    Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
    Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
    303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
    corrections@appellate.courts.state.ak.us.



             THE SUPREME COURT OF THE STATE OF ALASKA

STATE OF ALASKA and        )
MUNICIPALITY OF ANCHORAGE, )                          Supreme Court No. S-14521
                           )
               Appellants, )                          Superior Court No. 3AN-10-09519 CI
                           )
     v.                    )                          OPINION
                           )
JULIE A. SCHMIDT, GAYLE    )                          No. 6898 – April 25, 2014
SCHUH, JULIE M. VOLLICK,   )
SUSAN L. BERNARD, FRED W.  )
TRABER, and LAURENCE       )
SNIDER,                    )
                           )

               Appellees.  )

                           )



            Appeal from the Superior Court of the State of Alaska, Third
            Judicial District, Anchorage, Frank A. Pfiffner, Judge.

            Appearances: Kevin M. Saxby and Lance B. Nelson, Senior
            Assistant Attorneys General, Anchorage, and Michael C.
            Geraghty, Attorney General, Juneau, for Appellant State of
            Alaska. Pamela D. Weiss, Assistant Municipal Attorney, and
            Dennis A. Wheeler, Municipal Attorney, Anchorage, for
            Appellant Municipality of Anchorage. David Oesting and
            Roger Leishman, Davis Wright Tremaine LLP, Anchorage,
            and Thomas Stenson and Leslie Cooper, ACLU of Alaska
            Foundation, Anchorage, for Appellees.

            Before: Fabe, Chief Justice, Winfree, Stowers, and Maassen,
             Justices, and Eastaugh, Senior Justice.* [Carpeneti, Justice,
             not participating.]

             EASTAUGH, Senior Justice.

             WINFREE, Justice, concurring. 


I.    INTRODUCTION
             The State of Alaska and the Municipality of Anchorage exempt from
municipal property taxation $150,000 of the assessed value of the residence of an owner
who is a senior citizen or disabled veteran. But the full value of the exemption is
potentially unavailable if a person who is not the owner’s spouse also occupies the
residence.   Contending that the exemption program violates their rights to equal
protection and equal opportunities, three Anchorage same-sex couples in committed,
long-term, intimate relationships sued the State and the Municipality. The superior court
ruled for all three couples. The State and Municipality appeal.
             As to two of the couples, we affirm. Same-sex couples, who may not marry
or have their marriages recognized in Alaska, cannot benefit or become eligible to benefit
from the exemption program to the same extent as heterosexual couples, who are married
or may marry. The exemption program therefore potentially treats same-sex couples less
favorably than it treats opposite-sex couples even though the two classes are similarly
situated. The identified governmental interests do not satisfy even minimum scrutiny.
The exemption program therefore violates the two couples’ equal protection rights as
guaranteed by article I, section 1 of the Alaska Constitution.
             As to the third couple, we reverse the ruling in their favor because we
conclude that the program does not exempt a residence from taxation unless the senior



      *
             Sitting by assignment made under article IV, section 11 of the Alaska
Constitution and Alaska Administrative Rule 23(a).

                                           -2-                                      6898
citizen or veteran has some ownership interest in it. If the senior citizen or veteran has
no actual ownership interest, the program treats a same-sex couple the same as a
heterosexual couple by denying the exemption to both couples, rendering marital status
and the ability to marry irrelevant. Because the senior citizen member of the third couple
had no ownership interest in the residence, that couple had no viable equal protection
claim.
              We also vacate and remand the award of attorney’s fees.
II.      FACTS AND PROCEEDINGS
         A.   The Tax Exemption Program
              By statute, specified classes of Alaska municipalities may levy property
taxes.1 Also by statute, particular classes of property are exempt or partially exempt
from municipal taxation.2 The exemption pertinent here is for real property owned and
occupied as the primary residence by a municipal resident who is either (a) 65 years of
age or older or (b) a disabled veteran.3 The exemption’s implementing regulations are
entitled “Senior Citizen and Disabled Veteran Property Tax Exemption.”4               For
convenience, we will sometimes refer to the exemption as the “senior citizen and
disabled veteran exemption” and to eligible applicants as “senior citizens” and “disabled
veterans.”    Likewise, we will sometimes refer to the exemption statute and the
implementing regulations collectively as the “exemption program.”
              The statute authorizing this exemption has existed since 1972, when the


         1
              AS 29.45.010.
         2
              E.g., AS 29.45.030(a), (e), (j), (l).
         3
              AS 29.45.030(e).
         4
             The tax exemption’s implementing regulations are set out in Alaska
Administrative Code (AAC) Title 3, Chapter 135 (2012).

                                             -3-                                    6898

legislature adopted a property tax exemption for senior citizens.5 In 1984 the legislature
extended the exemption to disabled veterans.6 The subsection providing the senior
citizen and disabled veteran exemption was recodified as AS 29.45.030(e) in 1985.7
              The pertinent parts of the exemption statute partially exempt a home’s
assessed value from municipal property taxation.          The applicable subsection is
AS 29.45.030(e). It provides in relevant part:
              The real property owned and occupied as the primary
              residence and permanent place of abode by a resident who is
              (1) 65 years of age or older; (2) a disabled veteran; or (3) at
              least 60 years of age and the widow or widower of a person
              who qualified for an exemption under (1) or (2) of this
              subsection is exempt from taxation on the first $150,000 of
              the assessed value of the real property. . . . Only one
              exemption may be granted for the same property, and, if two
              or more persons are eligible for an exemption for the same
              property, the parties shall decide between or among
              themselves who is to receive the benefit of the exemption.
              Real property may not be exempted under this subsection if
              the assessor determines, after notice and hearing to the
              parties, that the property was conveyed to the applicant
              primarily for the purpose of obtaining the exemption.
In sum, the statute exempts $150,000 of the assessed value of a home owned and
occupied as the primary residence by a senior citizen (a person 65 or older)8 or a disabled




       5
              Ch. 118, § 2, SLA 1972; see also former AS 29.53.020(e) (1972).
       6
              Ch. 40, §§ 1S4, SLA 1984; see also former AS 29.53.020(e) (1984).
       7
              Ch. 74, § 12, SLA 1985.
       8
              3 AAC 135.120(8).

                                           -4-                                       6898

veteran.9 Alaska Statute 29.45.030(g) requires the State, if appropriations are sufficient,
to reimburse municipalities for tax revenues lost by operation of the exemption statute.
                 The pertinent implementing regulation — 3 AAC 135.085 — provides in
relevant part:
                 (a) When an eligible person and his or her spouse occupy the
                 same permanent place of abode, the reimbursement described
                 in AS 29.45.030(g) applies, regardless of whether the
                 property is held in the name of the husband, wife, or both.

                 ....

                 (c) If property is occupied by a person other than the eligible
                 applicant and his or her spouse, an exemption, to be eligible
                 for reimbursement, applies only to the portion of the property
                 permanently occupied by the eligible applicant and his or her
                 spouse as a place of abode.[10]
Two aspects of the regulation’s subsections are significant here: (1) So long as the
eligible applicant and the applicant’s spouse occupy the residence, reimbursement is
available regardless of which spouse holds title; and (2) if a person other than the eligible
applicant and the applicant’s spouse occupies the residence, reimbursement is available
only with respect to the portion occupied by the eligible applicant and his or her spouse.
                 The regulation’s text ostensibly only addresses the extent of the State’s
obligation to reimburse a municipality for lost tax revenues. But its title — “Eligibility”
— could be read to imply that it addresses exemption eligibility, and the parties have
litigated this dispute as though the regulation defines exemption eligibility. Moreover,
the Municipality seems to believe that it must interpret eligibility in accordance with the
regulation. No words in the statute or regulation explicitly deny an exemption for that

       9
                 AS 29.45.030(i)(1) defines “disabled veteran.”
       10
                 3 AAC 135.085(a), (c).

                                              -5­                                      6898
portion of the property occupied by a person other than the eligible applicant or the
eligible applicant’s spouse. But the parties read the regulation to contain such a denial.
They therefore interpret the program as denying the exemption for that portion of the
property occupied by a person other than the spouse of an eligible applicant. For
purposes of this appeal, we assume their interpretation is correct.
               As a result of this interpretation, if the assessed value of the residence is less
than $300,000 and the ineligible partner occupies half the property, the full value of the
exemption will not be granted to the unmarried couple.11
               The exemption program applies to residences owned and occupied by
senior citizens or disabled veterans in the Municipality of Anchorage.12                    The
Municipality administers the exemption program in accordance with the statute and the
regulations.
      B.       The Plaintiff Couples
               Six plaintiffs who comprised three same-sex couples brought this lawsuit,
alleging that the members of each couple “live together in long-term, committed,
interdependent, intimate relationships (‘domestic partners’), with the intention of
remaining in such relationships for life.”13 All resided in Anchorage.


      11
             If the assessed value is $300,000 or more, the full value of the $150,000
exemption applies regardless of the couple’s marital status — even if the ineligible
partner occupies half of the property. Co-occupancy does not limit the full value of the
exemption in that situation.
      12
               Anchorage Municipal Code (AMC) 12.15.015(D)(1)S(2) (2012).
      13
              One couple married in Canada in 2007; another married in California in
2008. The Municipality has not disputed the nature of the couples’ relationships or the
facts surrounding their exemption applications, and the State conceded that all three
couples are in committed, same-sex relationships.
                                                                         (continued...)

