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    Donald JONES and Annette Gwalthney-Jones, Appellants, v. STATE of Alaska, DEPARTMENT OF REVENUE, Appellee.
    Supreme Court No. S-16860
    Supreme Court of Alaska.
    May 24, 2019
    Mario L. Bird, Ross, Miner & Bird, P.C., Anchorage, for Appellants.
    Jonathan P. Clement, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee.
    Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
   CARNEY, Justice.

I. INTRODUCTION

A husband and wife appeal denials of their Permanent Fund Dividends (PFDs) for 2014 and 2015. The husband's 2014 PFD application was denied because he had been absent from the state for more than five years, creating a presumption of nonresidence that he was unable to rebut. The wife's application was denied because her PFD eligibility as an accompanying military spouse depended on her husband's. After the denials were affirmed by an Administrative Law Judge (ALJ), the couple appealed to the superior court.

While this appeal was pending they both applied for 2015 PFDs and were again denied. The husband's 2015 application was denied because his residency for PFD purposes was severed in the 2014 PFD proceedings and he had not reestablished it. The wife's application was again denied because of her accompanying-spouse status. They appealed the 2015 denials as well; the superior court consolidated the 2014 and 2015 cases and affirmed both denials.

The husband and wife appeal. They argue that the requirement that they be physically present in Alaska for 30 days in the five years preceding their application, pursuant to AS 43.23.008(d)(1), is unconstitutional. They also argue that we should interpret the relevant statutes and regulations in the light most favorable to them, which they claim would entitle them to both 2014 and 2015 PFDs. Finally, they argue that even if we uphold the statute as constitutional, we should nevertheless award them 2014 and 2015 PFDs through our "equitable powers."

Because neither spouse meets the residency requirements to qualify for either a 2014 or a 2015 PFD under the plain language of the statute, and because we find that the statute is constitutional, we affirm the ALJs' decisions. As our equitable powers do not extend to ignoring a valid and unambiguous statute duly enacted by the legislature, we decline to award PFDs on this ground.

II. FACTS AND PROCEEDINGS

A. Facts

Donald Jones first came to Alaska in 1998 when he was stationed at Elmendorf Air Force Base. In 2000 he married Annette Gwalthney-Jones, a long-time Alaska resident. Jones was transferred out of the state in 2001; despite numerous requests he was never reassigned to Alaska. The Joneses nonetheless maintained significant ties to the state: they registered their vehicles in Alaska, held Alaska driver's licenses, owned real property in Anchorage, and cast absentee ballots in Alaska elections. There is no dispute that since Jones's 2001 transfer both he and his wife "have intended to return to the state and to remain indefinitely." They returned permanently on November 29, 2014, shortly before Jones retired from the Air Force.

Jones was eligible for and received a PFD from 2001 to 2013. Gwalthney-Jones was eligible for and received a PFD from 1982 to 2013. Despite being largely absent from 2001 until their return to Alaska in 2014, they remained eligible for PFDs until 2013 because their absences were allowed by a special exception for military service members and their spouses under AS 43.23.008(a)(3). Following their return, they both applied for and received 2016 PFDs.

B. Proceedings

1. 2014 PFD applications and administrative proceedings

In March 2014 Jones and Gwalthney-Jones applied for 2014 PFDs. Eligibility for 2014 PFDs depended upon their qualifying as residents during 2013. In June 2013 the Alaska Legislature revised the PFD eligibility statutes and adopted AS 43.23.008(d), which states:

After an individual has been absent from the state for more than 180 days in each of the five preceding qualifying years, the department shall presume that the individual is no longer a state resident. The individual may rebut this presumption by providing clear and convincing evidence to the department that
(1) the individual was physically present in the state for at least 30 cumulative days during the past five years; and
(2) the individual is a state resident as defined in AS 43.23.295.

The legislature made this statute retroactive to January 1, 2013.

Alaska Statute 43.23.008(d) codified a Division regulation that had been in place since 1999, 15 Alaska Administrative Code (AAC) 23.163, with one key difference. The regulation had imposed the same 30 days/5 years requirement to rebut a presumption of nonresidence, but it had allowed an exception if an individual could show "that unavoidable circumstances prevented that individual from returning" for the required 30 cumulative days. The 2013 statute does not contain the "unavoidable circumstances" exception.

The Division, reading AS 43.23.008(d)(1) to eliminate any exception from the 30 days/5 years rule, denied Jones's 2014 PFD application. It is undisputed that Jones had been absent from the state for more than 180 days in each of the previous five qualifying years for the 2014 PFD, i.e., 2009-2013. It is also undisputed that he had not been physically present in Alaska for at least 30 cumulative days during the same five-year period. The Division also denied Gwalthney-Jones's 2014 application, finding that her eligibility depended on her husband remaining eligible.

The Joneses requested informal appeals of their 2014 PFD denials. They argued that their ties to Alaska proved their intent to remain Alaska residents, but they did not address the 30 days/5 years statutory language. The Division denied Jones's appeal, stating that "the current law clearly states [that] an individual who is not back for 30 days is no longer a state resident for PFD purposes." The Division also denied Gwalthney-Jones's informal appeal, finding "no provision in law" that would entitle her to a 2014 PFD when she had been "absent from Alaska for more than 180 days during 2013 accompanying an individual ineligible to receive the 2014 PFD."

The Joneses then requested formal hearings, at which they had the burden to prove that the Division had erred in denying their applications. They again emphasized their ties to Alaska; they also argued for the first time that the 30 days/5 years rule was an ex post facto law and that it conflicted with another provision in the PFD statutes. The Division argued that the 2013 statute's wording precluded it from considering "why an individual failed to meet the 30 day return requirement, as it could do [previously] under [the] regulation."

Following a hearing the ALJ issued a decision and order (2014 PFD Decision), which was adopted by the Commissioner of Revenue in March 2016. The ALJ concluded that in enacting AS 43.23.008, the legislature had "clarified its intent to make the 30-day requirement inflexible" by "striking" the unavoidable-circumstances exception. The ALJ found that the statute was thus not ambiguous and did not "allow for other factors to mitigate the 30-day requirement." Since it was uncontested that Jones did not satisfy the 30 days/5 years rule, the ALJ found that he had not rebutted the nonresidence presumption and was no longer a state resident for PFD purposes. The 2014 PFD Decision also affirmed the denial of Gwalthney-Jones's 2014 PFD application because, as an accompanying spouse, she was only eligible if Jones was. The ALJ rejected the Joneses' ex post facto challenge and found no conflict in the applicable statutes. The Joneses appealed to the superior court.

2. 2015 PFD applications and administrative proceedings

In March 2015 both spouses applied for 2015 PFDs. The Division denied Jones's 2015 application, reasoning that his "Alaska residency for PFD purposes was previously severed" when he could not rebut the presumption of nonresidence for his 2014 application. The Division, citing AS 43.23.005(a) and 15 AAC 23.143(b), stated that Jones "did not return to Alaska to remain indefinitely and re-establish his residency for PFD purposes until November 29, 2014, too late to qualify for the 2015 dividend." The Division also denied Gwalthney-Jones's application, as she had exceeded the allowable absences by being absent for 197 days in 2014 to accompany a spouse who was not eligible for a PFD.

The Joneses requested informal appeals of the 2015 PFD denials. They again listed their ties to Alaska and emphasized that they had returned permanently to the state in November 2014 upon Jones's retirement. The Division, citing AS 01.10.055, AS 43.23.005(a), and former AS 43.23.095(7), denied the informal appeals. It found that Jones "did not return to Alaska prior to January 1, 2014[,] to reestablish [his] residency and eligibility" under the PFD statutes. As to Gwalthney-Jones, the Division found that her 197 days' absence to accompany Jones was "not allowable" because he "was determined not eligible for the 2015 PFD."

The Joneses then requested formal hearings. Jones argued that he had returned to Alaska for a total of 47 days in the five years prior to his 2015 application and thus satisfied the 30 days/5 years rule. The Division countered that he "had previously severed his Alaska residency for PFD purposes," had only reestablished it in November 2014, and was thus not " 'a state resident during the entire qualifying year' when applying for the 2015 PFD."

