Attorney pushes back at Alaska AG's 'false lawsuit' stance
A woman suing Gov. Mike Dunleavy alleging the state initially denied her Permanent Fund dividend application because of her same-sex marriage is not alone, according to a state employee cited in a Monday federal court filing.
Anchorage attorney Caitlin Shortell wrote the employee told her the Department of Revenue’s Permanent Fund division has already identified seven more cases.
Shortell did not identify the employee, fearing retaliation.
She refers to the employee as “they” to further protect the person’s identity, adding in a footnote, “the witness is prepared to testify under subpoena to the facts set forth herin.”
On Nov. 20, Shortell and Heather Gardner filed the federal suit on behalf of Denali Nicole Smith, an Anchorage woman who is living with her military spouse in Florida.
The suit also included Alaska Attorney General Kevin Clarkson, outgoing Revenue Commissioner Bruce Tangeman and Permanent Fund dividend division director Anne Weske.
Smith’s attorneys allege the state “verbally explained to Denali that if she were married to a man, she would not be denied her PFD.”
The attorneys attached a denial letter to the suit, which also cited same-sex statutes the federal courts nullified five years ago.
In October 2014, a federal judge ruled the state’s ban on same-sex marriage as unconstitutional. One year later, the U.S. Supreme Court gave same-sex couples the right to marry.
Late Monday, Clarkson responded to last week's suit, writing: "Defendants are not continuing to enforce any marriage laws that this court or the United States Supreme Court has held to violate any fundamental right."
Clarkson asked the court to dismiss the suit without prejudice.
In Monday’s earlier court filing by Smith's attorneys, Shortell wrote in a Declaration of Counsel, Shortell:
“The PFD employee told me on November 24, 2019 that any children of accompanying same sex spouses would also have been denied their PFDs under the enjoined statutes and that the state has not directed its staff to identify all PFDs unlawfully denied to accompanying same sex spouses or their dependents prior to 2019.”
Two days after Shortell and Gardner filed the suit, the Department of Law issued a news release saying the state had already told Smith she would be receiving a dividend. It prompted Clarkson to characterize Shortell and Gardner’s actions as a “false lawsuit.”
The agency said it was an “inadvertent mistake,” with Clarkson saying, “I am appalled that Ms. Shortell would file a false lawsuit knowing full well that the Division had already changed course and had in fact informed that her client’s dividend was scheduled for payment before the lawsuit was filed.”
In her Monday court filing, Shortell addressed Clarkson’s comments, saying the state ignored the 2014 decision on Alaska’s same-sex marriage ban:
“This matter was filed in spite of the state’s notification that Smith was deemed eligible for her 2019 PFD because the evidence suggests that state officials named had violated the injunction for five years and would not pay similarly situated persons their PFDs from October 12, 2014, to date or in the future without a lawsuit.”
A Department of Law spokeswoman said the state would have no further comment until it files a response to the initial lawsuit.
“The information in the press release represented the true and accurate information that the State knew as of last Friday when it was sent out,” said Senior Assistant Attorney General Cori Mills.
Mills also cited Dunleavy’s pledge to examine “regulations and processes to ensure those who are qualified get their PFD.”
Smith filed her court declaration separate, but related to those filed by attorneys Shortell and Gardner. She said she moved forward when Permanent Fund dividend division personnel could not guarantee future applications under the same circumstances would not be denied.
“I was very upset that the state of Alaska, where I was born and raised, vote, and intend to return after my wife completes her military duty out of state, could discriminate against me and deny me my PFD because I am gay and married to a woman,” she wrote. “I was denied something that every other Alaska resident accompanying their heterosexual spouse of a military member or student required to be stationed out of state receives.”
Smith also wrote that her spouse did receive her dividend in October.
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