                                              -6-                                          6898

             The first couple — Julie Schmidt and Gayle Schuh — co-owned their
Anchorage home as tenants in common. Each had a 50% ownership interest in the home.
In 2010, the year they filed suit, their home’s assessed value was $254,200. Schmidt was
then 67 years old and Schuh was 62. Because Schmidt was 65 or older, she was eligible
to apply for the tax exemption. Because Schuh was under 65, she was not eligible to
apply. Schmidt had applied for the exemption in 2008. The application form required
Schmidt to list the percentage of the home that she owned and the percentage that she
occupied. She indicated that she owned and occupied 50% of the property. An affidavit
prepared by State Assessor Steve Van Sant discussing the effect of marriage on the
senior citizen exemption for 2010 stated that because Schmidt had only a 50% ownership
interest in the home, only 50% of the home’s assessed value was exempt. Van Sant
calculated that if Schmidt and Schuh had been married, their property tax in 2010 would
have been “roughly $359.31 less.” In effect, because Schuh and Schmidt were not
married, they could not achieve the tax exemption’s maximum benefit.14
             The second couple — Julie Vollick and Susan Bernard — co-owned their
Anchorage home as tenants in common from 2004 until 2010. Each had a 50%
ownership interest in the home. In 2010 their home’s assessed value was $232,600.
Vollick had served in the United States Air Force for 20 years and was injured in the line



      13
              (...continued)
              We use “same-sex couple” or “same-sex domestic couple” to mean two
people of the same biological sex who are in a long-term, committed, intimate domestic
partnership, and who would marry if they could. The three couples in this case met this
definition. See Alaska Civil Liberties Union v. State, 122 P.3d 781, 784 n.5 (Alaska
2005); see also AS 39.50.200(a)(4) (“ ‘[D]omestic partner’ means a person who is
cohabiting with another person in a relationship that is like a marriage but that is not a
legal marriage . . . .”).
      14
             See AS 29.45.030(e); see also 3 AAC 135.085(a), (c).

                                           -7-                                      6898

of duty. She qualified as a “disabled veteran” under AS 29.45.030(i)(1), making her
eligible for the tax exemption. Bernard did not qualify as a disabled veteran or senior
citizen. Vollick applied for the disabled veteran exemption in 2008. Her application
indicated that she owned and occupied 50% of the property. State Assessor Van Sant
stated in his affidavit that Vollick’s 50% ownership limited the disabled veteran
exemption available for the home. He explained that if Vollick and Bernard had been
married, they could have obtained a disabled veteran exemption based on 100% of the
assessed value, and they would have owed “roughly $528.76 less” in property taxes in
2010.15
             The third couple — Fred Traber and Laurence Snider — did not formally
co-own their Anchorage home; according to their complaint, the home was “held in
Traber’s name.” The complaint also alleged that “both partners view the home as
belonging to both of them.” In 2010 the home’s assessed value exceeded $150,000. In
2010 Snider was 69 years old, but although he was a senior citizen, the State contended
that he could not then apply for the exemption because he did not own the condominium.
Traber was then 62 and therefore did not qualify as a senior citizen. The record does not
reflect whether Traber or Snider ever applied for the senior citizen exemption.16
      C.     The Lawsuit
             The couples sued the State of Alaska and the Municipality of Anchorage,
alleging that the tax exemption program is unconstitutional. They claimed that the
program discriminates against them based on sexual orientation because they are barred
from marrying or having their marriages recognized in Alaska.

      15
            Vollick and Bernard separated in 2011, but no party argues that their
separation moots their claims.
      16
              No party argues that the absence of an exemption application for that
residence is significant.

                                           -8-                                      6898
             The couples requested a judgment declaring that the tax exemption program
violates the Alaska equal protection clause; they also requested an injunction requiring
the State and Municipality to apply the exemption program on terms identical to those
that would apply if the couples were in recognized marriages.
             The State argued that the superior court should not reach the merits of the
couples’ equal protection claim because: (1) the Alaska Constitution’s Marriage
Amendment, article I, section 25, precludes the claim; (2) the couples are not situated
similarly with married couples; and (3) the tax exemption program is not facially
discriminatory. The Municipality argued that because state law dictates the terms of the
exemption, the State was in the best position to address the couples’ arguments. The
Municipality did not otherwise address the merits of the couples’ claims.
             Superior Court Judge Frank A. Pfiffner granted summary judgment for all
six plaintiffs. Applying minimum scrutiny, the court held that the tax exemption
program violated the Alaska Constitution’s equal protection clause. The court did not
reach the couples’ alternative arguments regarding heightened scrutiny. The court
declared that the program violated article I, section 1 of the Alaska Constitution “by
imposing a spousal limitation that facially discriminates against same-sex domestic
partners.” It permanently enjoined the State and Municipality from administering the
program in a manner that treated same-sex domestic partners differently from married,
opposite-sex couples. And it awarded the couples 100% of their attorney’s fees. The
State and Municipality appeal. The State’s appeal primarily focuses on the merits of the
summary judgment; the Municipality’s appeal exclusively challenges the attorney’s fees
award.




                                          -9-                                     6898

III.   STANDARD OF REVIEW
              “We review a grant or denial of summary judgment de novo.” 17 Courts
grant summary judgment when no genuine issue of material fact remains and the moving
party is entitled to judgment as a matter of law.18
              “Whether two entities are similarly situated is generally a question of
fact,”19 reviewed for clear error.20 Identifying the applicable level of scrutiny in an equal
protection case is a question of law.21        “Likewise, identifying the nature of the
challenger’s interest and assessing the importance of the governmental interest and the
fit between that interest and the means chosen to advance it, present questions of law.”22
We apply our independent judgment to questions of law, and we adopt the rule of law




       17
              Alaska Civil Liberties Union v. State, 122 P.3d 781, 785 (Alaska 2005)
(citing City of Kodiak v. Samaniego, 83 P.3d 1077, 1082 (Alaska 2004); Powell v.
Tanner, 59 P.3d 246, 248 (Alaska 2002)) (reviewing de novo grant and denial of
summary judgment).
       18
              Mitchell v. Teck Cominco Alaska Inc., 193 P.3d 751, 757 (Alaska 2008)
(citing Miller v. Safeway, Inc., 170 P.3d 655, 658 (Alaska 2007)) (discussing standard
for grant of summary judgment).
       19
             Alaska Inter-Tribal Council v. State, 110 P.3d 947, 967 (Alaska 2005)
(citing Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 n.2 (2d Cir. 2001))
(reviewing for clear error finding that two classes were not similarly situated).
       20
              See id. at 956 (citing Vezey v. Green, 35 P.3d 14, 19-20 (Alaska 2001)).
       21
             Alaska Civil Liberties Union, 122 P.3d at 785 (citing Reichmann v. State,
Dep’t of Natural Res., 917 P.2d 1197, 1200 & n.6 (Alaska 1996); Sonneman v. Knight,
790 P.2d 702, 704 (Alaska 1990)) (determining de novo the applicable level of scrutiny).
       22
             Id. (citing Sonneman, 790 P.2d at 704–06) (conducting de novo equal
protection analysis).

                                            -10-                                       6898

“most persuasive in light of precedent, reason, and policy.”23 “We apply our independent
judgment when interpreting constitutional provisions or statutes.”24 “A constitutional
challenge to a statute must overcome a presumption of constitutionality.”25
             “Whether there are sufficient findings for informed appellate review is a
question of law.”26 We apply our independent judgment to resolve questions of law,27
and therefore exercise our independent judgment in considering whether a court has
provided sufficient factual findings or legal explanation to permit meaningful appellate
review. We apply that standard in deciding whether sufficient factual findings or legal
explanations support the superior court’s attorney’s fees award. “We review the alleged
inadequacy of a trial court’s fact findings to determine whether they give [us] a clear
indication of the factors considered important by the trial court or allow us to determine
from the record what considerations were involved.”28 We also apply the independent


      23
            State v. Anthony, 810 P.2d 155, 156S57 (Alaska 1991) (quoting Guin v. Ha,
591 P.2d 1281, 1284 n.6 (Alaska 1979)) (internal quotation marks omitted) (citing
Sonneman, 790 P.2d at 704) (describing independent judgment standard) reh’g granted,
816 P.2d 1377 (Alaska 1991).
      24
             Alaska Civil Liberties Union, 122 P.3d at 785 (citing Alaska Trademark
Shellfish, LLC v. State, 91 P.3d 953, 956 (Alaska 2004); State, Commercial Fisheries
Entry Comm’n v. Carlson, 65 P.3d 851, 858 (Alaska 2003)) (applying independent
judgment to constitutional and statutory questions).
      25
             Id. at 785 (citing Brandon v. Corr. Corp. of Am., 28 P.3d 269, 275 (Alaska
2001)); see also Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183, 192
(Alaska 2007) (discussing the presumption of constitutionality).
      26
             Hooper v. Hooper, 188 P.3d 681, 692 (Alaska 2008).
      27
             Id. at 685.
      28
            Borchgrevink v. Borchgrevink, 941 P.2d 132, 137 (Alaska 1997) (as quoted
in Hooper, 188 P.3d at 692).

