DEPARTMENT OF ADMINISTRATION PO,BOX 1 10200
JUNEAU, ALASKA 9981 1-0200
OFFICE OF THE COMMISSIONER (907)465-2135
October 27, 2006
Hon. Frank H. Murkowski, Governor
State of Alaska
Juneau, Alaska 99801
Dear Governor Murkowski:
Re: ACLU v. State of Alaska and Implementation of Same-Sex Partner Benefits for State
Emplovees and Retirees
On October 28, 2005 the Alaska Supreme Court issued a decision in Alaska Civil
Liberties Union ("ACLU") v. State of Alaska ("State") and Municipality of Anchorage ("MOA"), 122
P.3d 781 (Alaska 2005), in which it concluded the failure to provide certain benefits to same-sex
partners of State and MOA employees and retirees violated the equal protection clause in the
Alaska Constitution. The Court retained jurisdiction over the case to consider the "issue of
remedy." The parties completed briefing that matter before the Court in January 2006. More
than four months later and after the legislature had adjourned its regular session, the Court
ordered that the State and MOA "must provide, no later than January 1,2007, benefits
complying" with its 2005 decision.
In order to implement the Supreme Court's decision, Alaska statutes and regulations
should be modified and supplemented to address the issue of same-sex partners. As the
legislature was not informed of the remedy ordered until after it adjourned and its next regular
session would not occur until after the Court-ordered deadline, the State proposed to establish
a system of same-sex partner benefits by regulation. The Superior Court, which was ordered to
monitor compliance on remand, accepted this method of implementation.
With the assistance of the Department of Law, the Department of Administration
undertook to draft the necessary regulations to comply with the Supreme Court's order. Draft
regulations were published on September 1,2006 and available for public comment throughout
September. Having modified the regulations based upon those comments and further
departmental review, I adopted final regulations on October 13,2006. The regulations were
forwarded to the Department of Law for review and ultimately arrived in the office of the
Lieutenant Governor for filing. Two circumstances have arisen that warrant taking additional
steps to ensure orderly compliance with the Supreme Court's mandate.
First,, the Superior Court has repeatedly intervened in the process of developing the
regulations. It has gone so far as to require me to provide advance notice of regulations that are
not yet final, arguably infringing on the powers of the Executive Branch and your prerogatives.
The Superior Court has already suggested in a lengthy written order and oral comments on the
record that the criteria we have adopted are likely constitutionally ism. On the heels of these
forewarnings-all given before the regulations are even effective-the ACLU moved for an order
requiring me essentially to adopt the regulations proposed by the MOA. Those regulations
provide little or no safeguards against fraud on the State health and retirement systems. They
do not ensure that only those persons that the Supreme Court intended to receive the benefits
at issue do so. In essence, a mere roommate relationship could suffice for entitlement to State
health and retirement benefits.
Furthermore, since retirement rights (both health and survivorship) once given cannot be
constitutionally rescinded, imposition of the MOA's criteria arguably create an irrevocable
liability to the State of unknown financial consequences. I am deeply concerned that the State
is but one court order away from a new and expensive retirement tier for thousands of State
employees and PERS /TRS retirees.
The second circumstance suggesting supplemental action to implement the Supreme
Court order is the October 23, 2006 letter to you from the Lieutenant Governor in which he
challenges my authority to adopt the proposed regulations. First he argues that I have no
authority to issue any regulation regarding the active health care plan. Next he claims that
regulations cannot be adopted that have the effect of contravening the specific language of a
statute [i.e. who can be provided health and retirement benefits under the State plans). Finally,
he asserts that a policy matter of this significance should be addressed by the legislature, not
imposed by departmental regulation. Consequently he has refused to file the regulations.
While the Department of Law has concluded that I do have the authority to adopt the
regulations, the Lieutenant Governor raises serious "separation of powers" concerns that
deserve careful consideration. Caution and good public policy demand that I recommend the
legislature be given the opportunity to address this matter.
Therefore, I believe that it is in the State's best interest for you to issue a proclamation
calling the Alaska Legislature into special session as soon as possible to consider how to
implement the Supreme Court's order of June 1,2006. A policy matter of this import is best
addressed by the legislature and governor. In the interim we will continue down the regulatory
path, but to be absolutely certain that these benefits can lawfully be provided I recommend that
a special session be called for November 13,2006.
Scott J. Nordstrand