot when a citizen submits an initiative with a certain number of signatures to either a municipal clerk or to the lieutenant governor, depending on whether the initiative is local or state-wide. Prior to placing the initiative petition on the ballot, the clerk or lieutenant governor certifies the initiative petition after making sure that it does not run afoul of the constitutional and statutory provisions regulating initiatives. Prior to the election, courts will review only the question whether an initiative meets the constitutional and statutory provisions regulating initiatives. Courts will not review the constitutionality of the substantive initiative proposal until and unless the voters pass the ordinance. But AS 29.26.110(a)(4) prevents a clerk from certifying an initiative that proposes an unenforceable ordinance. The Borough argues that a clerk, in order to decide whether an ordinance is enforceable, must first determine the constitutionality of the substantive initiative proposal prior to the vote on the initiative.

We have implicitly rejected the Borough’s contention that a clerk may not certify an issue that could later be subject to constitutional challenge. In Brooks v. Wright, we distinguished between pre-election and post-election reviews of petitions. We clarified that pre-election review is limited to determining “whether [the initiative] complies with the particular constitutional and statutory provisions regulating initiatives”; whereas, “[g]enerai contentions that the provisions of an initiative are unconstitutional are justiciable only after the initiative has been enacted by the electorate.” The Borough’s argument that citizens may not propose an initiative raising any constitutional issues of first impression contradicts Brooks’s implicit ruling that initiatives containing unresolved constitutional issues should go to the electorate.

Even without the Brooks decision, the Borough’s argument fails. The Borough argues that AS 29.26.110(a)(4)’s plain meaning requires the court to conclude that clerks may only certify initiatives with clearly constitutional propositions and, as a result, may not certify initiatives that contain constitutional issues of first impression within them. Yet while the statutory language requires the clerk, in certifying an initiative, to find that the initiative “would be enforceable as a matter of law,” it does not suggest that the clerk should reject proposals that raise constitutional questions that have never been addressed.

In deciding how to read the statute, Superior Court Judge Morgan Christen rejected the Borough’s argument. Her reasoning is convincing:

It is not the Clerk’s duty to reject every petition that may raise a constitutional issue, unless the Alaska Supreme Court has already decided the constitutional issue in a manner favorable to the proposed initiative. To do so would effectively be a decision by the Clerk that a proposal is unconstitutional merely because no authority exists expressly declaring it constitutional. If this were permitted, every initiative raising an issue of first impression would be defeated before reaching the voters.

(Citation omitted.)

As Judge Christen recognized, the Borough’s interpretation “would deprive the voters of access to the initiative process for all issues of first impression, and cannot be the correct result.” The Alaska Constitution expressly allows for expansive direct democracy through initiatives: “Unless clearly inapplicable, the law-making powers assigned to the legislature may be exercised by the people through the initiative[.]” Because the Alaska Constitution preserves the people’s power to propose and enact laws through initiatives, we have repeatedly held that courts must give statutory and constitutional regulations of initiatives liberal, broad readings. This further dissuades us from adopting the Borough’s narrow reading of AS 29.26.110(a)(4).

The presumption of constitutionality that we apply to all duly enacted rules and laws influences our reading that AS 29.26.110(a)(4) only prevents clerks from certifying clearly unconstitutional ordinances. We have stated that “there is a presumption of constitutionality which attaches to [statutes and rules].” It basically follows from this presumption that a clerk must presume an initiative to be constitutional absent clear authority establishing its invalidity.

We read the clerk’s power to declare an initiative proposal unconstitutional as being somewhat analogous to the power of a state executive agency to declare a state statute unconstitutional. In both cases it is the courts, not the clerk or the executive, that are primarily responsible for constitutional adjudication. Yet in order to avoid a waste of resources and needless litigation it is right that the latter should have the power to refuse to give life to proposals or laws that are clearly unconstitutional. In the case of executive agencies we have held that they have authority to “abrogate a statute which is clearly unconstitutional under a United States Supreme Court decision dealing with a similar law, without having to wait for another court decision specifically declaring the statute unconstitutional.” Similarly, we believe that a municipal clerk should have the authority to reject an initiative proposal under AS 29.26.110(a)(4) if the proposal is clearly unconstitutional.