                                          -11-                                      6898

judgment standard of review in considering whether the trial court applied the law
correctly in awarding attorney’s fees under AS 09.60.010(c).29 We “exercise our
independent judgment in reviewing whether a trial court has applied the appropriate legal
standard in making its prevailing party determination.”30
              When a judgment is reversed in part and affirmed in part, we exercise our
independent judgment in deciding whether any part of an attorney’s fees award must be
vacated and reconsidered on remand.31
IV.    DISCUSSION
       A.     The Marriage Amendment Does Not Bar The Couples’ Claims.
              We must first address the State’s argument that the Marriage Amendment
altogether forecloses these couples’ equal protection claims.
              Article I, section 1 of the Alaska Constitution provides in part: “This
constitution is dedicated to the principles that . . . all persons are equal and entitled to
equal rights, opportunities, and protection under the law . . . .”32 This passage is often

       29
              State v. Jacob, 214 P.3d 353, 358 (Alaska 2009).
       30
              Id.
       31
              Cf. Kenai Peninsula Borough v. Port Graham Corp., 871 P.2d 1135, 1142
(Alaska 1994) (vacating and remanding attorney’s fees award for recalculation after
reversing in part and affirming in part the superior court judgment, despite our agreement
with the superior court’s legal conclusions concerning the nature and scope of the award
authorized by the applicable statute).
       32
              Article I, section 1 states in full:
              This constitution is dedicated to the principles that all persons
              have a natural right to life, liberty, the pursuit of happiness,
              and the enjoyment of the rewards of their own industry; that
              all persons are equal and entitled to equal rights,
              opportunities, and protection under the law; and that all
                                                                               (continued...)

                                             -12-                                      6898

referred to as the equal protection clause.33
              In 1998 Alaska voters amended the Alaska Constitution by adopting the
Marriage Amendment, which became article I, section 25 of the constitution.34 Its full
text provides: “To be valid or recognized in this State, a marriage may exist only
between one man and one woman.”35 The Marriage Amendment effectively precludes
same-sex couples from marrying in Alaska or having their out-of-state marriages
recognized in Alaska.
              Constitutional provisions that potentially conflict must be harmonized if
possible.36 We have recognized that “[t]he state equal protection clause cannot override
more specific provisions in the Alaska Constitution.”37 The State contends that the
Marriage Amendment precludes the couples’ equal protection claims because it permits
the State to treat married couples differently from unmarried couples, and because
Alaska’s equal protection clause cannot “override” the Marriage Amendment’s “more


         32
              (...continued)
              persons have corresponding obligations to the people and to
              the State.
         33
              See, e.g., Alaska Civil Liberties U nion v. State, 122 P.3d 781, 785 (Alaska
2005).
         34
              S.J. Res. 42, 20th Leg., 2d Sess. (Alaska 1998).
         35
              Alaska Const. art. I, § 25.
         36
             Alaska Civil Liberties Union, 122 P.3d at 786 (quoting C HESTER JAMES
A NTIEAU , CONSTITUTIONAL CONSTRUCTION § 2.15, at 27 (1982)) (citing Owsichek v.
State, Guide Licensing & Control Bd., 763 P.2d 488, 496 (Alaska 1988); State v.
Ostrosky, 667 P.2d 1184, 1191 (Alaska 1983); Park v. State, 528 P.2d 785, 786–87
(Alaska 1974); A NTIEAU , supra, § 2.06, at 18–20).
         37
             Id. at 787 (citing Bess v. Ulmer, 985 P.2d 979, 988 n.57 (Alaska 1999);
A NTIEAU , supra note 36, § 2.16, at 27–28).

                                            -13-                                    6898

specific provision.”
              Before turning to the Marriage Amendment, we briefly address the State’s
invocation of AS 25.05.013(b), which provides that “[a] same-sex relationship may not
be recognized by the state as being entitled to the benefits of marriage.”38 The State does
not argue that AS 25.05.013(b) controls the outcome of this case. It instead asserts that
the statute “strongly supports the idea that, as a matter of law, married couples are not
similarly situated to unmarried couples, including those of the same sex.” The State
notes that AS 25.05.013(b) was not invalidated by Alaska Civil Liberties Union v. State
(“ACLU”)39 and is therefore presumptively constitutional.40
              Even assuming, as the State argues, that the statute demonstrates that
married couples are not situated similarly to unmarried couples, the statute draws a


       38
              AS 25.05.013, entitled “Same-sex marriages,” states in full:
                       (a) A marriage entered into by persons of the
                       same sex, either under common law or under
                       statute, that is recognized by another state or
                       foreign jurisdiction is void in this state, and
                       contractual rights granted by virtue of the
                       marriage, including its termination, are
                       unenforceable in this state.
                       (b) A same-sex relationship may not be
                       recognized by the state as being entitled to the
                       benefits of marriage.
       39
              122 P.3d at 781-95.
       40
              The couples do not argue that AS 25.05.013(b) is unconstitutional, and the
superior court did not consider its constitutionality. The plaintiffs in Brause v. State,
Dep’t of Health & Soc. Servs., 21 P.3d 357, 360 (Alaska 2001), challenged its
constitutionality, but because we held that their claim was not ripe for adjudication, we
did not consider the statute’s constitutionality. Id. Its constitutionality was not raised
in ACLU.

                                            -14-                                     6898

distinction that is legally irrelevant to deciding whether the Marriage Amendment
precludes the couples’ equal protection claims. As we will see, that issue turns on
whether the Marriage Amendment is more specific than the equal protection clause, and
does not turn on whether married couples and unmarried couples are differently situated.
And even as to the merits of the equal protection claim, the State’s asserted distinction
is irrelevant, because the correct classes for comparison are same-sex couples who wish
to marry and opposite-sex couples who wish to marry, not married couples and
unmarried couples.
             The State implies that the comments of the sponsor of the bill that resulted
in AS 25.05.013(b) are germane to the meaning of the Marriage Amendment. We are
unconvinced that the history of the 1996 statute has any bearing on the meaning of the
1998 amendment to the constitution, especially considering the brevity and limited scope
of the Marriage Amendment’s text. Although AS 25.05.013(b) expressly prohibits
same-sex couples from being entitled to the benefits of marriage, the legislature did not
include a prohibition on benefits in the text of the resolution proposing the Marriage
Amendment.41 The State has directed us to no legislative history suggesting that the
words of the Marriage Amendment should be interpreted as denying benefits to same-sex
couples.42 Moreover, the ballot measure that submitted the proposed amendment to the



      41
             AS 25.05.013 was enacted in 1996. Ch. 21, § 2, SLA 1996. The legislature
in 1998 adopted the resolution that proposed the Marriage Amendment. Voters approved
the Marriage Amendment in 1998. S.J. Res. 42, 20th Leg., 2d Sess. (Alaska 1998).
      42
             As we observed in ACLU, a state constitutional amendment that expressly
denied benefits to same-sex couples would arguably offend the federal Constitution. 122
P.3d at 786 n.20 (citing Romer v. Evans, 517 U.S. 620 (1996) (holding that an
amendment to the Colorado Constitution that repealed all local and statewide laws
prohibiting sexual-orientation discrimination violated the federal equal protection
clause)).

                                          -15-                                     6898

voters said nothing about denying or limiting benefits.43 It did not refer to, quote, or
paraphrase AS 25.05.013(b).
             We now return to the effect of the Marriage Amendment here. In ACLU,
same-sex partners challenged a public-employee benefits program.44 An employee’s
spouse was eligible to receive benefits under the program, but an employee’s same-sex
domestic partner was not.45      We ultimately held that the program violated the
challengers’ equal protection rights.46 But before reaching the merits of the couples’
claims in that case, we first rejected the Municipality of Anchorage’s contention that the
Marriage Amendment precluded the challengers’ equal protection claims.47 Our holding
rejecting that contention would seem to dispose of the State’s contention here that the
Marriage Amendment precludes the couples’ equal protection claims.
             But in contending that the Marriage Amendment precludes the equal
protection claims of same-sex couples, the State attempts to distinguish ACLU in two
ways. First, it argues that ACLU was limited to employment benefits. Second, it argues
that ACLU involved the right, recognized in article I, section 1 of the Alaska
Constitution, to obtain the rewards of one’s own industry, whereas here “there is no
corresponding constitutional guaranty of a right to tax exemptions.”


      43
              The published statement supporting adoption of the ballot measure instead
stated that the measure “does not ‘target’ anybody or ‘deny’ anybody their rights.”
Loren Leman, Statement in Support, in A LASKA 1998 O FFICIAL ELECTION PAMPHLET ­
BALLOT M EASURE 2 (1998), available at http://www.elections.alaska.gov/pub_oep.php.
      44
             Alaska Civil Liberties Union, 122 P.3d at 783.
      45
             Id.
      46
             Id. at 795.
      47
          Id. at 785S87. The State did not argue in ACLU that the Marriage
Amendment foreclosed the ACLU plaintiffs’ equal protection claims.