Following a hearing the ALJ issued a decision and order affirming the denials of the Joneses' 2015 PFDs (2015 PFD Decision). The Commissioner of Revenue adopted the order in August 2016. The 2015 PFD Decision stated that the 2014 PFD Decision had "severed Mr. Jones's residency for PFD purposes prior to January 1, 2014." The ALJ concluded that the parties were bound by the outcome of the 2014 appeal pursuant to the doctrine of collateral estoppel (issue preclusion) and could not relitigate the question of Jones's residency. The ALJ therefore found both spouses ineligible for 2015 PFDs. The Joneses appealed to the superior court.

3. Superior court proceedings

The superior court consolidated the 2014 and 2015 PFD appeals. The Joneses, who by this point had obtained counsel, argued that AS 43.23.008(d) violates the due process, privileges and immunities, and equal protection clauses of the Fourteenth Amendment.

They also argued that it violates article I, section 1 of the Alaska Constitution and that it is an unconstitutional ex post facto law. Finally they asserted that even if the court found AS 43.23.008(d) constitutional, it could award them 2014 and 2015 PFDs through its equitable powers.

The superior court rejected the Joneses' constitutional arguments and declined to exercise its equitable powers to award them PFDs. The court found the Joneses ineligible for 2014 PFDs under a plain reading of the amended statute. It held that the statute did not create an irrebuttable presumption that would violate due process under Vlandis v. Kline , and that the 30 days/5 years rule was not an "unconstitutional durational residency requirement" under Saenz v. Roe . The court held that the Joneses were not denied equal protection under the Alaska or United States Constitutions and that the statute furthers legitimate state interests. Finally the court found that the statute was not an unconstitutional ex post facto law under Underwood v. State .

The Joneses appeal. They raise constitutional arguments almost identical to those raised before the superior court. They further argue that the statutes and regulations should be interpreted in the light most favorable to them. Finally they request that we use our equitable powers to award them their PFDs even if we find AS 43.23.008(d) constitutional.

III. STANDARD OF REVIEW

"When the superior court acts as an intermediate appellate court, we independently review the merits of the underlying administrative decision." Under de novo review, "[w]e adopt the rule of law that is most persuasive in light of precedent, reason, and policy." When an administrative decision raises an issue of "statutory interpretation involving legislative intent rather than agency expertise, we review that question independently, applying the substitution-of-judgment standard" and adopting "the rule of law that is most persuasive in light of precedent, reason, and policy." "However, even under the independent judgment standard [we have] noted that the court should give weight to what the agency has done, especially where the agency interpretation is longstanding." "Constitutional interpretation presents questions of law that are subject to independent review under the de novo standard."

IV. DISCUSSION

A. The Joneses Are Not Eligible For 2014 And 2015 PFDs Based On The Plain Language Of AS 43.23.008(d).

The Joneses raise what seems to be a statutory interpretation argument and assert that we should interpret the PFD statutes and regulations "in the light most favorable"

to them. They do not dispute that Gwalthney-Jones's eligibility depends on Jones's, but they argue that Jones is entitled to 2014 and 2015 PFDs because the legislative intent behind the 2013 statute "was to assist Alaska's career military personnel in proving their intent to remain Alaskans." The Department responds that the Joneses are ineligible for 2014 and 2015 PFDs under the plain language of amended AS 43.23.008.

We have said that "[t]he objective of statutory construction is to give effect to the intent of the legislature, with due regard for the meaning that the statutory language conveys to others." We therefore read "unambiguous statutory language" according to "its ordinary and common meaning" but "look to legislative history as a guide to construing a statute's words." We apply "a sliding scale approach to statutory interpretation, in which 'the plainer the statutory language is, the more convincing the evidence of contrary legislative purpose or intent must be.' "

The text of AS 43.23.008(d) reads:

After an individual has been absent from the state for more than 180 days in each of the five preceding qualifying years, the department shall presume that the individual is no longer a state resident . The individual may rebut this presumption by providing clear and convincing evidence to the department that
(1) the individual was physically present in the state for at least 30 cumulative days during the past five years; and
(2) the individual is a state resident as defined in AS 43.23.295.

The text is clear: an allowably absent individual must be physically present in the state for 30 days in the preceding five qualifying years to be eligible for a PFD. There is no ambiguity about this requirement.

Because the statute is plain and unambiguous, our sliding scale approach places a high burden on the Joneses to show contrary legislative intent to advance a different meaning. The Joneses seem to contend that the 2013 amendments' legislative history supports reading an "unavoidable circumstances" exception into the current statute. They imply that this exception would allow them to qualify for 2014 and 2015 PFDs, just as they did under the Division's pre-2013 regulation.

The legislative history does not support the Joneses' proposed reading of the statute. As part of its 2013 amendments to the PFD statutes, the legislature repealed former AS 43.23.008(c), which had established a cutoff from PFDs after ten years of absences:

An otherwise eligible individual who has been eligible for the immediately preceding 10 dividends despite being absent from the state for more than 180 days in each of the related 10 qualifying years is only eligible for the current year dividend if the individual was absent 180 days or less during the qualifying year.

The legislature repealed this ten-year cutoff shortly after we upheld its constitutionality in Ross v. State, Department of Revenue .

During a hearing on the proposed repeal, the bill's sponsor testified that removing the ten-year cutoff would allow individuals to "pursue a military career and continue to receive" a PFD. But because the State could not "single out a specific class of people [such as career military members] to get ... one benefit or another," the sponsor said the proposed law would verify PFD applicants' "intent to return ... after an allowable absence" by requiring them to rebut a presumption of nonresidence after five years' absence. And by codifying parts of existing regulations into statute, the bill would give "more specific direction to [ALJs]." The Joneses contend that these statements and other hearing testimony demonstrate a legislative intent contrary to the plain text of AS 43.23.008(d) as codified.

The Joneses' argument ignores that the legislature was aware of and chose to omit the previous regulation's "unavoidable circumstances" exception to the 30 days/5 years rule. One goal of the 2013 amendments to the PFD statutes was clearly to enable military members to keep receiving PFDs during allowable absences. But the sponsor's statements suggest that the legislature was also concerned with equal protection, providing clear direction to ALJs in PFD appeals, and ensuring the State's ability to limit PFD eligibility after long periods of absence. The legislative history indicates a balanced consideration of these concerns. As adopted, the 30 days/5 years rule imposes much less onerous demands than the ten-year rule, while still placing limits on allowable absences and providing clear guidance to ALJs. Thus, the legislative history does not support the Joneses' proposed reading of the 30 days/5 years provision as a flexible rather than bright-line rule. The Department properly denied the Joneses' 2014 PFD applications on this ground.

The Joneses argue that there is also some statutory ambiguity as to their residency status for the 2015 PFDs. They assert that following the 2014 PFD proceedings, it was unclear "where [they] fell in the taxonomy of resident, nonresident, or PFD-ineligible resident." But as the ALJ noted, the statute clearly establishes the presumption that Jones was not a resident for PFD purposes if he could not meet both the 30 days/5 years rule and the intent-to-remain element; meeting only the intent-to-remain element was insufficient to rebut the presumption.

The Joneses seem to claim that because of their ties to Alaska, they counted as Alaska residents for PFD purposes and should have had an opportunity to rebut the nonresidence presumption for 2015. But this argument ignores that the legislature is free to impose different residency requirements in different contexts, and that intent to remain is a necessary but not sufficient condition for PFD eligibility. Under AS 43.23.008(d), once the Joneses' residency was severed by the 2014 PFD Decision, they were no longer residents for PFD purposes; under AS 43.23.005(a), they were therefore not eligible for PFDs regardless of whether they could establish residency for other purposes.

They had to reestablish residency for "the entire qualifying year" in order to become eligible again. But they did not return until November 29, 2014-too late to be eligible for 2015 dividends. The Department correctly interpreted and applied the statute in denying their 2015 applications.

B. Alaska Statute 43.23.008(d) Does Not Create An Irrebuttable Presumption Of Nonresidence That Violates Due Process.

The Joneses argue that AS 43.23.008(d) denies them due process under the Fourteenth Amendment because it creates an irrebuttable presumption of nonresidence. The Department counters that the statute, rather than creating an invalid irrebuttable presumption, establishes "merely ... a reasonable, easily administered bright-line rule."

The Joneses rely on the 1973 United States Supreme Court case Vlandis v. Kline to argue that AS 43.23.008(d)(1) is unconstitutional. Vlandis dealt with a Connecticut law that charged higher tuition at its state university system for nonresident students than for residents. The statute defined residency for tuition purposes either by a student's legal address during the year prior to his or her application, if the student was unmarried, or by legal address at the time of application if the student was married. This determination was "permanent and irrebuttable for the whole time that [a] student remain[ed] at the university"; a student could not apply as a nonresident, establish residency while enrolled, and then pay resident tuition.