Finally, comparison to 42 U.S.C. § 1983 cases informs our conclusion that a municipal clerk pursuant to AS 29.26.110(a)(4) may only reject on substantive grounds a pre-election petition that proposes a clearly unconstitutional ordinance. In a § 1983 suit, a plaintiff asserts a private right of action against a defendant who, acting under color of state authority, allegedly deprived plaintiff of constitutional rights. However, a § 1983 defendant may assert an affirmative defense that he was not depriving plaintiff of a clearly established constitutional right. While in theory § 1983 protects all constitutional rights, courts in practice have read § 1983 as only unconditionally protecting clearly established constitutional rights. Similarly, we interpret AS 29.26.110(a)(4) as precluding only clearly unconstitutional proposals.

For the reasons stated above, we hold that a clerk, in determining whether an initiative “would be enforceable as a matter of law,” should only reject a petition that violates any of the liberally construed statutory or constitutional restrictions on initiatives or that proposes a substantive ordinance where controlling authority establishes its unconstitutionality.

The Borough’s second argument in defense of the clerk’s decision to reject the proposed initiative is that the clerk may not change the wording of the initiative, which “as drafted ... is meaningless.” The initiative as proposed states: “This initiative proposes a ballot measure which if passed by [the] voters, ‘would limit the Borough Mayor to serving more than two (2) consecutive elected terms.’ ” (Emphasis added.) Because the initiative proposes a ballot measure rather than an ordinance, the initiative, as written, would require people to vote to determine whether there should be a vote.

Mahoney concedes that the wording is flawed but argues that the clerk could have corrected the language since the intent of the initiative is clear. The Borough responds that AS 29.26.120(a)(2) prevents the clerk from changing the initiative language and that the initiative language as written creates a superfluous initiative. The superior court agreed with Mahoney.

But the clerk did not reject the initiative on the ground that its wording was flawed and thus cannot now rely on this argument to justify her decision. Moreover, at oral argument, the parties agreed that the best way to handle a technically flawed initiative would be for the clerk to point out the deficiency and inform the proposing citizen what was necessary to correct it, allowing resubmission of the corrected initiative. The parties clarified at oral argument that the term limits initiative has yet to appear on the ballot; therefore, it is not too late to follow this agreed-upon procedure. Consequently, we need not decide whether it would have been proper for the clerk to make the technical correction on Mahoney’s petition.

Finally, because general contentions about an initiative’s constitutionality are jus-ticiable only after the initiative has been passed by the electorate, we need not decide at this time whether mayoral term limits are constitutional.

Y. CONCLUSION

Because a clerk may certify an initiative that contains a proposal that is subject to a constitutional challenge, because the parties agree that the best way to handle the technically deficient initiative in this case is to have Mahoney resubmit the initiative, and because we do not hear substantive challenges to initiatives until the voters pass them, we AFFIRM the superior court’s decision that the clerk should not have rejected the ballot initiative on constitutional grounds, but we VACATE its determination that the clerk could change the initiative’s language. We REMAND for proceedings consistent with this opinion.

      . At oral argument, the parties indicated that the initiative has yet to appear on the ballot.

      . State, Dep't of Health & Soc. Servs. v. Planned Parenthood of Alaska, Inc., 28 P.3d 904, 908 (Alaska 2001) (internal quotations omitted).

      . D.H. Blattner & Sons, Inc. v. N.M. Rothschild & Sons, Ltd., 55 P.3d 37, 41 (Alaska 2002).

      . Robles v. Shoreside Petroleum, Inc., 29 P.3d 838, 841 (Alaska 2001) (internal quotations omitted).

      . Brooks v. Wright, 971 P.2d 1025, 1027 (Alaska 1999); Interior Taxpayers Ass'n, Inc. v. Fairbanks N. Star Borough, 742 P.2d 781, 782 (Alaska 1987).

      . Alaska Const, art. XI & XII, § 11, AS 29.26.100-.190, and AS 15.45.010-.245 deal with initiatives.

      . AS 29.26.110-.140; AS 15.45.030 & .080.

      . AS 29.26.140; AS 15.45.040 & .080.

      . Brooks v. Wright, 971 P.2d 1025, 1027 (Alaska 1999).

      . 971 P.2d 1025, 1027 (Alaska 1999).