                                          -16-                                      6898

              These two arguments fail to explain why ACLU’s holding regarding the
Marriage Amendment does not dispose of the State’s contention that the Marriage
Amendment controls here. ACLU involved claims based on the denial of benefits to
public employees,48 and those claims indeed implicated rights potentially protected by
the constitution.49 But those circumstances had no bearing on our holding in ACLU that
the Marriage Amendment did not preclude the plaintiffs’ equal protection claims. The
core issue regarding the effect of the Marriage Amendment was whether it conflicted
with the equal protection clause, and if so, whether it controlled as the more specific
provision.50 As to that core issue, we concluded that the two constitutional provisions
did not conflict, and that the Marriage Amendment did not preclude the plaintiffs’ equal
protection claims.51 That conclusion did not turn on the circumstance that the plaintiffs’
claims implicated a specific right to receive the rewards of one’s industry (a right we did
not even discuss in holding that the Marriage Amendment did not control).52 Instead,
we reached that conclusion because the Marriage Amendment did not explicitly permit
the public employers to engage in practices that potentially violated the equal protection
clause.53 Because the Marriage Amendment did not address the benefits there at issue,


       48
              Id. at 786, 794.
       49
               Id. at 794 & n.60 (describing Alaska Constitution article I, section 1 and
article XII, section 6 as guaranteeing “all Alaskans ‘the rewards of their own industry’ ”
and requiring merit public employment).
       50
              Id. at 786-87.
       51
              Id.
       52
             Id. at 785-87. We instead discussed that right when we reached the
conclusion of our equal protection analysis. Id. at 794 & n.60.
       53
              Id. at 786-87.

                                           -17-                                      6898

we held that it did not foreclose the plaintiffs’ equal protection claims. That holding was
not limited to equal protection claims of public employees, even though that happened
to be the context in which the dispute arose.
              We conclude that what we said and held in ACLU regarding the Marriage
Amendment controls here:
              The Marriage Amendment effectively precludes same-sex
              couples from marrying in Alaska, but it does not explicitly or
              implicitly prohibit public employers from offering to their
              employees’ same-sex domestic partners all benefits that they
              offer to their employees’ spouses. It does not address the
              topic of employment benefits at all.
                     Nor have we been referred to any legislative history
              implying that, despite its clear words, the Marriage
              Amendment should be interpreted to deny employment
              benefits to public employees with same-sex domestic
              partners. The Marriage Amendment could have the effect of
              foreclosing the present challenge only if it could be read to
              prohibit public employers from offering benefits to their
              employees’ same-sex domestic partners. But nothing in its
              text would permit that reading . . . .[54]
Similarly, the Marriage Amendment does not explicitly or implicitly prohibit the State
from offering the same property tax exemption to an eligible applicant who has a same-
sex domestic partner that the State offers to an eligible applicant who has a spouse. Nor
does the Marriage Amendment explicitly or implicitly permit the State to deny benefits
to same-sex couples who demonstrate that they are similarly situated to married couples
who receive those benefits.
              The couples’ arguments here are like those of the ACLU plaintiffs.55 The



       54
              Id. at 786 (footnotes omitted).
       55
              See id. at 787.

                                           -18­                                      6898
couples here do not argue that the Marriage Amendment violates Alaska’s equal
protection clause or that they have the right to marry. As Judge Pfiffner correctly
reasoned in quoting from ACLU, “the Marriage Amendment speaks only to the definition
of marriage,” not to the benefits of marriage.56 The superior court also correctly relied
on ACLU’s recognition that even though the Marriage Amendment “effectively prevents
same-sex couples from marrying,” it “does not automatically permit the government to
treat them differently in other ways.”57
                The Marriage Amendment does not bar the couples’ equal protection claims
here.58
                B.	   The Tax Exemption Program Facially Discriminates Between
                      Same-Sex Couples And Opposite-Sex Couples.
                A plaintiff alleging an equal protection violation must show either that
facially neutral state action has a discriminatory purpose59 or that the state action is
facially discriminatory.60 When a “law by its own terms classifies persons for different



          56	
                Id. at 786-87 (superior court’s emphasis).
          57	
                Id.
          58
               The State does not expressly challenge the couples’ standing to sue, but
asserts that the terms “widow” and “widower” found in AS 29.45.030(e) are not relevant
here. If that assertion were meant to imply an objection to the couples’ standing, it
would ignore the words of the pertinent regulation. It is undisputed that none of the
plaintiffs here is, or can become, a “spouse,” “husband,” or “wife” of his or her partner.
See 3 AAC 135.085(a), (c).
          59
             See Alaska Inter-Tribal Council v. State, 110 P.3d 947, 956 (Alaska 2005)
(quoting Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 273–74 (1979); Vill. of Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264–65 (1977); Washington v. Davis,
426 U.S. 229, 239–42 (1976)).
          60
                Alaska Civil Liberties Union, 122 P.3d at 788.

                                            -19-	                                   6898

treatment,” the law is facially discriminatory.61
               The words of the tax exemption statute and regulations create a
classification between married couples and unmarried couples.62 Because same-sex
partners cannot become a married couple,63 the exemption program’s classification grants
benefits to a class of persons who have the legal status of husband, wife, or spouse that
it denies to the class of persons who cannot achieve that status. Reading the Marriage
Amendment together with the exemption statute and related regulation,64 two conclusions
are unavoidable: (1) Same-sex couples cannot marry or have their marriages recognized
in Alaska,65 and (2) because they cannot marry, same-sex couples cannot obtain the
benefits of the tax exemption to the same extent as married couples.66
               Judge Pfiffner correctly observed that “[i]n Alaska, a marital classification
facially discriminates based on an individual’s sexual orientation.” He reasoned with
regard to this case that because the exemption program expressly refers to “widow,”
“widower,” “spouse,” “husband,” and “wife,” it facially discriminates based on sexual
orientation.   Judge Pfiffner’s reasoning tracks our analysis in ACLU, where we
explained:


      61
            Id. (quoting JOHN E. N OWAK & RONALD D. ROTUNDA , CONSTITUTIONAL
LAW § 14.4, at 711 (7th ed. 2004)).
      62
           See AS 29.45.030(e) (benefitting a “widow” or “widower”); see also
3 AAC 135.085(a), (c) (benefitting a “spouse,” “husband,” or “wife”).
      63
               Alaska Const. art. I, § 25.
      64
              We read related provisions together, not in isolation. See Underwater
Constr., Inc. v. Shirley, 884 P.2d 150, 155 (Alaska 1994).
      65
               Alaska Const. art. I, § 25.
      66
               See AS 29.45.030(e); see also 3 AAC 135.085.

                                             -20-                                     6898

              By restricting the availability of benefits to “spouses,” the
              benefits programs “by [their] own terms classif [y]” same-sex
              couples “for different treatment.” Heterosexual couples in
              legal relationships have the opportunity to marry and become
              eligible for benefits. In comparison, because of the legal
              definition of “marriage,” the partner of a homosexual
              employee can never be legally considered as that employee’s
              “spouse” and, hence, can never become eligible for benefits.
              We therefore conclude that the benefits programs are facially
              discriminatory.[67]
              The State argues that the difference in treatment is based not on marital
status, but on long-standing distinctions between types of property interests (tenancy in
common rather than tenancy by the entirety); it also argues that the exemption laws are
“facially neutral.” Additionally, the State asserts (somewhat inconsistently) that the
exemption program permissibly distinguishes between married and unmarried couples.
              The State’s contentions are problematic for two reasons.
              First, as the exemption program pertains to this lawsuit, marital status is the
only distinction the exemption statute and regulation draw; they contain no distinction,
explicit or implicit, based on differences in property interests. In fact, by extending the
exemption to married couples regardless of whether the residence “is held in the name
of the husband, wife, or both,”68 the regulation makes the type of property interest
irrelevant.
              Second, even if the exemption’s full value were conferred only on couples

       67
               Alaska Civil Liberties Union v. State, 122 P.3d 781, 789 (Alaska 2005)
(alterations in original) (footnotes omitted). In ACLU, we recognized that the benefits
programs became discriminatory only after the adoption of the Marriage Amendment in
1998. Id. at 789 n.38. But we explained that “allowing a discriminatory classification
to remain in force is no different than giving it the force of law in the first place.” Id.
The same analysis applies here.
       68
              3 AAC 135.085(a).

                                            -21-                                       6898

with a type of property interest — tenancy by the entirety — that is exclusively available
to married couples, the program would facially discriminate against same-sex couples
who could never acquire that type of interest.69 Because one type of property interest is
categorically unavailable to a class of persons, distinctions based on that type of property
ownership would create a facial classification.
              We therefore conclude that the tax exemption program facially
discriminates between same-sex couples and opposite-sex couples.
       C.	    Committed Same-Sex Couples Who Want To Marry Are Similarly
              Situated to Opposite-Sex Couples Who Want To Marry.
              Plaintiffs who assert equal protection violations “must demonstrate that the


       69
              Per AS 34.15.110(b), married couples in Alaska who acquire real property
co-own the property as tenants by the entirety unless the conveyance or devise specifies
otherwise or unless they create a community trust under AS 35.77.100. Tenancy by the
entirety is “[a] common-law estate in which each spouse [owns] the whole of the
property. An estate by the entirety is based on the legal fiction that a husband and wife
are a single unit.” BLACK ’S LAW D ICTIONARY 627 (9th ed. 2009); see Faulk v. Estate
of Haskins, 714 P.2d 354, 356 (Alaska 1986) (holding that husband and wife’s failure
to recite marital status in the deed did not defeat tenancy by the entirety); see also Smith
v. Kofstad, 206 P.3d 441, 445 (Alaska 2009) (discussing survivorship for tenants by the
entirety). Per AS 34.15.140(c), a spouse who owns real property may convey it to “self
and the other spouse” as tenants by the entirety or as tenants in common.
               In contrast, unmarried persons (including domestic partners) in Alaska who
acquire real property together hold it as tenants in common. By law, they cannot
establish a tenancy by the entirety. AS 34.15.130 (abolishing joint tenancies except
interests in personalty and tenancy by the entirety); see also AS 34.15.110(a). Tenancy
in common is “[a] tenancy by two or more persons, in equal or unequal undivided shares,
each person having an equal right to possess the whole property but no right of
survivorship.” BLACK ’S LAW D ICTIONARY 1604 (9th ed. 2009); see Voss v. Brooks, 907
P.2d 465, 468 n.2 (Alaska 1995) (noting that unmarried couples could not hold property
as tenants by the entirety). “Tenants in common are presumed to take equal undivided
interests, but this presumption is rebuttable.” Voss, 907 P.2d at 469 (citing D.M. v. D.A.,
885 P.2d 94 (Alaska 1994)).