The Supreme Court invalidated the law, rejecting Connecticut's proffered justifications for its residency classifications. The Supreme Court held that the permanent irrebuttable presumption of nonresidence violated due process "because it provide[d] no opportunity for students who applied from out of [s]tate to demonstrate that they have become bona fide Connecticut residents." But the Court noted that its decision was not meant to deny states the right to impose a "reasonable durational residency requirement" as one element of bona fide residence, provided that students could meet this requirement while they were still students.

Unlike the statute in Vlandis , AS 43.23.008(d) explicitly provides a way to rebut the presumption of nonresidence: a PFD applicant can do so by meeting both the 30 days/5 years requirement and the intent-to-remain requirement. The Joneses argue that it nevertheless "applies a permanent and irrebuttable presumption of nonresidency to those bona fide Alaska residents" who both were absent for more than 180 days in each of the five preceding years and are unable to fulfill the 30 days/5 years rule. The Department responds that AS 43.23.008(d)'s presumption of nonresidence is not permanent.

We agree with the Department. Unlike the students in Vlandis , the Joneses' eligibility for future PFDs is not permanently determined. Each year, they, like other Alaskans, can apply for a PFD; with each application, their eligibility, like that of all Alaskans, is determined anew. Nothing prohibits the State from imposing reasonable residency requirements on individuals seeking to establish bona fide residence. The Supreme Court in Vlandis specifically distinguished Connecticut's statute from a Minnesota law it had previously upheld, which allowed students to qualify for state-resident tuition after being "a bona fide domiciliary of the State for at least a year." The PFD statutes are similar to the Minnesota law:

rather than leaving the Joneses "no opportunity ... to demonstrate that they have become bona fide [Alaska] residents," the statutes allow them to regain eligibility after one year. The Joneses have done just that, reestablishing residency for the 2015 qualifying year and receiving 2016 PFDs. Because AS 43.23.008(d)'s presumption of nonresidence does not permanently bar applicants from receiving PFDs, it does not create an invalid irrebuttable presumption and does not violate due process.

C. Alaska Statute 43.23.008(d) Does Not Violate The Right To Travel Under The Privileges And Immunities Clause.

The Joneses next argue that AS 43.23.008(d) impermissibly restricts their constitutional right to travel as protected by the Fourteenth Amendment's privileges and immunities clause. Citing Saenz v. Roe and Heller v. State, Department of Revenue , they contend that AS 43.23.008(d) should be subject to strict scrutiny and that it imposes an unconstitutional durational residency requirement. The Department argues that rational basis review applies under Heller and that AS 43.23.008(d) is valid because it directly advances the legitimate state interests of ensuring only bona fide Alaska residents receive PFD payments and preventing fraud.

Saenz dealt with a California statute that capped welfare benefits for any family that had resided in the state for less than 12 months at the amount payable by the family's previous state of residence. The Supreme Court found that this implicated the right to travel-specifically, the right of "travelers who elect to become permanent residents [of a state] ... to be treated like other citizens of that [s]tate." The Court held that heightened scrutiny applied, rejected California's "entirely fiscal justification" for the durational classification, and invalidated the statute on the ground that the Fourteenth Amendment "does not allow for[ ] degrees of citizenship based on length of residence."

But in Heller we distinguished the PFD program from the welfare benefits at stake in Saenz . Heller involved a constitutional challenge to subsection (b) of AS 43.23.008, which requires PFD applicants to reside in the state for six consecutive months before they can claim an allowable absence. Like the Joneses with the 30 days/5 years rule, Heller characterized the six-month rule as an impermissible durational residency requirement infringing on his right to travel. But we noted that "not all residency requirements are constitutionally infirm." The constitutionality of a residency requirement turns on its purpose-that is, whether it "was designed to establish the bona fides of a person's intent to remain in the state." Thus, requirements aimed at distinguishing residents from nonresidents will more likely pass constitutional muster than those aimed at distinguishing new residents from established ones.

We held that the six-month requirement in Heller was a bona fide residency requirement. It aims to prevent abuse of the PFD program by people who do not intend to stay in Alaska but who may be in the state for just long enough to establish residency. And while Saenz might seem to subject all durational residency requirements to heightened scrutiny, the Supreme Court in fact "carefully distinguished cases ... where the challenged statute is designed to verify bona fide residency." Saenz did not disturb the validity of previous cases applying less stringent standards of review to residency requirements distinguishable from California's.

We therefore held that rational basis review applied to the six-month rule. We noted that PFDs, as "highly portable cash benefit[s]," are "particularly susceptible to passers-through establishing minimal ties to Alaska while intending to reside elsewhere." Under these circumstances we found that six months was not too long a residency requirement to ensure PFD claimants are bona fide residents before they depart the state. We therefore upheld the rule as advancing the legitimate interest of limiting PFD benefits to permanent Alaska residents.

The Joneses argue that the 30 days/5 years rule is not designed to assess bona fide residence based on intent to remain because its physical-presence requirement ignores other evidence of residency-such as the Joneses' ties to the state. But this argument ignores that the State is free to define residency differently for different purposes. The statutes explicitly contemplate this: AS 43.23.295(7) defines a "state resident" for PFD purposes as someone "physically present in the state with the intent to remain indefinitely ... under the requirements of AS 01.10.055." And AS 01.10.055 provides that a person demonstrates the intent to remain "by maintaining a principal place of abode in [Alaska] for at least 30 days or for a longer period if ... required by law or regulation " and "by providing other proof of intent as may be required by law or regulation ." The intent-to-remain requirement is therefore properly applied in conjunction with other PFD-specific residency requirements. And we have held repeatedly that residency requirements for PFD purposes "may differ from other residency requirements" and may include physical-presence requirements and eligibility cutoffs after extended absences.

A physical-presence requirement is a reasonable way to distinguish bona fide residents who are allowably absent from residents of other states who are temporarily living in Alaska-particularly given that "Alaska's economy is a magnet for seasonal workers and other visitors" and the PFD is a portable, once-a-year cash payment. The 30 days/5 years rule is far less burdensome than the previous requirement we upheld in Ross that an applicant must be present in the state for 185 days after a ten-year absence in order to establish PFD eligibility. It requires merely that a PFD applicant be in the state for 30 cumulative days over five years-i.e., that the applicant spend less than 2%-or less than one week a year-of the preceding five years in Alaska. This requirement applies equally to all PFD applicants with prolonged allowable absences; it does not distinguish according to length of residence in Alaska or the applicant's previous state of residence. We therefore conclude that AS 43.23.008(d) does not impose an impermissible durational residency requirement or infringe upon the right to travel under the privileges and immunities clause.

D. Alaska Statute 43.23.008(d) Does Not Violate Equal Protection.

The Joneses argue that AS 43.23.008(d) violates the Alaska Constitution's guarantee of equal rights, opportunities, and protection by denying them an equal opportunity to present evidence of bona fide residence. They also argue that it violates federal equal protection because it fails rational basis review under Zobel v. Williams . The Department responds that AS 43.23.008(d) survives rational basis review and therefore does not violate either state or federal equal protection.

1. Alaska Statute 43.23.008(d) does not violate the Alaska Constitution's equal protection clause.

Article I, section 1 of the Alaska Constitution provides that "all persons are ... entitled to equal rights, opportunities, and protection under the law." Our flexible "sliding scale" test for equal protection claims involves a three-step analysis:

First, we determine what weight should be afforded the constitutional interest impaired by the challenged enactment. The nature of this interest is the most important variable in fixing the appropriate level of review. Second, we examine the purposes served by a challenged statute. Depending on the level of review determined, the state may be required to show only that its objectives were legitimate, at the low end of the continuum, or, at the high end of the scale, that the legislation was motivated by a compelling state interest. Third, an evaluation of the state's interest in the particular means employed to further its goals must be undertaken.

The Joneses argue that their PFD claims implicate " 'equal rights' and 'equal opportunities' [that] are broader" than equal protection; they seem to imply that heightened scrutiny applies as a result.

But we have repeatedly noted that the PFD is merely an economic interest that receives minimal scrutiny under our equal protection analysis. We therefore consider only whether the 30 days/5 years rule serves a legitimate governmental objective and whether it bears a fair and substantial relationship to achieving that objective. The Department argues that the statutes governing PFD eligibility serve multiple legitimate purposes: encouraging Alaska residency, reducing population turnover, and encouraging greater awareness and involvement by Alaska residents in the management of the Permanent Fund. The Department further argues that statutes "aimed at improving the efficiency of and simplifying the PFD program" are legitimate.