      . Id. (internal quotations omitted).

      . Id. (internal quotations omitted).

      . AS 29.26.110(a)(4). The Borough also argues that the clerk must deny certification "unless it is clear that the ordinance would be enforceable as a matter of law....” We believe that the legislature intended "enforceable as a matter of law” to mean “legally enforceable” rather than "clearly enforceable.”

      . Alaska Const, art. XII, § 11; Yute Air Alaska, Inc. v. McAlpine, 698 P.2d 1173, 1181 (Alaska 1985).

      . Brooks v. Wright, 971 P.2d 1025, 1027 (Alaska 1999); Yute Air Alaska, Inc. v. McAlpine, 698 P.2d 1173, 1181 (Alaska 1985); Municipality of Anchorage v. Frohne, 568 P.2d 3, 8 (Alaska 1977).

      . DeNardo v. ABC Inc. RVS Motorhomes, 51 P.3d 919, 928 (Alaska 2002) (quoting A. Fred Miller Attorneys at Law v. Purvis, 921 P.2d 610, 618 (Alaska 1996)).

      . O'Callaghan v. State, Director of Elections, 6 P.3d 728, 730 (Alaska 2000) (citing O’Callaghan v. Coghill, 888 P.2d 1302, 1304 (Alaska 1995)).

      . 42 U.S.C.A. § 1983 (1994).

      . Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975); David J. Oli-veiri, Annotation, Defense of Good Faith in Action for Damages Against Law Enforcement Official Under 42 USCS § 1983, Providing for Liability of Person Who, Under Color of Law, Subjects Another to Deprivation of Rights, 61 A.L.R. Fed. 7, 22 (1983).

      . A court may still hold a § 1983 defendant liable if he subjectively believes that he is violating a constitutional right even if it is not a clearly established one. Oliveiri, supra note 19, at 17 (affirmative defense of good faith to a § 1983 claim has subjective and objective elements).

      . Because the language of AS 29.26.110(a)(4) requires the rejection of initiative petitions that would be unenforceable as a matter of law, we also believe that a clerk must reject an initiative that proposes an ordinance which is merely aspirational or which otherwise lacks the attributes of an enforceable law. For example, the proposal must be comprehensible and concrete enough to be capable of enforcement.

      . For example, a clerk should reject an initiative that is properly submitted procedurally but that proposes an ordinance mandating local school segregation based on race. See Brown v. Board of Educ. of Topeka, Kan., 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (ruling that racial school segregation is unconstitutional).

      . However, we note that the Borough makes a strong argument that it would have been inappropriate for the clerk to revise the wording of the proposed initiatives given AS 29.26.120’s statement that a clerk should submit to the voters the proposed ordinance "as submitted by the sponsors.”

      . Brooks v. Wright, 971 P.2d 1025, 1027 (Alaska 1999).


text:
    Linda BRADBURY, Appellant, v. CHUGACH ELECTRIC ASSOCIATION and Fremont Insurance Company, Appellees.
    No. S-10532.
    Supreme Court of Alaska.
    June 20, 2003.
    Rehearing Denied July 2, 2003.

      Michael J. Jensen, Law Offices of Michael J. Jensen, Anchorage, for Appellant.
    Patricia L. Zobel and John D. Harjehau-sen, DeLisio, Moran, Geraghty & Zobel, P.C., Anchorage, for Appellees.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

FABE, Chief Justice.

I. INTRODUCTION

Linda Bradbury died while working for Chugach Electric Association, Inc. when a cyst in her liver ruptured causing a deadly anaphylactic reaction. Dennis Bradbury, her husband, appeals the Alaska Workers’ Compensation Board’s denial of benefits related to his wife’s death. Because the Board’s decision is supported by substantial evidence, we affirm it.

II. FACTS AND PROCEEDINGS

A. Factual History

Linda Bradbury died on June 18, 1999, while working as a bull cook for Chugach Electric Association, Inc. in Beluga. According to the autopsy, Bradbury died from ana-phylactic shock when a hydatid cyst in her liver ruptured. When the cyst ruptured, its contents spilled into her abdomen and precipitated a massive allergic reaction. Hyda-tid cysts are parasitic infections. Dr. Franc Fallieo, deputy medical examiner for the state, noted on Bradbury’s death certificate that during the autopsy he found “[n]o evidence of significant traumatic injury.”