                                           -22-	                                      6898

challenged law treats similarly situated persons differently.”70 Such claims require us to
decide which classes are to be compared and determine whether those classes are
similarly situated or whether differences between the classes justify different treatment.71
              The State argues that the classes for comparison should be unmarried co­
owners and married co-owners. Judge Pfiffner rejected that argument and compared the
plaintiff couples (who are same-sex couples in marriage-like relationships) to married
couples.
              We decided above that the tax exemption program draws a facial
classification between same-sex couples and opposite-sex couples.72 Although the
superior court defined the classes somewhat differently — it compared same-sex couples
and married couples — this definitional difference is inconsequential. Because opposite-
sex couples can marry and have their marriages recognized in Alaska, for purposes of
this appeal, there is essentially no difference between married couples and opposite-sex
couples who want to marry.
              We must next determine whether same-sex and opposite-sex couples are
similarly situated with respect to the benefits at issue. The superior court found that
married couples and same-sex domestic partners are similarly situated because they make


       70
              Alaska Civil Liberties Union, 122 P.3d at 787 (citing Alaska Inter-Tribal
Council v. State, 110 P.3d 947, 966 (Alaska 2005); Lawson v. Helmer, 77 P.3d 724, 728
(Alaska 2003)).
       71
              Alaska Inter-Tribal Council, 110 P.3d at 967 (“If it is clear that two classes
are not similarly situated, this conclusion ‘necessarily implies that the different legal
treatment of the two classes is justified by the differences between the two classes.’ ”
(quoting Lauth v. State, 12 P.3d 181, 187 (Alaska 2000))) (citations omitted).
       72
             Cf. Alaska Civil Liberties Union, 122 P.3d at 788 (“[T]he proper
comparison is between same-sex couples and opposite-sex couples, whether or not they
are married.”).

                                           -23-                                       6898

similar long-term commitments to each other, including commitments to co-own their
homes.
                The State argues that committed same-sex couples are not similarly situated
to married couples because only married couples own property as tenants by the entirety.
This argument merely recites one potential aspect of marriage: a married couple’s ability
to own property as tenants by the entirety. But the State has not explained what it is
about tenancy by the entirety that could justify denying same-sex couples equal access
to the tax exemption. The only justification the State identifies is based on marital status,
a difference that leads back to the constitutional issue. (To the extent the State’s
argument bears on the importance of governmental interests, we will discuss it when we
apply the three-part analysis for equal protection claims in Alaska.)
                Moreover, tenancy by the entirety could not be the basis for distinguishing
between these classes. First, married couples do not necessarily co-own their residences
as tenants by the entirety.73 Second, the exemption program makes the form of title
irrelevant.74
                The couples argue that the couples in this case “have cared for and
supported each other, built and shared homes together, and combined finances. Their
relationships are like those of committed opposite-sex couples in every way except that
they cannot marry under Alaska law.” In ACLU, we considered similar arguments and
noted:

         73
                The members of a married couple do not necessarily co-own their
residence. One spouse might have owned the residence before the marriage, or might
inherit it after the couple marries. And there are statutory exceptions to tenancy by the
entirety for property acquired by a couple during their marriage: A conveyance or devise
may expressly declare otherwise, or the married couple may create a community trust.
AS 34.15.110(b); AS 34.77.100.
         74
                3 AAC 135.085(a).

                                            -24-                                       6898

               Many same-sex couples are no doubt just as truly closely
               relat[ed] and closely connected as any married couple, in the
               sense of providing the same level of love, commitment, and
               mutual economic and emotional support, as between married
               couples, and would choose to get married if they were not
               prohibited by law from doing so.[75]
For purposes of analyzing the effects of the exemption program, we hold that committed
same-sex domestic partners who would enter into marriages recognized in Alaska if they
could are similarly situated to those opposite-sex couples who, by marrying, have entered
into domestic partnerships formally recognized in Alaska.
         D.	   The Tax Exemption Program Treats Same-Sex Domestic Couples And
               Opposite-Sex Couples Differently.
               We must next determine whether the challenged program treats these
similarly situated classes unequally.76 The State maintains that the program treats all
unmarried couples equally because no unmarried couples can obtain the full exemption
to the same extent that married couples can. We rejected this argument in ACLU.77 We
there held that the law treats same-sex couples differently from opposite-sex couples if
it prevents same-sex couples from becoming eligible for the benefits at issue.78 We said
there:
               The municipality correctly observes that no unmarried
               employees, whether they are members of same-sex or
               opposite-sex couples, can obtain the disputed benefits for


         75
              Alaska Civil Liberties Union, 122 P.3d at 791 (alteration in original)
(internal quotation marks omitted).
         76
              Id. at 787 (“Article I, section 1 of the Alaska Constitution mandates equal
treatment of those similarly situated . . . .”) (internal quotation marks omitted).
         77
               Id. at 788.
         78	
               Id.

                                           -25-	                                   6898

             their domestic partners. But this does not mean that these
             programs treat same-sex and opposite-sex couples the same.
             Unmarried public employees in opposite-sex domestic
             relationships have the opportunity to obtain these benefits,
             because employees are not prevented by law from marrying
             their opposite-sex domestic partners. In comparison, public
             employees in committed same-sex relationships are
             absolutely denied any opportunity to obtain these benefits,
             because these employees are barred by law from marrying
             their same-sex partners in Alaska or having any marriage
             performed elsewhere recognized in Alaska. Same-sex
             unmarried couples therefore have no way of obtaining these
             benefits, whereas opposite-sex unmarried couples may
             become eligible for them by marrying. The programs
             consequently treat same-sex couples differently from
             opposite-sex couples.[79]
             This reasoning applies equally here. As we explained in ACLU, the
Marriage Amendment dictates that only heterosexual couples can become “spouses.”80
Likewise, opposite-sex couples may marry and obtain the full benefit of the exemption,
but same-sex couples may not. We affirm the superior court’s finding that the exemption
program treats similarly situated people unequally.
      E.	    The Tax Exemption Program Violates The Equal Protection Rights Of
             Schmidt, Schuh, Vollick, and Bernard.
             Having decided that the tax exemption program is facially discriminatory
and that it treats similarly situated people differently, we must apply the three-part
sliding-scale approach to equal protection under the Alaska Constitution. Our equal
protection clause “protects Alaskans’ right to non-discriminatory treatment more




      79
             Id. (footnotes and citations omitted).
      80
             Id. at 788S89.

                                         -26­                                    6898
robustly than does the federal equal protection clause.”81 “To implement Alaska’s more-
stringent equal protection standard, we have adopted a three-step, sliding-scale test that
places a progressively greater or lesser burden on the state, depending on the importance
of the individual right affected by the disputed classification and the nature of the
governmental interest at stake . . . .”82 Our sliding-scale approach involves a familiar
process:
                    First, it must be determined at the outset 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 . . . . Depending upon the primacy of the interest
             involved, the state will have a greater or lesser burden in
             justifying its legislation.
                    Second, an examination must be undertaken of 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. Once again, the state’s burden will differ in
             accordance with the determination of the level of scrutiny
             under the first stage of analysis. At the low end of the sliding
             scale, we have held that a substantial relationship between
             means and ends is constitutionally adequate. At the higher
             end of the scale, the fit between means and ends must be


      81
            State, Dep’t of Health & Soc. Servs. v. Planned Parenthood of Alaska, Inc.,
28 P.3d 904, 909 (Alaska 2001) (citing State v. Anthony, 810 P.2d 155, 157 (Alaska
1991)).
      82
            Alaska Civil Liberties Union, 122 P.3d at 787 (quoting Malabed v. N. Slope
Borough, 70 P.3d 416, 420S21 (Alaska 2003)) (internal quotation marks omitted).