We agree; AS 43.23.008(d) serves multiple legitimate purposes, including deterring abuse of the PFD program, ensuring that a benefit conferred by the State goes only to bona fide residents, and simplifying the eligibility requirements that ALJs must apply. The "fair and substantial relationship" test does not require a perfect means-to-end fit and does not require the 30 days/5 years rule to be "perfectly fair to every individual to whom it is applied." It is also significant that the burden imposed by the 30 days/5 years rule is minimal. It requires merely that an applicant spend an average of six days per year in Alaska and allows PFD applicants substantial flexibility over how they distribute that time. In this context, we find that the rule bears a sufficient relationship to the aims it serves to satisfy Alaska's equal protection clause.

2. Alaska Statute 43.23.008(d) does not violate federal equal protection.

We have noted that Alaska's substantial relationship standard, the minimum protection we afford in equal protection claims, requires a closer means-to-end fit than federal rational basis review. The Joneses nevertheless argue that the 30 days/5 years rule violates federal equal protection under Zobel v. Williams . That case applied rational basis review to a PFD distribution scheme that based individuals' dividend amounts on the length of each individual's state residence. The State advanced three purposes for the statute: first, to create an incentive for people to establish and maintain Alaska residency; second, to encourage "prudent management of the Permanent Fund"; and third, to award benefits based on "contributions ... residents have made during their years of residency." The Supreme Court found that the first two objectives were not rationally related to the statute's distinctions between newer and older residents, and that the third objective was not a legitimate state purpose. It therefore held that the statute violated the Fourteenth Amendment's equal protection clause under rational basis review.

Alaska Statute 43.23.008(d) is easily distinguished from the statute at issue in Zobel. It makes no distinctions based on length of residence. Rather, it imposes equally on all residents a requirement that they maintain minimal physical presence in Alaska if they are claiming extended allowable absences. It is sufficiently related to the ends it serves to survive an equal protection challenge under our substantial relation test and is therefore valid under federal rational basis review as well.

E. Alaska Statute 43.23.008(d) Is Not An Unconstitutional Ex Post Facto Law.

The Joneses argue that the 30 days/5 years rule is an unconstitutional ex post facto law. Relying on Underwood v. State , they argue that we should apply a "fairness and reasonableness" test and find that the statute "unfairly impinges upon their settled expectations." The Department responds that the 2013 amendments merely codified existing regulations, albeit without the "unavoidable circumstances" exception; the Department further argues that because the legislature explicitly stated that AS 43.23.008(d) would not affect eligibility for 2013 PFDs, it did not "unfairly or unreasonably impinge upon any property rights or settled expectations."

The Joneses' ex post facto argument lacks merit; the prohibition on ex post facto laws is irrelevant here. Since Underwood we have clarified that the state and federal ex post facto clauses apply only to penal statutes:

Ex post facto prohibitions "bar the legislature from enacting any law that punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission; or which deprives one charged with a crime of any defense available according to law at the time when the act was committed."

The legislature in passing AS 43.23.008(d) did not criminalize a previously lawful act, retroactively increase a sentencing range, or deprive anyone facing criminal prosecution of a defense; it merely adjusted eligibility requirements for an economic benefit conferred by the State. The bar on ex post facto laws therefore has no bearing on the purely civil PFD claims raised here.

F. Our Equitable Powers Do Not Extend To Awarding PFDs In Contravention Of A Valid, Unambiguous Statute.

The Joneses, citing AS 22.05.020, finally exhort us to use our equitable powers to award them 2014 and 2015 PFDs. The Department responds that doing so would improperly ignore laws that the legislature validly enacted after extensive public comment and debate, and that granting the Joneses a "special, non-statutory exception" would frustrate the PFD program's goal of equitably distributing part of the state's energy wealth according to consistent eligibility requirements.

Our equitable powers do not go so far as to authorize us to directly contravene statutes passed by the legislature. Alaska Statute 22.05.020(b) empowers us to execute our judgments "according to ... the laws of the state"; it gives us no power to issue judgments despite those laws, as the Joneses ask us to do. The Alaska Constitution provides for the separation of powers, vesting "legislative power in the legislature; executive power in the governor; and judicial power" in the courts. The legislature duly enacted AS 43.23.008(d) ; the executive, in this case the Department, enforced it. Given that we find AS 43.23.008(d) constitutional, we will not encroach on the roles of the other branches of government by awarding the Joneses PFDs for which they are not eligible under the statute.

V. CONCLUSION

Because AS 43.23.008(d) is unambiguous, was not misapplied by the Department, and does not violate either the Alaska or the United States Constitution, and because we decline to exercise our equitable powers in contravention of a duly enacted statute, we AFFIRM the Department's denials of the Joneses' applications for 2014 and 2015 PFDs.

      AS 43.23.008(a) provides:
      Subject to (b) and (d) of this section, an otherwise eligible individual who is absent from the state during the qualifying year remains eligible for a current year permanent fund dividend if the individual was absent
      ....
      (3) serving on active duty as a member of the armed forces of the United States or accompanying, as that individual's spouse, ... an individual who is
      (A) serving on active duty as a member of the armed forces of the United States; and
      (B) eligible for a current year dividend.
      The accompanying-spouse provision was added to subsection (a)(3) in 2003, but was previously available to Gwalthney-Jones under a different subsection of the same statute. See Ch. 69, § 1, SLA 2003; former AS 43.23.008(a)(13) (2002).

      See AS 43.23.295(6) (" '[Q]ualifying year' means the year immediately preceding January 1 of the current dividend year."). Former AS 43.23.095, the definitional statute in place at the time of the Joneses' PFD applications and appeals, was renumbered as AS 43.23.295 in 2018. Revisor's notes, AS 43.23.295.

      AS 43.23.008(d) ; ch. 33, § 2, SLA 2013.

      Ch. 33, § 5, SLA 2013.

      Id. ; see former 15 AAC 23.163 (am. 1/1/99).

      Former 15 AAC 23.163 (2012).

      AS 43.23.008(d).

      See AS 43.23.008(a)(3) (requiring that the active-duty servicemember whom the applicant is accompanying be "eligible for a current year dividend").

      See 15 AAC 05.030(h) ("[T]he person requesting the [formal] hearing has the burden of proving that the [challenged] action by the department ... is incorrect.").

      They specifically claimed that AS 43.23.008(d) conflicted with AS 43.23.005(a)(4), which provides that an individual must have "been physically present in the state for at least 72 consecutive hours at some time during the prior two years before the current dividend year" to be eligible for a PFD. The Joneses do not raise this argument on appeal, so we note only that the 72-hour requirement being a necessary condition of PFD eligibility does not mean that it is a sufficient condition; the legislature is free to impose additional requirements.

      See AS 43.23.008(a)(3).

      AS 43.23.005(a) provides:
      An individual is eligible to receive one [PFD] each year ... if the individual
      ....
      (2) is a state resident on the date of application;
      (3) was a state resident during the entire qualifying year;
      ....
      (6) was, at all times during the qualifying year, physically present in the state or, if absent, was absent only as allowed in AS 43.23.008.

      15 AAC 23.143(b) provides that "[a]n individual may not become a resident while absent from Alaska."

      The Division found that Gwalthney-Jones had been absent for 19 days to assist a family member receiving care for a life-threatening illness-allowable under AS 43.23.008(a)(6) -and for 197 days "to accompany her ineligible military spouse." This exceeded the 45 days' absence she was allowed to claim in addition to her absence under AS 43.23.008(a)(6). See AS 43.23.008(a)(17)(C).

      While Jones's retirement from the military did not take effect until January 1, 2015, he was on terminal leave in Anchorage beginning November 29, 2014.

      AS 01.10.055(a) provides that "[a] person establishes residency in the state by being physically present in the state with the intent to remain ... indefinitely and to make a home in the state." The required intent may be shown "by maintaining a principal place of abode in the state for at least 30 days"-or longer if required by law or regulation-and providing other proof of intent if required by law or regulation. AS 01.10.055(b). A person retains state residency during an absence unless that person "establishes or claims residency" elsewhere or "is absent under circumstances that are inconsistent with" the required intent. AS 01.10.055(c).

      See AS 43.23.005(a)(2), (3), (6).