Bradbury first experienced abdominal pain, which led to the discovery of her cyst, in early March 1999. She went to the Family Health Center in Palmer because of the pain and returned a few days later for an abdominal ultrasound. Dr. Gerald Phillips, who performed the ultrasound, reported that the test revealed a large cyst in the left lobe of her liver. On March 12,1999, a practitioner at the Family Health Center noted in Bradbury’s records that a surgeon said the cyst was “not a problem” and that he would watch it for any changes.

A few months later, Bradbury began to experience pain in the area of her cyst. In June 1999 she told a nurse practitioner that abdominal pain near her liver cyst had awakened her from sleep. The next day Bradbury went to the Health Center because of the pain. Other than abdominal pain, the nurse practitioner noted that Bradbury’s vital signs were stable and advised her to return to the Health Center if she had a fever. Bradbury made an appointment for a CT scan of her abdomen for Wednesday, June 23, 1999, the day after she would have returned home from her next work shift.

Linda Bradbury had worked for Chugach Electric since April 1997. She worked seven 12-hour days straight followed by seven days off. She flew to Beluga on Wednesday mornings and left on Tuesday nights. On Wednesday, June 16, two days before her death, Bradbury flew to Beluga to begin her week-long work shift.

B. Procedural History

On February 7, 2000, Dennis Bradbury filed a workers’ compensation claim for death benefits and expenses stemming from his wife’s death. On February 23, 2000, Chu-gach Electric challenged his claim as not work-related. The Alaska Workers’ Compensation Board heard the claim in September 2000.

1. Testimony presented to the Board

The Board first heard testimony from Dennis Bradbury, who noted that his wife complained of stomach pains about two weeks before her death. He testified that he spoke with her after she returned to work on Wednesday, June 16, and that she told him she had not slept well the night before. He described a note his wife had written that Wednesday, which was found among her personal belongings after she died. According to Dennis Bradbury, his wife indicated in the note that she was in so much pain she could not sleep that night. This note was admitted into evidence.

Robert Klemke, the head cook who worked on Linda Bradbury’s shift, described to the Board some of Bradbury’s duties as a bull cook. The testimony that Klemke and others gave concerning Bradbury’s work duties and how she performed them is significant because Dennis Bradbury’s theory was that the physical labor his wife performed inflicted trauma upon her abdomen, resulting in the cyst’s rupture. Klemke explained that a bull cook is responsible for cold food preparation and basic cleanup. Klemke testified that when Bradbury started work at 6:30 a.m., she first prepared breakfast by putting out fruit and by stocking milk, juice, and water. Klemke added that in addition to breakfast preparation, Bradbury did some general cleaning including washing baking pans that were soaking in the sink. He noted that because of Bradbury’s size, five feet two inches, she had to lean over the sink to reach the pans.

Klemke testified that after Bradbury finished in the dining area, she loaded ice, milk, fruit, juice, and water into a truck to drive to the break rooms. She would then stock the break rooms with those items. Klemke testified that he had seen her bump into things occasionally and that he witnessed Bradbury support objects on her hip and abdomen.

In addition to Klemke, Claudia McLean testified in support of Bradbury’s claim. McLean worked as a bull cook on the shift opposite Linda Bradbury. Because McLean and Bradbury generally shared the same duties, McLean prepared a list of morning duties Bradbury allegedly would have performed on the morning of her death.

Two doctors, Dr. Gerald Roberts and Dr. David Anaise, testified in support of Bradbury’s claim. Dr. Roberts is a gastroenterol-ogist and internist and has never treated a patient with a hydatid cyst. He indicated that “the cause of the rupture was most probably related to the work she was carrying out at her job as a bull cook, particularly in the two hours prior to her death on June 18, 1999.” Dr. Roberts based his opinion upon Bradbury’s medical records and medical articles about hydatid cysts. He specified that minor trauma, and even leaning over a deep sink, could conceivably cause a cyst to rupture. He expressed the opinion that spontaneous rupture of hydatid cysts is relatively rare and noted that Bradbury did fairly strong physical labor. He concluded that the cyst ruptured because something must have struck Bradbury’s abdomen while she was working.