                                           -27-                                     6898

              much closer. If the purpose can be accomplished by a less
              restrictive alternative, the classification will be invalidated.[83]
              1.	    Minimum scrutiny resolves this case.
              Government action that burdens only economic interests generally receives
only minimum scrutiny.84 Because the tax exemption program affects the couples’
economic interests, it is subject to at least minimum scrutiny. Because minimum scrutiny
resolves this case, we do not need to consider the couples’ contention that we should
apply heightened scrutiny.
              2.	    The governmental interests are legitimate, but the classification
                     is not substantially related to those interests.
              Under minimum scrutiny, the governmental interests advanced by the
challenged law need only to be legitimate.85 Minimum scrutiny requires only a “fair and
substantial relation” between the means and the legitimate goals of the challenged law.86
              The State argues that the marital classification advances governmental
interests “in cost control, administrative efficiency, and promotion of marriage.”
Although we held in ACLU that these same interests failed to justify the marital
classification,87 the State contends that its interest in cost-control is greater here than it
was in ACLU because tax exemptions must be narrowly construed to maintain the


       83
           Alaska Civil Liberties Union, 122 P.3d at 789 (citing Matanuska-Susitna
Borough Sch. Dist. v. State, 931 P.2d 391, 396S97 (Alaska 1997)).
       84
            Id. at 790 (citing Church v. State, Dep’t of Revenue, 973 P.2d 1125, 1130
(Alaska 1999)).
       85
              Id. at 790 (citing Matanuska-Susitna Borough, 931 P.2d at 396S97).
       86
             Planned Parenthood of Alaska, Inc., 28 P.3d at 911 (quoting Isakson v.
Rickey, 550 P.2d 359, 362 (Alaska 1976)).
       87
              Alaska Civil Liberties Union, 122 P.3d at 790S93.

                                             -28-	                                      6898

broadest possible tax base and to equalize the tax burden. It also contends that its interest
in administrative efficiency is greater here because there is a larger pool of persons —
“all potentially eligible real property owners as opposed to identifiable public
employees” — who would apply and be eligible for the disputed benefits. Finally, it
argues that providing equal benefits to same-sex couples does not encourage opposite-
sex couples to marry.
              The State’s proffered interests are legitimate. But the classification here is
not sufficiently related to those interests.
              First, we have repeatedly explained that “cost savings alone are not
sufficient government objectives under our equal protection analysis.” 88 The government
can adequately protect its tax base and minimize cost without discriminating between
similarly situated classes.
              Second, the State allows married couples to establish eligibility for the
exemption merely by making a sworn statement. No other proof of marital status is
required. Thus, the State’s assertion that sworn statements will not suffice for same-sex
couples is unpersuasive. The State lists potential impediments to verifying that same-sex
couples are in marriage-like relationships, but it has not explained why the initial
application cannot require disclosure of sufficient information to satisfy threshold
municipal concerns about a given relationship. The State seems to suppose that no initial
disclosure can be sufficient, but we are unwilling to make that assumption. We rejected
an equivalent argument in ACLU.89
              Third, we can assume that providing benefits to spouses promotes marriage

       88
              Herrick’s Aero-Auto-Aqua Repair Serv. v. State, Dep’t of Transp. & Pub.
Facilities, 754 P.2d 1111, 1114 (Alaska 1988); see also Alaska Pac. Assurance Co. v.
Brown, 687 P.2d 264, 272 (Alaska 1984).
       89
              Alaska Civil Liberties Union, 122 P.3d at 791S92.

                                               -29-                                    6898
among adults who can marry. But “restricting eligibility to persons in a status that same-
sex domestic partners can never achieve . . . cannot be said to be related to that
interest.”90 The State has not explained how denying benefits to couples who cannot
marry will promote marriage in couples who can. We assume, as the couples argue, that
giving the full benefit only to married couples will not encourage same-sex domestic
couples to leave their partnerships and enter into heterosexual relationships with an
intention to marry.
              The State’s additional arguments are unpersuasive. For example, the State
argues that same-sex couples will be able to obtain the exemption program’s full benefit
in some circumstances. This contention is irrelevant, because it is undisputed that the
full benefit of the exemption program was unavailable to these two couples, and would
likewise be unavailable to any other same-sex domestic couple in similar circumstances.
              Because the exemption program’s marital classification does not bear a
substantial relationship to the interests identified by the State, we conclude that the
exemption program fails minimum scrutiny and violates these couples’ rights to equal
protection.
      F.      An Exemption Applicant Must Have An Ownership Interest.
              The State contends that because they were not eligible for the senior citizen
exemption, it was error to rule for Fred Traber and Laurence Snider, the third couple.
Alaska Statute 29.45.030(e) exempts $150,000 of assessed value of a “property owned
and occupied as the primary residence and permanent place of abode by a [senior citizen
or disabled veteran].” (Emphasis added.) The State argues that the statute requires that
the senior citizen both occupy and own the residence. Because Fred Traber was the “sole
owner” but was not over 65 and Laurence Snider was over 65 “but had no ownership


      90
              Id. at 793.

                                           -30-                                      6898
interest,” the State contends that neither met the statute’s eligibility requirements. It also
argues that the superior court erred in reading the relevant regulation, 3 AAC 135.085(a),
as creating an exception to the ownership requirement.
              We must therefore decide whether the senior citizen must have an
ownership interest in the residence.
              We begin with the words of the statute. They exempt a residence “owned
and occupied” by a senior citizen.91 They seem to express necessary conditions for the
exemption. The conjunction “and” between “owned” and “occupied” implies that the
senior citizen must both own and occupy the residence. No words in the statute imply
that a residence is exempt if the senior citizen has no ownership interest in it. We
therefore read the statute to require the senior citizen to occupy the residence and to have
some ownership interest in it. Per the statute’s words, if only one member of a couple
is a senior citizen, but that member has no ownership interest in the residence, the
exemption does not apply.
              In granting relief, the superior court relied on 3 AAC 135.085(a), which
states, “[w]hen an eligible person and his or her spouse occupy the same permanent place
of abode . . . the reimbursement applies, regardless of whether the property is held in the
name of the husband, wife, or both.” (Emphasis added.) The superior court reasoned
that “[t]he regulation language clearly extends the Tax Exemption to eligible applicants
who share a home with their spouse, but who do not own the home.”
              The State asserts that the regulation’s reference to an “eligible person” must
incorporate the statute’s eligibility requirements, including the requirement of ownership.
              Traber and Snider respond that if they could marry, Snider would receive




       91
              AS 29.45.030(e).

                                            -31-                                        6898
the full exemption even though the property was held in Traber’s name.92 Citing the
regulation, they also argue that the State treats a senior citizen (or disabled veteran)
spouse as owning 100% of the property, even if he or she does not. They claim that
Snider is eligible to claim the exemption as a senior citizen even though the home is held
exclusively in Traber’s name.
              The implementing regulation relied on by the superior court and by the
couples, 3 AAC 135.085(a), specifies when the State will reimburse municipalities for
the tax revenues lost as a result of the statutory exemption. It does not explicitly excuse
or ameliorate any exemption requirements set by the enabling statute.
              We do not read the regulation as making it irrelevant that a senior citizen
has no ownership interest at all. The regulation does make it irrelevant that the property
“is held in the name of the husband, wife, or both.”93 That language means that the
identity of the title holder is not itself determinative,94 but the regulation does not say that
actual ownership is irrelevant. Had that been the promulgators’ intention, we would
expect the regulation to refer to “ownership,” not title (“held in the name of”). And to
read the regulation to make ownership altogether irrelevant would cause it to conflict
with the plain words of the statute. The best way to avoid any such conflict is to read
“eligible person” in the regulation to refer to a person who is eligible, per the statute’s



       92
              AS 29.45.030(e).
       93
              3 AAC 135.085(a).
       94
              Cf. AS 34.15.010(d), which implicitly recognizes a distinction between a
spouse’s interest in a family home as memorialized by the title and a property interest
entitled to protection. Unless the spouse appears on the title, that statute provides that
the spouse’s failure to join in the deed or conveyance of the family home does not affect
the validity of the transaction so long as the spouse does not timely sue to set aside the
conveyance. Id.

                                             -32-                                         6898

requirements, for the senior citizen or disabled veteran exemption.95 Given the statute’s
plain words and the absence of any contrary implication in the statute, we are unwilling
to read the regulation to mean that the senior citizen or disabled veteran does not need
to have any actual ownership interest at all in the property. We therefore reject the
reading the superior court adopted.
              Even assuming the expansive reading of the regulation proposed by the
couples and adopted by the superior court were permissible, the word “eligible” in
3 AAC 135.085(a) is, at best for the couples, ambiguous. The couples may assume that
anyone benefitted by the exemption program, i.e., either a senior citizen or a disabled
veteran who both owns and occupies the residence, or the spouse who owns the
residence occupied by the senior citizen or disabled veteran, is “eligible.” But it would
be odd to rely on an ambiguous regulation to invert the meaning of an unambiguous
statute. And most importantly, “eligible” as it is used in the controlling subsection of the
statute cannot be read to suggest that a senior citizen or disabled veteran applicant does
not need to have some ownership interest in the residence.96 Other passages in the


       95
              When interpreting an ambiguous regulation, we give it an interpretation that
avoids putting the regulation into conflict with its enabling statute. See State v.
Anderson, 749 P.2d 1342, 1343S44 (Alaska 1988) (quoting AS 44.62.030) (“[N]o
regulation adopted is valid or effective unless consistent with the statute and reasonably
necessary to carry out the purpose of the statute.”); see also Wilber v. State, Commercial
Fisheries Entry Comm’n, 187 P.3d 460, 464 (Alaska 2008) (reviewing regulations to
determine whether they conflict with statutory or constitutional provisions); see also
Progressive Ins. Co. v. Simmons, 953 P.2d 510, 516 (Alaska 1998) (quoting City of
Anchorage v. Scavenius, 539 P.2d 1169, 1174 (Alaska 1975)) (“To determine whether
two statutory provisions stand in conflict, we must interpret them together, in context
with other pertinent provisions rather than in isolation, and with a view toward
reconciling conflict and producing ‘a harmonious whole.’ ”).
       96
              AS 29.45.030(e) (providing in part that “if two or more persons are eligible
                                                                           (continued...)