      Former AS 43.23.095(7) (renumbered as AS 43.23.295(7) ) defined a "state resident" as "an individual who is physically present in the state with the intent to remain indefinitely ... or, if the individual is not physically present in the state, intends to return to the state and remain indefinitely" pursuant to AS 01.10.055. See Revisor's notes, AS 43.23.295(7).

      See AS 43.23.005(a)(3).

      See AS 43.23.008(a)(3)(A)-(B) & (17)(C).

      See AS 43.23.005(a)(3).

      The Fourteenth Amendment states: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1.

      Alaska Const. art. I, § 1 provides: "[A]ll persons are equal and entitled to equal rights, opportunities, and protection under the law."

      See U.S. Const. art. I, § 10, cl. 1 ("No State shall ... pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts."); Alaska Const. art. I, § 15 ("No bill of attainder or ex post facto law shall be passed.").

      412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973).

      526 U.S. 489, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999).

      881 P.2d 322 (Alaska 1994).

      Heller v. State, Dep't of Revenue , 314 P.3d 69, 72 (Alaska 2013) (citing State, Pub. Emps.' Ret. Bd. v. Morton , 123 P.3d 986, 988 (Alaska 2005) ).

      Id. at 72-73 (citing State v. Native Vill. of Tanana , 249 P.3d 734, 737 (Alaska 2011) ).

      Morton , 123 P.3d at 988 (quoting Alaska Ctr. for the Env't v. Rue , 95 P.3d 924, 926 (Alaska 2004) ).

      Chugach Elec. Ass'n v. Regulatory Comm'n of Alaska , 49 P.3d 246, 249 (Alaska 2002) (quoting Cook Inlet Pipe Line Co. v. Alaska Pub. Utils. Comm'n , 836 P.2d 343, 348 (Alaska 1992) ).

      Id. at 250 (alteration in original) (quoting Nat'l Bank of Alaska v. State, Dep't of Revenue , 642 P.2d 811, 815 (Alaska 1982) ).

      Heller , 314 P.3d at 73 (citing Eagle v. State, Dep't of Revenue , 153 P.3d 976, 978 (Alaska 2007) ; State v. Planned Parenthood of Alaska , 171 P.3d 577, 581 (Alaska 2007) ).

      Heller , 314 P.3d at 74 (quoting City of Dillingham v. CH2M Hill Nw., Inc. , 873 P.2d 1271, 1276 (Alaska 1994) ).

      Id. (citing CH2M Hill Nw., Inc. , 873 P.2d at 1276 ).

      Municipality of Anchorage v. Stenseth , 361 P.3d 898, 905 (Alaska 2015) (quoting McDonnell v. State Farm Mut. Auto Ins. Co. , 299 P.3d 715, 721 (Alaska 2013) ).

      AS 43.23.008(d) (emphasis added).

      AS 43.23.008(d). We note that the 2014 PFD Decision found-and the Department does not dispute-that Jones could and did satisfy the statute's second requirement, qualifying as a resident under the former AS 43.23.095 based on his intent to return to Alaska. But AS 43.23.008(d) requires an applicant to satisfy both requirements to rebut the presumption of nonresidence for PFD purposes.

      See Stenseth , 361 P.3d at 905.

      See former 15 AAC 23.163(h)(2) (2012).

      Ch. 33, § 3, SLA 2013.

      292 P.3d 906, 912-14 (Alaska 2012). Ross, a Marine Corps officer, was denied a 2009 PFD based on the ten-year provision because his military career had kept him out of state. Id. at 908. Following our decision upholding the denial, he testified before the legislature in support of repealing the ten-year cutoff and replacing it with the current version of AS 43.23.008(d). Testimony of Brian Ross at 8:37:34, Hearing on H.B. 52 Before the H. State Affairs Standing Comm., 28th Leg., 1st Sess. (Jan. 29, 2013).

      Testimony of Rep. Eric Feige at 8:39:38, Hearing on H.B. 52 Before the H. State Affairs Standing Comm., 28th Leg., 1st Sess. (Jan. 29, 2013).

      Id .

      Id. ; see former 15 AAC 23.163(h)(2) (2012).

      Compare former 15 AAC 23.163(h)(2) (2012)with AS 43.23.008(d).

      Compare former AS 43.23.008(c) (2012) (requiring individual to be physically present in state for at least 185 days of qualifying year to be eligible after ten consecutive years of extended absences), with AS 43.23.008(d) (requiring only 30 days of physical presence spread out over five years to qualify after five consecutive years of extended absences).

      AS 43.23.008(d).

      See AS 01.10.055(b) (providing that person seeking to demonstrate intent to remain may, if "required by law or regulation," have to maintain principal place of abode in Alaska for longer than default 30 days or provide additional proof of intent); see also Heller v. State, Dep't of Revenue , 314 P.3d 69, 81 (Alaska 2013) ("[T]he residency requirement for PFD eligibility may differ from other residency requirements." (quoting Schikora v. State, Dep't of Revenue , 7 P.3d 938, 942 (Alaska 2000) )).

      See AS 43.23.005(a)(1)-(7) (listing PFD eligibility requirements including but not limited to state residence).

      See AS 43.23.005(a)(3) ; AS 43.23.008(d).

      AS 43.23.005(a)(3).

      412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973).

      Id. at 442, 93 S.Ct. 2230.

      Id. at 442-43, 93 S.Ct. 2230.

      Id. at 443, 93 S.Ct. 2230.

      Id. at 448-53, 93 S.Ct. 2230.

      Id. at 453, 93 S.Ct. 2230.

      Id. at 452, 93 S.Ct. 2230.

      AS 43.23.008(d).

      See AS 43.23.005(a) (setting eligibility requirements to receive a PFD "each year").

      See Vlandis , 412 U.S. at 452, 93 S.Ct. 2230.

      Id. at 452 n.9, 93 S.Ct. 2230 (citing Starns v. Malkerson , 401 U.S. 985, 985, 91 S.Ct. 1231, 28 L.Ed.2d 527 (1971), summarily aff'g 326 F.Supp. 234 (D. Minn. 1970) ).

      Id. at 453, 93 S.Ct. 2230.

      See AS 43.23.005(a)(3) (requiring an individual to have been "a state resident during the entire qualifying year" to be eligible for a PFD); AS 01.10.055(a) (providing that a person establishes Alaska residency "by being physically present in the state with the intent to remain ... indefinitely").

      526 U.S. 489, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999).

      314 P.3d 69 (Alaska 2013).

      Id. at 82.

      Saenz , 526 U.S. at 492, 119 S.Ct. 1518.

      Id. at 500, 502, 119 S.Ct. 1518.

      Id. at 504, 506, 119 S.Ct. 1518.

      Heller , 314 P.3d at 79 (citing Saenz , 526 U.S. at 505, 119 S.Ct. 1518 ).

      Id. at 77 ; AS 43.23.008(b).

      Heller , 314 P.3d at 77. Heller grounded his right-to-travel claim on equal protection rather than the privileges and immunities clause. Id. But on at least one occasion we have suggested that a privileges-and-immunities challenge to a physical-presence requirement for the PFD would be "unavailing." Schikora v. State, Dep't of Revenue , 7 P.3d 938, 946 n.30 (Alaska 2000) (addressing the 180-day limit on absences in the qualifying year and noting that any "burden" of physical presence was "borne equally by all [PFD] applicants, regardless of ... previous state citizenship").

      Heller , 314 P.3d at 78.

      Id.

      See id. (citing Williams v. Zobel , 619 P.2d 448, 451 n.7 (Alaska 1980) ).

      Id. at 81-82.

      Id. at 80.

      Id. at 82 (citing Saenz v. Roe , 526 U.S. 489, 505, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999) (declining to consider "what weight might be given to a citizen's length of residence if the bona fides of her claim to state citizenship were questioned")).

      See, e.g. , Sosna v. Iowa , 419 U.S. 393, 409-10, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975) (upholding as reasonable Iowa's one-year residency requirement for filing a divorce action); Vlandis v. Kline , 412 U.S. 441, 452, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973) (noting that Court's invalidation of Connecticut's residency-based tuition scheme did not prohibit states from imposing, "as one element in demonstrating bona fide residence, a reasonable durational residency requirement"); Starns v. Malkerson , 326 F. Supp. 234, 238-41 (D. Minn. 1970) (applying rational basis review to uphold one-year residency requirement for in-state tuition), aff'd summarily by Starns v. Malkerson , 401 U.S. 985, 985, 91 S.Ct. 1231, 28 L.Ed.2d 527 (1971).