Dr. David Anaise is a retired surgeon who now practices law. He has never treated a patient with a hydatid cyst. He testified that Bradbury’s work activities in the two hours before her death would have put enough pressure on her abdomen to rupture the cyst. Dr. Anaise admitted that the only cases of traumatic rupture he had read about in the medical literature involved a blunt trauma or blow to the abdomen.

Two physicians, Dr. Kenneth Flora and Dr. David Nelson, testified on behalf of Chu-gach Electric. Dr. Flora is a hepatologist whose subspecialty is the diagnosis and treatment of chronic liver disease. He is also a professor of medicine. In his practice, he has seen approximately ten patients with hy-datid cysts. Dr. Flora gave the opinion that the cyst ruptured spontaneously and that Bradbury’s work activities were not a substantial factor in her death. He eliminated lifting heavy objects as a cause of her cyst’s rupture, explaining that from his reading of the literature, he believes that it requires significant force against the liver to rupture a cyst. He concluded that her cyst might have ruptured regardless of whether she was at work.

Dr. Nelson is a professor of medicine and a hepatologist who has treated patients with hydatid cysts. He does not restrict his patients from lifting or working because he does not believe that these activities rupture cysts. Dr. Nelson explained that hydatid cysts can rupture spontaneously or from trauma, usually a blunt rapid blow, to the abdomen. Dr. Nelson indicated that Bradbury’s cyst probably ruptured spontaneously.

2. The Board’s decision and subsequent proceedings

The Board issued its decision on October 13,2000.- The Board considered three issues: (1) whether Linda Bradbury’s work activities were a substantial factor in her death; (2) whether it would award death benefits; and (3) whether it would award attorney’s fees. In a 2-1 decision, the Board denied Bradbury’s claims and dismissed her case.

Dennis Bradbury petitioned for reconsideration of the Board’s decision in October 2000. The Board denied and dismissed the petition. Bradbury then appealed to the superior court, which, acting as an intermediate court of appeal, affirmed the Board’s decision. Dennis Bradbury appeals this decision.

III. STANDARD OF REVIEW

When the superior court acts as an intermediate court of appeals, we independently review the merits of the administrative decision. “We review the administrative agency’s findings to determine whether they are supported by substantial evidence.” “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” We do not determine witness credibility; the Board makes those determinations exclusively. Therefore, even when conflicting evidence exists, we uphold the Board’s decision if substantial evidence supports it.

IV. DISCUSSION

A. Dennis Bradbury Is Not Entitled to Workers’ Compensation Benefits for His Wife’s Death.

1. Burden of proof

The Alaska Workers’ Compensation Act creates a presumption that an employee’s claims are compensable. “Applying this presumption involves a three-step analysis.” First, the employee must establish a link between her injury and her employment. In this case, the Board found that Dennis Bradbury introduced sufficient evidence to establish a link between his wife’s death and her work. Chugaeh Electric does not challenge the Board’s finding that Dennis Bradbury satisfied his burden of establishing this preliminary link.

Next, we ask whether the employer rebutted the presumption with substantial evidence. The employer’s substantial evidence must either “(1) provide[ ] an alternative explanation [for the injury] which, if accepted, would exclude work related factors as a substantial cause of the disability; or (2) directly eliminate[ ] any reasonable possibility that employment was a factor in causing the disability.” The burden of production at this stage shifts to Chugach Electric, but not the burden of persuasion; thus, we examine Chugach Electric’s evidence in isolation from Dennis Bradbury’s evidence to the contrary. We have held that “[i]t has always been possible to rebut the presumption of compensability by presenting a qualified expert who testifies that, in his or her opinion, the claimant’s work was probably not a substantial cause of the disability.” The Board found that Chugach Electric satisfied this burden by presenting the testimony of Dr. Flora and Dr. Nelson, who both gave the opinion that Linda Bradbury’s cyst ruptured spontaneously and not because her work activities caused trauma to her abdomen.

Finally, after an employer rebuts the presumption that injuries are work-related, an employee can only prevail if his or her claim is proven by a preponderance of the evidence. To prove a claim by a preponderance of the evidence, the employee must induce a belief in the trier of fact that the asserted facts are probably true. The Board found that Dennis Bradbury failed to satisfy this burden because there was no direct evidence that his wife suffered trauma to her abdomen and because the circumstantial evidence that he presented was insufficient to prove his claim. Dennis Bradbury argues that the Board’s decision is not supported by substantial evidence.

