PFD scheduled to be paid before lawsuit was filed
November 22, 2019
(Anchorage, AK) – Governor Michael J. Dunleavy, Attorney General Kevin Clarkson and the other defendants were unaware of any denial of a permanent fund dividend based on the same-sex marital status of an applicant, until they read the stories in the press yesterday. The governor immediately asked his staff, in consultation with the Department of Law and the Department of Revenue, to begin looking into the incident to determine what occurred and how to fix it. What his staff discovered is that the issue had already been remedied and the plaintiff’s attorney had been notified before the lawsuit was filed. The PFD Division is in the process of updating its manual to ensure this inadvertent mistake does not happen again.
“I was only made aware of this yesterday,” said Governor Dunleavy. “I immediately wanted to get to the bottom of it. The PFD should go to all eligible Alaskans regardless of their marital status. We are examining our regulations and processes to ensure those who are qualified get their PFD.”
According to the Department of Revenue, the PFD division recognizes same-sex spouses. Individual’s spouses who are living out of the state for allowable reasons will be paid under AS 43.23.008(13): “accompanying another eligible resident who is absent for a reason permitted…as the spouse, minor dependent, or disabled dependent of the eligible resident.” A question had been raised this summer based on the Division’s Statutes and Regulations Booklet that still included the requirement from statute that same-sex marriages are not recognized—mirroring the Alaska Constitution’s definition of marriage that was struck down by the court as unconstitutional in 2015. The applications that could have been denied based on this statute were supposed to be put on hold, while the PFD Division sought advice from the Department of Law to ensure it was properly complying with the law. However, Denali Smith’s application inadvertently was denied instead of being placed on hold. The Division remedied this denial in October, following legal advice that the statute was unconstitutional and should not be enforced. Early in November, the Division communicated to the applicant and her attorney that she was eligible to be paid a PFD.
“No one disagrees that the denial letter never should have been sent,” said Attorney General Kevin G. Clarkson. “But the Division promptly remedied the action once it figured out its mistake. As an attorney, 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 her that her client’s dividend was scheduled for payment before the lawsuit was filed. Attorneys have an ethical duty to not file false factual statements with a court.”
The PFD Division will work with the applicant to ensure her PFD gets paid. To the Division’s knowledge, there is no one who is similarly situated to Ms. Smith. The Division will continue to investigate to verify that this is indeed the case and take corrective action if necessary.
As for the lawsuit, the Department of Law will be filing a motion to dismiss, since the remedy requested—a 2019 PFD—was fulfilled before the lawsuit was even filed. Aside from the facts provided in this press release to clarify what occurred, there is no further information that will be provided prior to the motion to dismiss.
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Department Media Contact: Senior Assistant Attorney General Cori Mills at (907) 465-2132 or email@example.com.