      Heller , 314 P.3d at 82.

      Id. at 79. The Supreme Court in Saenz acknowledged the relevance of this kind of susceptibility: it specifically distinguished welfare benefits, which would be consumed within California, from a "readily portable benefit" that might attract claimants from out of state with questionable bona fides of residency. Saenz , 526 U.S. at 505, 119 S.Ct. 1518.

      Heller , 314 P.3d at 80.

      Id. at 82 & n.72.

      Formerly AS 43.23.095(7), renumbered as AS 43.23.295(7) in 2018. See Revisor's notes, AS 43.23.295.

      AS 01.10.055(b)(1)-(2) (emphasis added).

      Heller , 314 P.3d at 81 (quoting Schikora v. State, Dep't of Revenue , 7 P.3d 938, 942 (Alaska 2000) ); accord Church v. State, Dep't of Revenue , 973 P.2d 1125, 1129 (Alaska 1999) (quoting Brodigan v. State, Dep't of Revenue , 900 P.2d 728, 733 n.12 (Alaska 1995) ).

      See Schikora , 7 P.3d at 944-45 (upholding rule requiring PFD claimants to be physically present in state for at least 185 days during qualifying year).

      See Ross v. State, Dep't of Revenue , 292 P.3d 906, 913-14 (Alaska 2012) (upholding former AS 43.23.008(c)'s rule cutting off PFD eligibility after ten consecutive years with more than 180 days' absence in each year).

      Heller , 314 P.3d at 79-80 ; see also State of Alaska, Dep't of Labor & Workforce Dev., Nonresidents Working in Alaska : 2017 1 (2019), http://live.laborstats.alaska.gov/reshire/nonres.pdf (finding that nonresidents accounted for 20.9% of Alaska workers).

      See former AS 43.23.008(c) (requiring applicant be physically present in Alaska for at least 185 days during qualifying year if applicant had been absent for more than 180 days in each of the preceding ten years); Ross , 292 P.3d at 908, 913-14.

      Alaska Const. art. I, § 1.

      457 U.S. 55, 102 S.Ct. 2309, 72 L.Ed.2d 672 (1982).

      Ross , 292 P.3d at 909-10 (quoting Harrod v. State, Dep't of Revenue , 255 P.3d 991, 1001 (Alaska 2011) ).

      Heller , 314 P.3d at 83 (citing Church v. State, Dep't of Revenue , 973 P.2d 1125, 1130 (Alaska 1999) ); accord Ross , 292 P. 3d at 910 (quoting Harrod , 255 P.3d at 1001 ).

      See Ross , 292 P.3d at 910 ; Church , 973 P.2d at 1130 (quoting Underwood v. State , 881 P.2d 322, 325 (Alaska 1994) ).

      See Testimony of Rep. Eric Feige at 8:39:38, Hearing on H.B. 52 Before the H. State Affairs Standing Comm., 28th Leg., 1st Sess. (Jan. 29, 2013).

      Ross , 292 P.3d at 910 (quoting Harrod , 255 P.3d at 1001 ).

      See Heller , 314 P.3d at 83 ("[T]hat the PFD is an economic interest that does not usually warrant strict scrutiny ... is not the only factor in the analysis. It is important that the burdens on the alleged rights in this case are minimal.").

      See, e.g. , Matanuska-Susitna Borough School Dist. v. State , 931 P.2d 391, 402 (Alaska 1997).

      457 U.S. 55, 102 S.Ct. 2309, 72 L.Ed.2d 672 (1982).

      Id. at 56, 102 S.Ct. 2309. The statute awarded PFD recipients one "dividend unit for each year of residency subsequent to 1959, the first year of statehood." Id. at 57, 102 S.Ct. 2309.

      Id. at 61, 102 S.Ct. 2309 (internal quotations omitted).

      Id.

      Id. at 63, 102 S.Ct. 2309 (citing Shapiro v. Thompson , 394 U.S. 618, 632-33, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (rejecting a similar "past contributions" rationale for differential welfare benefits), overruled in part on other grounds by Edelman v. Jordan , 415 U.S. 651, 670-71, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) ).

      Id. at 65, 102 S.Ct. 2309.

      AS 43.23.008(d)(1).

      See Stanek v. Kenai Peninsula Borough , 81 P.3d 268, 272 (Alaska 2003) ("[A]nalysis of equal protection claims under the federal constitution is, if anything, more forgiving than the approach we use under the ... Alaska Constitution.").

      See Underwood v. State , 881 P.2d 322, 327-28 (Alaska 1994). In that case we upheld a 1992 amendment to the PFD statutes requiring applicants for 1993 PFDs to show Alaska residency as of January 1, 1992. Id. The previous statute had required residency as of April 1, 1992; the Underwoods moved to Alaska in March 1992, expecting to qualify for the 1993 PFD, and raised an ex post facto challenge when they did not qualify. Id. at 324. Applying a "vested rights" analysis, we found that no Alaskan, let alone the Underwoods, had a vested right to a 1993 PFD as of March 1992. Id. at 327 ; see also Church v. State, Dep't of Revenue , 973 P.2d 1125, 1131 (Alaska 1999) ("An applicant has no vested property right in a [PFD] and should not expect to receive a dividend if he doesn't meet the qualifications."). We also found that even if the proposed "fairness and reasonableness" test were applied, the Underwoods would not qualify for 1993 PFDs. Underwood , 881 P.2d at 327-28.

      Underwood , 881 P.2d at 328.

      Pfeifer v. State, Dep't of Health &Soc. Servs., Div. of Pub. Assistance , 260 P.3d 1072, 1081 n.43 (Alaska 2011) (quoting Doe v. State , 189 P.3d 999, 1003 (Alaska 2008) (internal quotations omitted)); accord Dobbert v. Florida , 432 U.S. 282, 292, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977).

      AS 43.23.008(d) ; ch. 33, § 2, SLA 2013.

      AS 22.05.020(b) provides: "The supreme court is vested with all power and authority necessary to carry into complete execution all its judgments, decrees, and determinations in all matters within its jurisdiction, according to the constitution, the laws of the state, and the common law."

      Id. (emphasis added).

      Alaska Pub. Interest Research Grp. v. State , 167 P.3d 27, 35 (Alaska 2007).


source: Caselaw Access Project

author: HOWE, Judge: CAMPBELL, J., specially concurring:

license: Public Domain

text:
    The NAVAJO NATION, Appellant, v. DEPARTMENT OF CHILD SAFETY, R.Y., Whiteflutee Y., Natasha S., Appellees.
    No. 1 CA-JV 18-0276
    Court of Appeals of Arizona, Division 1.
    FILED April 18, 2019
   HOWE, Judge:

¶1 The Navajo Nation appeals the juvenile court's order appointing a permanent guardian for a child subject to the Indian Child Welfare Act ("ICWA") without the testimony of a qualified expert witness that the parent's or the Indian-relative custodian's continued custody would likely result in serious emotional or physical damage to the child. We hold that ICWA applies to guardianships and that it requires a qualified expert witness to provide this testimony. Because such testimony was not provided in this case, we vacate the juvenile court's order and remand the case for a new hearing.

FACTS AND PROCEDURAL HISTORY

¶2 Whiteflutee Y. ("Mother") gave birth to R.Y. in September 2012. The Department of Child Safety removed R.Y. from Mother's care in August 2014 alleging neglect and substance abuse. Mother had become impaired, allegedly by methamphetamine, and threatened to kill a man who lived in her home. She waved a gun at the man and barricaded herself in the home with R.Y. She was arrested for aggravated assault with a deadly weapon and the Department moved for dependency. Because Mother is a member of the Navajo Nation, the dependency proceedings had to comply with ICWA. In April 2015, the court adjudicated R.Y. dependent.

¶3 In January 2017, Mother moved to appoint Natasha S., R.Y.'s foster placement, as R.Y.'s permanent guardian. Guardianship hearings were held over several dates beginning in March 2017. In June 2017, the Navajo Nation informed the court and parties that it would not actively oppose Mother's guardianship motion. It also stated, however, that the Navajo Nation's family services department would not provide the expert-witness testimony ICWA required and that Mother or the Department would need to provide an expert witness if Mother wished to proceed with the guardianship. The Department stated that it would attempt to schedule its own expert witness to testify.