2. Chugach Electric produced substantial evidence that Linda Bradbury’s work as a bull cook was not a substantial factor in her death.

a. Chugach Electric provided an alternative, non-work-related explanation for Linda Bradbury’s death, which excludes work-related factors as a substantial cause of her death.

The Board relied upon Dr. Nelson and Dr. Flora’s testimony in concluding that substantial evidence indicated that Linda Bradbury’s death was not work-related. Both doctors are medical professors and he-patologists who have seen and treated patients with hydatid cysts.

The doctors provided an alternative explanation for the rupture that was not work related. Both doctors gave the opinion that Bradbury’s cyst ruptured spontaneously and that it did not rupture because of trauma to her abdomen. Moreover, Dr. Flora and Dr. Nelson believed that the cyst was either in the process of rupturing or had ruptured by the time Bradbury arrived at work on June 18. Both doctors placed great significance on the symptoms that she experienced in the weeks prior to her death. Dr. Flora noted that Bradbury complained of abdominal pain for two weeks before her death and that during her week off, a blood test revealed a higher than normal amount of eosinophils in her blood. Dr. Flora explained that the body produces eosinophils in response to parasitic infections. The heightened level of eosino-phils in her blood suggested to Dr. Flora that Bradbury’s cyst was slowly leaking and that it did not necessarily rupture suddenly on the day that she died. Dr. Flora gave the opinion that fluid leaking from the cyst onto the liver and into the abdominal cavity caused her severe abdominal pain. He con-eluded that Linda Bradbury’s cyst ruptured spontaneously.

Dr. Nelson also focused on the severe abdominal pain Bradbury experienced before she died. Dr. Nelson explained that pain severe enough to wake someone out of sleep is a worrisome complaint to doctors because it suggests significant activity within the abdomen. He noted that Bradbury’s symptoms changed dramatically in the week before she returned to work. He linked these changes to the cyst’s rupture: “It’s well recognized that sudden onset of changed symptoms with cysts usually herald[s] cyst rupture.” He, like Dr. Flora, gave the opinion that the cyst ruptured spontaneously. A reasonable mind could accept Dr. Flora and Dr. Nelson’s testimony as adequate to support the conclusion that Bradbury’s cyst raptured spontaneously and not from work-related trauma to her abdomen.

b. Chugach Electric presented substantial evidence such that it directly eliminated any reasonable possibility that employment was a factor in causing Linda Bradbury’s death.

Dennis Bradbury argues that Dr. Flora and Dr. Nelson’s opinions do not constitute substantial evidence because their opinions did not eliminate all work-related causes of his wife’s death. Dennis Bradbury makes two points in support of this argument. First, he asserts that the experts simply did not rule out all work-related causes of his wife’s death. Dennis Bradbury points out that Dr. Flora said that he could not rale out the possibility that work activities accelerated the cyst’s degeneration toward its ultimate rapture. However, Dr. Flora also testified that it was more likely than not that work activities did not accelerate the cyst’s rupture. Because an employer “may rebut the presumption of compensability by presenting a qualified expert who testifies that, in his or her opinion, the claimant’s work was not a substantial cause of the [injury],” Dr. Flora’s testimony satisfies our standard for substantial evidence.

Dennis Bradbury further claims that because Dr. Nelson could not say with certainty how much pressure it would take to rupture the cyst, he could not rule out work-related trauma as a substantial factor in Linda Bradbury’s death. We addressed and rejected a similar argument in Norcon, Inc. v. Alaska Workers’ Compensation Board. In Nor-con, two physicians testifying for the employer gave their opinions that the employee’s heart attack while on the job was not work-related. We held that the physicians’ testimony constituted substantial evidence. Significantly, we rejected the argument that because of medical uncertainty regarding the causes of sudden cardiac death, the physicians’ opinions that the employee’s work was not a substantial factor in his death should be discounted. We concluded that this argument, if accepted, would lead to an irrebutta-ble presumption of compensability whenever an employee died of a heart attack. As in Norcon, medical uncertainty exists here. Dennis Bradbury’s lawyer asked Dr. Nelson how much pressure it would have taken to rupture the cyst. Dr. Nelson responded that there is no way to quantify the necessary amount of pressure. We have recognized that a medical professional’s testimony is not inconclusive and does not fail to exclude work-related causes of death simply because the witness does not state his or her opinion in absolute terms.