                                           -33-                                       6898

various exemption statutes use “eligible” in ways that imply that the legislature used the
term to refer to those particular persons, e.g., senior citizens or disabled veterans, the
legislature intended the exemption statutes to benefit.97 These statutory passages do not
imply that spouses who are not themselves either senior citizens or disabled veterans are
also “eligible.” Indeed, these statutes do not discuss spouses at all, except in the context
of widows or widowers, categories that necessarily exclude a person whose senior citizen
or disabled veteran spouse is still alive.
              “Whether the regulation is consistent with the statute involves statutory
interpretation, which is a question of law, to which we apply our independent




       96
             (...continued)
for an exemption for the same property,” they shall decide among themselves who is to
receive the benefit).
       97
               See for example, AS 29.45.030(e) (using “eligible” consistently with our
interpretation); AS 29.45.030(f) (providing in part that “[t]o be eligible for [the senior
citizen or disabled veteran] exemption . . . the municipality may by ordinance require that
an individual also meet requirements under one of the following paragraphs: (1) the
individual shall be eligible for a permanent fund dividend . . . .”); AS 29.45.040(a)
(providing for a “tax equivalency payment” to a resident who “is eligible” if the resident
is at least 65 years old or a disabled veteran or at least 60 years old and the widow or
widower “of a person who was eligible for payment under (1) or (2) . . . .”);
AS 29.45.040(b)S(d) (using “eligible” in a way that implies it refers to the direct
beneficiaries of the exemption); AS 29.45.052(b) (requiring an individual applying for
a below-poverty-level tax deferral to submit “proof of eligibility”); AS 29.45.053(b)
(requiring that “if two or more are eligible” for a law-enforcement officer exemption,
they shall decide among themselves who is to benefit).
               AS 29.45.030(e), in language parallel to the text of AS 29.45.040(a) quoted
above, extends the senior citizen/disabled veteran exemption to an owner/occupant who
is at least 60 years old and is “the widow or widower of a person who qualified for” the
senior citizen or disabled veteran exemption. (Emphasis added.) It is probable the
legislature intended “qualified” to mean the same thing as “eligible.”

                                             -34-                                     6898

judgment.”98     When interpreting statutes and regulations, seemingly conflicting
provisions must be harmonized unless such an interpretation would be at odds with
statutory purpose.99
               Reading the statute and the regulation together,100 we hold that a residence
is not exempt unless the senior citizen or disabled veteran has an ownership interest in
it. The statute does not require the senior citizen or disabled veteran to be the sole
owner. And the program, as defined by statute and regulation, does not specifically
require that the ownership interest be reflected in the title. But we do not see how
property can be “owned” by a senior citizen or a disabled veteran unless he or she has
some actual ownership interest in the property.
               The superior court gave three additional reasons for rejecting the State’s
contention that the regulation did not extend the statutory exemption to this residence.
It first noted that the Municipality had granted a full exemption to another married couple
although the “non-eligible spouse solely owned” their shared home. That exemption
was irrelevant because the statute’s language controls. If the exemption was granted to
that couple in error, its grant neither determines a valid reading of the statute nor sets a
standard that must be followed for a similarly situated couple.101 And if it was granted

       98
            State, Dep’t of Natural Res. v. Greenpeace, Inc., 96 P.3d 1056, 1061 n.10
(Alaska 2004) (citing Payton v. State, 938 P.2d 1036, 1041 (Alaska 1997)).
       99
              Progressive Ins. Co. v. Simmons, 953 P.2d 510, 517 (Alaska 1998) (“The
goal of reconciling conflict must thus give way when harmony between potentially
conflicting provisions can be achieved only at the price of an interpretation at odds with
statutory purpose.”).
       100
              See Underwater Constr., Inc. v. Shirley, 884 P.2d 150, 155 (Alaska 1994)
(holding that related provisions should be read together).
       101
               See Flisock v. State, Div. of Ret. & Benefits, 818 P.2d 640, 644 n.5 (Alaska
                                                                              (continued...)

                                            -35-                                      6898

properly, it must be because the non-titled spouse nonetheless had an ownership interest
that satisfied the statute.
              The superior court also thought it significant that Alaska Association of
Assessing Officers Standard 1.(b) states in part that the exemption applies “to the entire
value of the property irrespective of that percentage of ownership of the applicant.” But
as the State points out, the text of the standard presupposes that an “eligible applicant”
and his or her spouse own the residence; the text therefore incorporates the same notions
of eligibility we discussed above. And the State correctly reads this standard to
implicitly tie eligibility to ownership because the standard expressly addresses the
situation “when partial property ownership exists.” The standard does not imply, much
less say, that a residence is exempt if the senior citizen or disabled veteran has no
ownership interest in it.
              Finally, the superior court thought it particularly important that the
“legislature intended the exemption to apply” even in those few situations when the
applicant spouse does not own or partially own the residence. It reasoned that if the two
men were married, the senior citizen “would be able to claim the exemption.” It
concluded that there was a viable equal protection claim.
              We assume for discussion’s sake that if a married couple in Traber and
Snider’s identical situation were eligible to receive the exemption, equal protection
would not permit denying the exemption to Traber and Snider. But as we have seen,
AS 29.45.030(e) would not exempt the residence of a married couple if only one member
was a senior citizen or disabled veteran but that member had no ownership interest
whatsoever.     Because Traber and Snider were treated no differently from that


       101
             (...continued)
1991) (holding claimant was not entitled to agency’s mistaken application of statutory
provision).

                                          -36-                                      6898
hypothetical married couple, there was no equal protection violation if Snider in fact had
no ownership interest in the property.
              The superior court granted complete summary judgment to Traber and
Snider and denied the governments’ cross-motion. It did not determine whether Snider
had any ownership interest in the residence, but it confirmed that the parties had agreed
that there were no genuine issues of material fact. Traber and Snider litigated their
claims without preserving any possible factual dispute about whether Snider had any
actual ownership interest that would satisfy AS 29.45.030(e).102
              We have concluded as a matter of law that the senior citizen or disabled
veteran must both occupy and have an ownership interest in the residence. There is no
genuine factual dispute about whether Snider is an owner of the residence. We
consequently reverse that portion of the judgment in favor of Traber and Snider. As to
their claims, we remand for entry of judgment for the State and Municipality.
       G.     The Attorney’s Fee Award Requires Further Proceedings.
              The State and Municipality argue that it was error to grant the couples’
motion for an award of 100% of their attorney’s fees, $135,475.50. The State and



       102
             The State argues here that Snider had “no ownership interest” in the
residence, and the superior court appeared to assume that he had none. The couples’
complaint did not allege that Snider was in fact an owner of the residence, nor does the
couples’ appellate brief.
               The complaint instead alleged that the home “is held in Traber’s name, but
the couple has made it their home together and both partners view the home as belonging
to both of them.” Their appellate brief makes the same assertion. The parties’ cross-
motions for summary judgment raised no factual dispute about whether Snider in fact
had any ownership interest in the residence. In short, Snider and Traber have not
asserted that Snider had any legally cognizable ownership interest in the residence or that
an alternative ground — that Snider in fact has some qualifying ownership interest —
exists for affirming the court’s judgment in their favor.

                                           -37-                                      6898

Municipality contend that it was an abuse of discretion not to make the findings needed
to address their arguments opposing the fees motion.
              The couples’ motion sought $135,475.50 for 458.8 billed hours of services.
The parties filed memoranda discussing whether the couples qualified as constitutional
claimants and whether equitable factors applied. The State and Municipality argued that
the requested fees were excessive, reflected duplicative services, and were much higher
than those awarded in ACLU, the case the couples claimed controlled. The Municipality
also argued that the couples did not establish that there was insufficient economic
incentive to bring the litigation, and that other factors, including the relative simplicity
of the case, justified a reduction in the award. On appeal, the State and Municipality
argue that the court made no findings resolving their objections.
              We first observe that our reversal of the portion of the judgment entered in
favor of Traber and Snider requires reconsideration of the fee award, aside from the
reasons the State and Municipality advance. Because Traber and Snider are no longer
prevailing parties, fees may not be awarded to them. We leave it to the parties on
remand to explore the reversal’s effect on any claim for attorney’s fees.
              Because the same disputes may recur on remand, we now turn to the issues
raised by the State and Municipality.
              The fees order awarding the couples the full amount requested,
$135,475.50, briefly stated that the couples had “properly” moved for fees under Alaska
Civil Rule 82 and AS 09.60.010 and that the requested fees were reasonable in terms of
hours spent and rates billed. It did not explain how Rule 82 or AS 09.60.010 applied,
did not state whether the couples were prevailing constitutional claimants for purposes
of AS 09.60.010, did not discuss whether the couples had sufficient financial incentive
to sue absent their constitutional claims, and did not discuss whether Rule 82(b)(3)
factors or other factors were relevant. It did not address any of the governments’