¶4 In August 2017, the issue of expert-witness testimony was discussed again, and the court reiterated that such testimony was necessary to satisfy ICWA. But in September 2017, the Department informed the court and parties that its designated expert witness was unwilling to provide the requisite testimony for the guardianship. That same month, Mother proposed Ian Service as her expert witness. The Department took no position on Service's qualifications as an expert witness, but the Navajo Nation objected. The court held a voir dire hearing to determine whether Service was qualified.

¶5 During that hearing, Service testified that he had been an attorney for about ten years, mostly as a public defender or prosecutor in Idaho. He stated that 10 to 15 percent of his cases involved ICWA in some way and that he had served as an expert witness in two cases. He admitted, however, that both cases were before the same judge and involved the Shoshone-Bannock Tribe-not the Navajo Nation. He also acknowledged that he was not a member of any Indian tribe, was not recognized as an expert witness by the Navajo Nation, had never been contacted by the Navajo Nation to testify as an expert witness, and was not familiar with the Navajo Nation's parenting customs. Service further stated that he had only minimally reviewed the record and that he had not talked to the proposed Indian-relative placement, R.Y., the Department's expert witness who had refused to testify, or the Navajo Nation case specialist assigned to this case.

¶6 Before determining if Service qualified as an expert witness, the court allowed him to testify that continued custody by Mother or the Indian-relative custodian would likely result in serious emotional or physical damage and that the guardianship was in R.Y.'s best interests. The court asked Service how he could come to such a conclusion when he had not seen R.Y. with the relative placement or with Mother. Service responded that although he had not read any of the reports, he had heard from Mother's attorney that visits with the relative placement had not gone well and that Mother was unable to parent due to her incarceration. At the hearing's conclusion, the court requested and received briefing on whether Service qualified as an expert witness. The court determined that he was not qualified.

¶7 At the hearing on the motion in December 2017, Mother testified that R.Y. should be placed with Natasha S., but no party presented qualified expert testimony whether Mother's or the Indian-relative custodian's continued custody would likely cause R.Y. serious emotional or physical damage. Nevertheless, the court found good cause to place R.Y. in a non-ICWA-preferred placement under 25 U.S.C. § 1915(b), which authorizes placement with a person or group unaffiliated with the Indian child's family or tribe, an Indian foster home, or any other Indian organization upon a showing of good cause. Without receiving any qualified expert-witness testimony regarding ICWA, the court then appointed Natasha S. as R.Y.'s permanent guardian. The Department and the Navajo Nation objected to the appointment because no qualified expert witness had testified. In January 2018, the court issued a nunc pro tunc order finding "good cause to deviate from the ICWA compliance requirement." The Department and the Navajo Nation jointly moved to reconsider because of the lack of expert-witness testimony, and the court denied the motion.

¶8 In June 2018, the court signed the order for permanent guardianship. In August 2018, the court reopened the time for appeal on the final order of permanent guardianship. Then in October 2018, the court signed a new order for permanent guardianship. The Navajo Nation timely appealed.

DISCUSSION

¶9 The Navajo Nation argues that the juvenile court violated ICWA by failing to require testimony from a qualified expert witness before making Natasha S. R.Y.'s permanent guardian. We review de novo the interpretation and application of ICWA. Michael J., Jr. v. Michael J., Sr. , 198 Ariz. 154, 156 ¶ 7, 7 P.3d 960, 962 (App. 2000). In doing so, "our task is to give effect to the will of Congress, and where its will has been expressed in reasonably plain terms, that language must ordinarily be regarded as conclusive." Steven H. v. Ariz. Dep't of Econ. Sec. , 218 Ariz. 566, 570 ¶ 14, 190 P.3d 180, 183 (2008) (quoting Negonsott v. Samuels , 507 U.S. 99, 104, 113 S.Ct. 1119, 122 L.Ed.2d 457 (1993) ). This Court will not reverse a guardianship order unless it is clearly erroneous. Jennifer B. v. Ariz. Dep't of Econ. Sec. , 189 Ariz. 553, 555, 944 P.2d 68, 70 (App. 1997). When reviewing a juvenile court's order for permanent guardianship, we accept its findings of fact unless reasonable evidence does not support them. Jesus M. v. Ariz. Dep't of Econ. Sec. , 203 Ariz. 278, 280 ¶ 4, 53 P.3d 203, 205 (App. 2002).

1. The Navajo Nation's Party Status

¶10 Natasha S. argues that the Navajo Nation waived its party status when it did not actively oppose her appointment as guardian. The record shows, however, that even though the Navajo Nation did not object to Natasha's appointment, it still demanded that the court hear the requisite expert-witness testimony before making her R.Y.'s guardian. When the court did not do so, the Navajo Nation promptly objected. Thus, it did not waive its ability to argue this issue on appeal.

¶11 Similarly, she also contends that the Navajo Nation is no longer a party because the juvenile court has already resolved the foster care placement issue. This assertion is incorrect, however, because "[a]ny aggrieved party may appeal from a final order of the juvenile court to the court of appeals." Ariz. R.P. Juv. Ct. 103(A). The Navajo Nation was aggrieved by the juvenile court's failure to follow ICWA's expert-testimony requirement, which if left undisturbed would establish a precedent that the requirement need not be followed in future cases. Moreover, under ICWA, any Indian child, parent, Indian custodian, or tribe "may petition ... to invalidate [a foster care placement] upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of this title." 25 U.S.C. § 1914. Thus, the Navajo Nation is a proper party on appeal.

2. ICWA Requires Expert-Witness Testimony

¶12 For child placement cases governed by ICWA, "[n]o foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." 25 U.S.C. § 1912(e). A "child custody proceeding" includes a "foster care placement," which in turn means:

any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated[.]

25 U.S.C. § 1903(1)(i). In Arizona, a "court order vesting permanent guardianship with an individual divests the birth or adoptive parent of legal custody of or guardianship for the child but does not terminate the parent's rights." A.R.S. § 8-872(h).

¶13 Although ICWA does not explicitly recognize "permanent guardianships," a comparison of Arizona's statute for permanent guardianship and ICWA's definition for a "foster care placement" shows that ICWA applies in permanent guardianships. ICWA provides that a "foster care placement" involves (1) a child being placed in a guardian's home, (2) a parent's inability to demand custody, and (3) non-termination of the parent's rights. 25 U.S.C. 1903(1)(i). Likewise, Arizona's permanent guardianship statute involves (1) a child placed with a guardian, (2) a parent's loss of custody, and (3) non-termination of the parent's rights. A.R.S. § 8-872(h). Therefore, based on the statutes' plain language, ICWA applies to Arizona's permanent guardianship proceedings. Cf. Valerie M. v. Ariz. Dep't of Econ. Sec. , 219 Ariz. 155, 160 ¶ 16, 195 P.3d 192, 197 (App. 2008) (applying ICWA's burden of proof for permanent guardianships involving an ICWA child).

¶14 Section 1912(e) 's plain language states that no foster care placement, which includes permanent guardianships, may be ordered without expert-witness testimony on whether a parent's or an Indian-relative custodian's continued custody of a child will likely result in serious emotional or physical damage to the child. Therefore, a court must hear expert-witness testimony before ordering a permanent guardianship. The record shows that R.Y. was subject to ICWA and a guardianship proceeding took place. Thus, ICWA required the juvenile court to hear expert-witness testimony on whether Mother's or the Indian-relative custodian's continued custody of R.Y. would likely result in serious emotional or physical damage to R.Y.

¶15 Natasha S. argues that Mother was not a "party" in the guardianship and therefore not required to present expert-witness testimony. Mother, however, petitioned for guardianship, placing her custodial rights over R.Y. at issue. Thus, Mother was a party in this matter. Even if Mother had not been a party, ICWA still required the court to hear the requisite expert-witness testimony before appointing Natasha S. as guardian.

Furthermore, Mother was not the only party that could have presented expert-witness testimony; the court could have subpoenaed the Department's expert witness to testify.

¶16 Natasha S. also argues that Mother had converted the involuntary dependency into a voluntary matter when Mother petitioned to appoint Natasha S. as guardian, thereby eliminating the need for expert-witness testimony. But all of the proceedings, including the guardianship, arose out of a state dependency action that the Department had initiated. Thus, despite Mother's motion, this was still an involuntary dependency action and required expert-witness testimony. Moreover, expert-witness testimony is required in voluntary child custody proceedings governed by ICWA. 25 U.S.C. §§ 1903(1)(i), 1912(e) ; 25 C.F.R. § 23.103(a)(1) (providing that ICWA applies to child custody proceedings, including involuntary proceedings and voluntary proceedings that could prohibit the parent from regaining custody of the child upon demand).