Both Dr. Flora and Dr. Nelson ruled out trauma as a possible cause of the cyst’s rupture, thereby eliminating a work-related explanation for the rupture. Dr. Nelson explained that the liver accommodates gentle pressure by moving; therefore, neither holding a heavy object against one’s chest nor leaning over a sink would rupture a cyst. Dr. Nelson also explained that the medical literature dealing with traumatic ruptures of hydatid cysts generally describes blunt, rapid trauma to the abdomen that ruptures a cyst — the type of trauma that happens during sporting events, when a player might be elbowed in the stomach. Dr. Nelson concluded that none of Bradbury’s work activities were likely to rupture a cyst. Again, this satisfies our standard for substantial evidence.

Second, Dennis Bradbury contends that Dr. Flora and Dr. Nelson did not know about all of his wife’s activities and therefore based their opinions on incomplete information about the amount of trauma she may have encountered in her job. He claims, for example, that the video reenactment of his wife’s work duties was incomplete and thus the basis of Dr. Flora and Dr. Nelson’s opinions was flawed. Dr. Flora testified, however, that unless Linda Bradbury suffered a blow to her abdomen, regular work duties would not cause sufficient trauma to rupture her cyst. Dr. Flora and Dr. Nelson’s testimony thus eliminated work as a substantial factor in Linda Bradbury’s death. Their testimony therefore constituted substantial evidence.

3. Substantial evidence supports the Board’s decision that Dennis Bradbury failed to prove by a preponderance of the evidence that Linda Bradbury’s death was work-related.

Because Chugach Electric overcame the presumption of compensability, Dennis Bradbury had to prove his claim by a preponderance of the evidence. To prove a claim by a preponderance of the evidence, the claimant must induce a belief in the trier of fact that the asserted facts are probably true. We apply the substantial evidence test to determine whether a workers’ compensation claimant has met this burden.

The Board found that Dennis Bradbury failed to prove his claim by a preponderance of the evidence. The Board found the circumstantial evidence that he introduced, coupled with the laek of direct evidence, to be insufficient to prove his claim that his wife suffered any trauma to her abdomen on the day she died. The Board concluded that Linda Bradbury’s cyst ruptured prior to her return to work and that it would have ruptured regardless of her work activities.

Dennis Bradbury argues that the Board’s decision is not supported by substantial evidence. Rather than point to evidence that he presented to support his claim, he bases his argument upon perceived flaws in Dr. Flora and Dr. Nelson’s testimony. He argues primarily that the doctors’ opinions lack scientific bases. Dennis Bradbury essentially urges us to discount Dr. Flora and Dr. Nelson’s opinions. But we do not re-weigh evidence when we review Board decisions because the Board has the sole responsibility to determine witness credibility.

A review of the testimony presented to the Board shows that substantial evidence supports the Board’s decision that Dennis Bradbury failed to prove his claim by a preponderance of the evidence. Dennis Bradbury offered circumstantial evidence of his wife’s activities on the day that she died; namely, a list of job responsibilities prepared by Claudia McLean. McLean worked the shift opposite Bradbury’s shift; thus, the parties stipulated that this list represented activities that Linda Bradbury’s job might have encompassed. However, no one actually saw Bradbury at work on that morning; therefore, her husband could not offer a witness to testify to what activities she performed. No one could testify that Bradbury performed her duties in a way that would inflict trauma upon her abdomen. The Board rejected the circumstantial evidence, concluding that to find for Dennis Bradbury they would have to speculate about what Linda Bradbury did that morning and whether it resulted in sufficient abdominal trauma to rupture her cyst.

The Board accepted Dr. Flora and Dr. Nelson’s testimony that sudden changes in pressure are required to rupture a cyst and that placing an object against a cyst is not sufficient to rupture it. Thus, the Board implicitly rejected Dr. David Anaise and Dr. Gerald Robert’s testimony to the contrary. When medical experts disagree about the cause of an employee’s injury, we have held that as a general rule “it is undeniably the province of the Board and not this court to decide who to believe and who to distrust.” The Board acted appropriately in accepting Dr. Flora and Dr. Nelson’s testimony over that of Dr. Roberts and Dr. Anaise. Because substantial evidence supported the Board’s decision that Dennis Bradbury did not prove his claim by a preponderance of the evidence, we affirm that decision.

