Alaskans argue dividend denials all the way to Supreme Court

Posted: Monday, May 22, 2000

JUNEAU (AP) -- For most Alaskans, getting a Permanent Fund Dividend takes a few minutes of paperwork and a postage stamp.

For Bradley Esary, the application is costing more than $10,000 in legal fees and an appearance before the Alaska Supreme Court.

Esary, denied a $1,540.88 dividend in 1998 because he worked outside the state for more than 180 days the year before, has one of five lawsuits before the state's highest tribunal seeking to reverse a dividend denial.

State and federal employees are allowed to work outside the state and still be eligible for dividends. Esary, an Anchorage computer worker, said the Permanent Fund Dividend Division should make the same exception for employees of private companies.

''I didn't go in for the money,'' Esary said of his lawsuit. ''The way they treat people, that I don't like. We have to see what the Supreme Court thinks.''

More than 3,300 people appealed division denials last year as the state disbursed just more than $1 billion in earnings from the Permanent Fund, an oil-royalty savings account. Hearing officers upheld the denials in two-thirds of the cases, leaving applicants the option of going without a check or appealing to the Department of Revenue and the court system.

The other cases before the Supreme Court include:

-- A Coast Guard officer who argued he should continue receiving dividends more than five years after he left Ketchikan because he considers himself an Alaskan, has tried to get assignments in the state and plans to move back after retirement.

-- A Homer couple with six children denied dividends in 1997 because they were out of Alaska for more than 180 days in 1996, in part to be with ill relatives.

-- A Fairbanks man, a resident since 1945, who left for more than 180 days in 1991 and 1992 to pursue investment opportunities in Mexico.

-- An Anchorage man who claimed his appeal should not have been dismissed as untimely because his paperwork was sent to the wrong address.

Chief of Operations Paul Dick said the division follows parameters approved by the Legislature.

''The Legislature drew a line in the sand, so to speak, as to who is a bona fide Alaskan,'' Dick said. ''They had to draw a line in the sand somewhere.''

State statutes now require Alaskans to be out of state for no more than 180 days if they want dividend checks. At just under half the year, that's long enough to escape bad winter weather but keep Alaska as a principal residence, Dick said.

Esary missed just one dividend. He said it's shameful that the dividend division can reject eligibility because of an applicant's employer.

''They want to tell you who you can work for and where you can work,'' he said.

His lawyers said in the court brief that Esary is exactly the sort of person for whom dividends are intended.

Esary moved to Alaska in 1975 and his family followed a year later. He bought a home and registered to vote in 1976. He worked for the same company, Western Atlas, from 1979 through October 1997.

Esary was absent about 200 days in 1997, mostly in stretches of a month or less. He lived in hotel rooms while his wife remained in Anchorage. He served on a jury, paid property taxes and voted in Alaska. Denying him a dividend for taking work assignments outside the state was bad enough, his attorney said.

''To then provide an exception for state employees working outside at the behest of their employer, but not provide the same exception for private employees, simply runs afoul of equal protection principals,'' his attorney said.

A long absence was the reason for rejecting the 1992 and 1993 applications of Fred Schikora of Fairbanks, gone for 196 days on vacation and looking for investment opportunities in Mexico in 1991, and gone for 212 days to Mexico, mostly to seek financing to build three houses.

The division also rejected the 1997 applications from Homer residents Robert and Judy Cousins and their six children, which cost the family $10,372.32. The family traveled to Mexico in 1996, stopping to see Judy Cousin's ill grandfather. Three weeks after returning to Alaska, they drove to Maine to be with Robert Cousin's ill parents. They were absent about 220 days.

The Cousins, representing themselves, said in their Supreme Court brief that the dividend denial amounts to a fine for exercising their right to travel.

''The state has no authority to limit, modify, condition or penalize the exercise of our constitutional freedom of interstate travel,'' Robert Cousins wrote.

A fourth case attacks the state's presumption that people absent from the state for more than five years are not permanent residents for dividend purposes. People gone that long are presumed by the state not to have an intent to return.

Coast Guard officer Douglas Anderson was born in Alaska in 1963 and lived in the state until 1980, when his parents moved to Colorado and then Missouri. After graduation from high school, Anderson joined the Coast Guard and was assigned to Ketchikan for three years, beginning in 1988.

As an active member of the military, Anderson received dividends for the first five years after he left the state. The division rejected Anderson's 1997 application.

The division and the Superior Court ruled Anderson had not overcome the presumption of not returning merely because he had maintained an Alaska driver's license, vehicle registration, and voter registration. Requesting additional tours of duty in Alaska, and trips of up to three days each in 1993, 1995 and 1997 also did not make him a resident for dividend purposes.

Assistant Attorney General Dan Branch wrote in the state's brief that Anderson made a career choice that took him away.

''The trade-off for such a career choice, however, is that he is no longer eligible for a dividend because substantial evidence indicates that he cannot live in Alaska and pursue this career at the same time,'' Branch wrote.

The fifth case involves missed deadlines and errant mail.

Michael Telgenhoff claimed he missed deadlines because the division sent notices to the wrong address. The division sent notices to the address listed on Telgenhoff's application. Branch wrote that Telgenhoff had an obligation to keep the division informed of address changes.

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