                                           -38-                                       6898

arguments, including their arguments that the billings reflected excessive and duplicative
services.
              The couples argue that as the prevailing parties, they can recover fees under
Rule 82 and AS 09.60.010(c)(1), and that the superior court adequately explained its
decision by referring to Rule 82 and AS 09.60.010. They rely on Krone v. State,
Department of Health & Social Services for the proposition that courts should generally
award full reasonable attorney’s fees to couples who prevail on their constitutional
claims.103
              Krone addressed the interplay of Rule 82 and AS 09.60.010.104 We there
explained that AS 09.60.010 does not preclude the court from considering equitable
factors, including the Rule 82(b)(3) factors, in determining whether the fees were
reasonable.105 But we cautioned that a trial court’s “ultimate conclusion should be
reached only after express consideration of all factors relevant to a determination of full
reasonable fees for a claimant who prevails on constitutional claims.”106 A court must
make sufficient findings to permit meaningful review of an attorney’s fees award.107 For



       103
            See Krone v. State, Dep’t of Health & Soc. Servs., 222 P.3d 250, 255S56
(Alaska 2009).
       104
              Id.
       105
              Id. at 257S58.
       106
              Id. at 258.
       107
             Simpson v. Murkowski, 129 P.3d 435, 448 n.65 (Alaska 2006) (“[A]
superior court’s order must contain specific findings of fact and conclusions of law to
permit meaningful review by this court.”) (internal quotation marks omitted); S.L. v. J.H.,
883 P.2d 984, 986 (Alaska 1994) (“It has been our practice to remand a case to the
superior court when its findings are not detailed enough or sufficiently explicit to allow
meaningful review.”).

                                           -39-                                      6898

example, in Simpson v. Murkowski the superior court found that the couples were public
interest litigants, but we remanded because the superior court did not explain whether the
couples had sufficient economic incentive to bring the suit.108
              An absence of explicit findings is not necessarily fatal. In Law Project for
Psychiatric Rights, Inc. v. State, we stated, “[b]ecause the superior court’s attorney’s fees
award accords with the presumptive percentages in Rule 82(b)(2) . . . the court need not
offer an explanation of its award.”109 And in State v. Jacob we affirmed the award even
though the superior court did not explicitly find prevailing-party status.110 The bases for
the awards were clear in those cases, so no further explanations were needed.
              But here it is not self-evident from the order or the record how or whether
the superior court resolved the governments’ contentions. The order did not address
their contentions, supported by citations to the billing records, that the hours billed and
services provided by seven experienced attorneys billing at substantial rates were
excessive and duplicative. The award did not accord with the presumptive percentages
set out in Rule 82(b)(2). We cannot tell whether the award took into account any
Rule 82(b)(3) factors or other equitable factors. We cannot assume there was an implicit
conclusion that no Rule 82(b)(3) factors or equitable factors applied.
              And although we can safely assume that the court concluded that the
couples had prevailed on constitutional claims, the court made no finding about whether
the couples had sufficient economic incentive to sue, one of the statutory factors




       108
              129 P.3d at 447S49.
       109
            239 P.3d 1252, 1257 n.25 (Alaska 2010) (quoting Marsingill v. O’Malley,
128 P.3d 151, 163 Alaska 2006)) (internal quotation marks omitted).
       110
              214 P.3d 353, 359-60 (Alaska 2009).

                                            -40-                                       6898

pertinent to awarding full fees.111 The award’s reference to AS 09.60.010 is not self-
explanatory. We cannot assume that there was an implicit finding that the couples had
insufficient economic incentive to sue.
             Because Traber and Snider are no longer prevailing parties, we vacate the
entire fees award and remand for further proceedings.112 Remand will also permit entry
of findings or rulings sufficient for appellate review of subsequent contentions that an
attorney’s fees award, including an award of full fees, on remand was an abuse of
discretion, legally erroneous, or clearly erroneous.
V.    CONCLUSION
             For these reasons, we AFFIRM the superior court’s declaration that “in
combination,” AS 29.45.030(e) and 3 AAC 135.085(a) and (c) violate Alaska’s equal
protection clause “by imposing a spousal limitation that facially discriminates against
same-sex domestic partners.” We likewise AFFIRM the declaration of prevailing party
status as to Schmidt, Schuh, Vollick, and Bernard. As to Snider and Traber, we
REVERSE the ruling that the exemption applied to them and that they had “stated a
viable equal protection claim.” We also REVERSE the order for entry of final judgment
to the extent it declares Snider and Traber to be prevailing parties, and REMAND for


      111
             See AS 09.60.010(d)(2). Moreover, when it executed the order for entry
of final judgment about two months before it entered the order awarding fees, the
superior court struck through language proposed by the couples that would have ruled
“that the plaintiffs are thus ‘constitutional litigants’ within the meaning of [AS]
09.60.010(c) and . . . Rule . . . 82.”
      112
             Remand will give the Municipality an opportunity to elaborate on its
apportionment request. The Municipality asked the superior court to apportion fees pro
rata. We do not need to decide whether that request preserved the issue, because the
couples do not oppose remand on the issue of apportionment, and the State’s reply brief
does not respond to the Municipality’s appellate apportionment argument. Because we
remand for further proceedings, the parties may litigate apportionment on remand.

                                          -41-                                    6898

entry of judgment for the State of Alaska and Municipality of Anchorage on the claims
of Traber and Snider.
             We VACATE and REMAND the attorney’s fee award for the reasons
discussed in Part IV.G.




                                        -42-                                    6898

WINFREE, Justice, concurring.
              I agree with the court’s analysis and decision as it addresses the issues
litigated in the superior court and presented to us in this appeal. Alaska Civil Liberties
Union v. State1 mandates the result — we are bound to follow its precedent and neither
the State of Alaska nor the Municipality of Anchorage contends that it should be
overruled.
              I write separately only to question whether the same result might have been
achieved through a pure statutory interpretation analysis, even though it was not argued
in the superior court or on appeal.
              As we hold today, AS 29.45.030(e) requires that a person claiming a senior
citizen or disabled veteran property tax exemption must have an ownership interest in
the assessed residential real property. The tax exemption applies to the “real property
owned and occupied as the primary residence and permanent place of abode” by an
eligible person.2 But nothing in AS 29.45.030(e) expressly limits the exemption to the
percentage ownership held by the eligible applicant.3 And the connected regulation
regarding the State’s reimbursement to the Municipality provides that when the property
is occupied by two or more persons who are not married, the exemption amount “applies


       1
              122 P.3d 781 (Alaska 2005).
       2
              AS 29.45.030(e). Cf. AS 29.45.160(b) (providing that real property
assessments are “to the record owner” as reflected by the district recorder and that the
person “listed as owner is conclusively presumed to be the legal record owner”).
       3
                Cf. id. The one sentence in this statutory provision that might suggest such
a limitation states that “if two or more persons are eligible for an exemption for the same
property, the parties shall decide between or among themselves who is to receive the
benefit of the exemption.” But, as I have noted, this question was not litigated in the
superior court or contested on appeal — without the benefit of briefing and analysis, it
is difficult to determine what this language means.

                                           -43-                                       6898

only to the portion of the property permanently occupied by the eligible applicant . . . as
a place of abode.”4
              As noted in our comparison of a tenancy by the entirety and a tenancy in
common,5 absent an agreement to the contrary, tenants in common own undivided
interests in real property and have an equal right to possess the entire property.
Accordingly, if any two (or more) unmarried persons are tenants in common of
residential real property used as their primary place of abode, each has the right to
occupy 100% of the property; if one of those persons is an eligible applicant for the tax
exemption, then it may be that the exemption applies to its fullest extent, just as if the
only owners and occupiers were a husband and wife.
              The factual anomaly here is that two of the unmarried couples in this case
owned their primary residence as tenants in common, but the eligible applicant of each
couple expressly stated in her application that she owned and occupied 50% of the
property. It seems to me inconsistent that these couples could state they were in long-
term, committed, marriage-like relationships while at the same time somehow splitting
the occupancy of their residences into separate spheres. I suspect the statements about
occupation were based on a misunderstanding of the law of common tenancy and
undivided possession, and simply mirrored their (undivided) ownership interests.6 Had
the eligible applicants stated that they owned an undivided 50% and occupied 100% of
the residential property, they may well have been entitled to the exemptions based on the



       4
              3 Alaska Administrative Code (AAC) 135.085(c) (2012).
       5
              Op. at 22 n.69.
       6
              I would be surprised if the same mistake were not made by eligible
applicants who were married and holding title to their residence with their spouses as
either tenants by the entirety or tenants in common.

                                           -44-                                      6898

express language of the statute and the related regulation.
              From the record before us, it seems we are faced with the issues addressed
in our decision because the parties all assume the senior citizen and disabled veteran tax
exemption of AS 29.45.030(e) is limited to the eligible applicant’s percentage ownership
interest of the residence, except, due to 3 AAC 135.185(a), in the case of a residence
owned and occupied by a married couple. And if that is true, then today’s decision
correctly addresses it. If, on the other hand, the statutory exemption is allowable in full
with any amount of ownership and full occupation, then today’s decision is unnecessary.




                                           -45-                                      6898