B. The Board Engaged in Reasoned Decision-Making.

Dennis Bradbury argues that the Board failed to engage in reasoned decision-making and that this violated his due process rights. He argues primarily that the Board ignored evidence refuting Dr. Nelson and Dr. Flora’s testimony.

The Board summarized the evidence presented by each witness in its eighteen-page decision. The Board also reviewed the list of possible job activities prepared by Claudia McLean and the video reenactment of Linda Bradbury’s possible work activities. A review of the Board’s decision and of the evidence in the record shows that the Board engaged in reasoned decision-making. Dennis Bradbury’s argument to the contrary essentially asks us to re-weigh the evidence, which we will not do. The Board’s decision that the testimony of certain doctors is more persuasive than that of others is precisely the type of credibility determination that only the Board may make.

V. CONCLUSION

Because Chugach Electric produced substantial evidence that Linda Bradbury’s death was not work-related and because Dennis Bradbury failed to prove his claim by a preponderance of the evidence, we AFFIRM the Board’s denial of benefits.

      . DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000).

      . Id.

      . Id. (internal quotations omitted).

      . Id.

        .Id.

      . Temple v. Denali Princess Lodge, 21 P.3d 813, 815-16 (Alaska 2001).

      . Id. at 816.

      . Id.

      . Id.

      . DeYonge, 1 P.3d at 96.

      . Childs v. Copper Valley Elec. Ass'n, 860 P.2d 1184, 1188 n. 5 (Alaska 1993).

      . Big K Grocery v. Gibson, 836 P.2d 941, 942 (Alaska 1992).

      . Temple, 21 P.3d at 816.

      . Saxton v. Harris, 395 P.2d 71, 72 (Alaska 1964).

      . See DeYonge, 1 P.3d at 96.

      . Norcon, Inc. v. Alaska Workers' Comp. Bd., 880 P.2d 1051, 1054 (Alaska 1994) (quoting Big K Grocery, 836 P.2d at 942).

      . 880 P.2d 1051 (Alaska 1994).

      . Id. at 1054.

      . Id. at 1055.

      . Id. at 1055 n. 4

        .Id.

      . Childs v. Copper Valley Elec. Ass’n, 860 P.2d 1184, 1189 (Alaska 1993) (“The weight of [medical] testimony ... should not be too sharply discounted because of the disposition of the highly trained scientific mind to refrain from unqualified statements or opinions on such matters as causation.") (quoting Arthur Larson, The Law of Workmen’s Compensation § 80.32, at 15-834— 835 (1992)).

      . See DeYonge v. NANA/Marriott, 1 P.3d 90, 96 (Alaska 2000).

      . Norcon, 880 P.2d at 1055.

      . Saxton v. Harris, 395 P.2d 71, 72 (Alaska 1964).

      . Norcon, 880 P.2d at 1055.

      . Dennis Bradbury challenges the Board’s finding that the circumstantial evidence he presented was insufficient to prove his claim. He argues that “the best evidence of the effects of [Linda Bradbury's] work on the hydatid cyst was, in effect, circumstantial. It was her death.” He contends that once the presumption of compens-ability attached, "it was wrong of the Board to require more than circumstantial evidence” for him to prove his claim. This argument lacks merit; the Board did not require more than circumstantial evidence, it simply rejected the circumstantial evidence presented as insufficient.

      . Safeway, Inc. v. Mackey, 965 P.2d 22, 29 (Alaska 1998).

      . Id.; see also AS 23.30.122.

      . Childs v. Copper Valley Elec. Ass’n, 860 P.2d 1184, 1189 (Alaska 1993) (quoting Kessick v. Alyeska Pipeline Serv. Co., 617 P.2d 755, 758 (Alaska 1980)).

      . Safeway, Inc., 965 P.2d at 29.

      . Bolieu v. Our Lady of Compassion Care Ctr., 983 P.2d 1270, 1274 n. 11 (Alaska 1999).