3. The Guardianship Proceeding Lacked Expert Testimony

¶17 The juvenile court received no testimony from a qualified expert witness supporting its guardianship decision. Although Mother proffered Service as a qualified expert witness under ICWA, the juvenile court found that Service was not qualified. The United States Department of the Interior Bureau of Indian Affairs provides nonmandatory guidelines ("Guidelines") to aid courts in interpreting ICWA. Brenda O. v. Ariz. Dep't of Econ. Sec. , 226 Ariz. 137, 140 ¶ 14, 244 P.3d 574, 577 (App. 2010). The Guidelines identify three types of witnesses likely to satisfy ICWA's requirement: (1) a member of the child's tribe who is knowledgeable in tribal customs as they pertain to family organization and childrearing practices, (2) a person who has substantial experience in providing child and family services to Indians and extensive knowledge of prevailing social and cultural standards and childrearing practices within the child's tribe, and (3) a professional person with substantial education and experience in a specialty area. Id. In cases in which "cultural mores" are not involved, an expert witness need not have cultural knowledge or experience. Rachelle S. v. Ariz. Dep't of Econ. Sec. , 191 Ariz. 518, 521, 958 P.2d 459, 462 (App. 1998) (concluding that an infant's physician who had treated more than 60 infants for shaken-baby syndrome had sufficient expertise to testify about the emotional or physical risk of harm to the child if returned to the parents' care). We review a court's ruling on expert witness qualifications for an abuse of discretion. Rasor v. Northwest Hospital LLC , 244 Ariz. 423, 426 ¶ 10, 419 P.3d 956, 959 (App. 2018).

¶18 Although Service had been an expert witness in two other cases, the cases were before the same judge and involved a different tribe. Service was not a member of any Indian tribe and the Navajo Nation had never recognized or contacted him to testify as an expert witness. Further, he acknowledged having only minimally reviewed the record and had not met with the Navajo Nation case specialist, the Navajo Nation expert witness, the Indian-relative placement, or R.Y. before testifying. Thus, the facts reasonably support the court's finding that Service did not qualify as an expert witness in this case, and the court did not abuse its discretion in so finding. Consequently, no qualified expert witness provided the requisite ICWA testimony.

¶19 Natasha S. contends that because good cause was found to deviate from ICWA's placement preferences, the court was able to appoint her as guardian without expert-witness testimony. She is incorrect. Although 25 U.S.C. § 1915(b) allows a court to select a placement outside of ICWA's preferred placements if good cause exists, that statute does not state that good cause may extinguish 25 U.S.C. § 1912(e) 's expert-witness testimony requirement. As such, the existence of good cause is irrelevant to whether requisite expert-witness testimony is necessary.

¶20 Natasha S. also contends that the guardianship was in R.Y.'s best interests. Regardless whether the guardianship was in R.Y.'s best interests, an expert witness still needed to testify before the court could appoint a guardian. Because an expert witness did not provide the requisite testimony, thereby necessitating a remand, we need not address this issue.

CONCLUSION

¶21 For the foregoing reasons, we vacate the juvenile court's guardianship determination and remand the case for a hearing with the requisite expert-witness testimony.

CAMPBELL, J., specially concurring:

¶22 While federal law requires me to agree with the majority opinion, I do so under protest. This is a clear case of form over substance-compliance with ICWA has usurped the best interest of this child and the rights of his biological Mother. There is no dispute that the Guardian Ad Litem, Mother, and the foster placement supported the proposed guardianship. Neither DCS nor the Navajo Nation actively supported or objected to the guardianship. At the time of the hearing, the child had been with the proposed guardian for more than three years.

¶23 One might ask-what then is the problem? The only issue with the guardianship is the absence of testimony from a Qualified Indian Child Welfare Expert Witness ("QEW"). Under ICWA, a QEW must testify that the continued custody of the child with the parent or Indian custodian will likely result in emotional or physical harm to the child before it can deviate from the ICWA placement preferences. 25 U.S.C. § 1912(e) ; see supra ¶¶ 12-14. The juvenile court made this finding on two prior occasions, confirming that remaining with the proposed guardian (the foster placement) was in the child's best interests. In the meantime, there had been no change in Mother's circumstances-she was still in prison. Continued custody of the child by Mother remained impossible.

¶24 There being no change in Mother's circumstance, the need for QEW testimony was simply a formality. The Navajo Nation refused to provide a QEW, even though Native American tribes are the main resource in the BIA Guidelines identified to assist in locating QEWs. U.S. Department of Interior, Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act 54 (Dec. 2016) ("The rule encourages ... any party to request the assistance of the Indian child's Tribe or the BIA office serving the Indian child's Tribe in locating persons qualified to serve as expert witnesses."). DCS also refused to help Mother after the Department's only QEW in Maricopa County refused to provide testimony. Her refusal was based in part on her opinion that the child should be placed with a member of the Navajo Nation. By refusing to provide the required testimony, the QEW's absence-and the scarcity of alternative QEWs-acted as a de facto veto of the judicial decision without due process of law.

¶25 After the Navajo Nation and DCS refused to provide a QEW, Mother's attorney began searching for one. Ten days before the hearing, she located an attorney who had previously provided QEW testimony for the Shoshone-Bannock Tribe. The Navajo Nation objected, asserting this expert lacked adequate cultural knowledge and understanding of the Navajo people. Based on the Navajo Nation's objection, the court determined the witness did not qualify as a Navajo QEW.

¶26 The majority holds the court committed error by granting the guardianship without QEW testimony. While the law requires that result, it is not in the child's best interests nor does it give any weight to Mother's constitutionally guaranteed parental rights. See Santosky v. Kramer , 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ("The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State."); Trisha A. v. Dep't of Child Safety , 245 Ariz. 24, 29-30, ¶ 12, 424 P.3d 425, 430-31 (App. 2018) (review granted Feb. 5, 2019). The child had been in the same foster placement for more than three years and the court already found that moving him to Mother (an impossibility) or a Navajo placement would be detrimental to his well-being. Moreover, although Mother's parental rights are intact, her preference for guardianship placement is cast aside-not because of the Navajo Nation's objection to the guardianship, but because of its protection of QEW status and the procedural requirements set forth in ICWA.

¶27 In this instance, ICWA frustrates the general purpose of a dependency proceeding. The juvenile court's mandate is to resolve the matter consistent with the best interests of the child. See Ariz. Dept. of Econ. Sec. v. Super. Ct., 178 Ariz. 236, 239, 871 P.2d 1172, 1175 (App. 1994) ("The primary consideration in a dependency case is always the best interest of the child."); see also Pima Cty. Juv. Action No. J-31853, 18 Ariz. App. 219, 220, 501 P.2d 395 (1972) ("The welfare of the child is the prime consideration of a juvenile code."). Here, there was nothing that needed to be resolved through QEW testimony: all parties conceded that Mother could not parent the child from prison and attempts to place the child within the tribal community had proven detrimental. See 25 U.S.C. § 1912(e) ; supra ¶¶ 12-14. In this case, strict compliance with ICWA undermined the goals of the entire dependency process and failed to serve the best interests of this child and the rights of this Mother.

      Mother mistakenly argues that the court did not abuse its discretion by allowing Service to testify as an expert witness under ICWA. The record shows that the court determined Service did not qualify as an expert witness. To the extent that Mother may be arguing that the court abused its discretion by finding that Service was unqualified, the record sufficiently supports the court's finding.

      We acknowledge the frustration our concurring colleague expresses about the effect of ICWA's requirements on prolonging the resolution of R.Y.'s proper placement. Nevertheless, as our colleague fairly admits, ICWA requires this result, and we must follow the law regardless of our personal views on the correct outcome.

      Arizona courts have previously relied on BIA Guidelines. Brenda O. v. Ariz. Dep't of Econ. Sec. , 226 Ariz. 137, 140, ¶ 14, 244 P.3d 574, 577 (App. 2010) ; Rachelle S. v. Ariz. Dep't of Econ. Sec. , 191 Ariz. 518, 520, ¶ 12, 958 P.2d 459, 461 (App. 1998) ; see also Matter of M.E.M. , 195 Mont. 329, 635 P.2d 1313, 1320 (1981) (directing the district court on remand to consider the BIA Guidelines).