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Attorney for same-sex military spouse disputes state’s characterization of PFD denial as a mistake

JUNEAU — An attorney for a woman suing over initial denial of an Alaska oil-wealth fund check because of her same-sex marriage said a state employee indicated there have been other similar cases.

Attorney Caitlin Shortell, in a court filing Monday, did not identify the employee who works for the agency that determines eligibility for Alaska Permanent Fund Dividends, citing fears of retaliation, but said the person told her they would provide information to assist in Denali Nicole Smith’s lawsuit and testify under subpoena.

The person said after Smith sued last week, management asked employees to identify cases from this year denied based on absence of an accompanying same-sex spouse and directed payment of those checks, Shortell wrote. The person said about seven cases had been identified, according to Shortell.

Shortell wrote the employee told her a division director under a prior administration said it would take legislative action or litigation to stop enforcement of laws barring recognition of same-sex marriage.

Five years ago, a federal judge deemed Alaska’s ban on same-sex marriage unconstitutional. In 2015, the U.S. Supreme Court gave same-sex couples nationally the right to marry.

In a statement Friday, Gov. Mike Dunleavy, who took office last December, said the check should go to all eligible Alaskans, regardless of marital status.

“We are examining our regulations and processes to ensure those who are qualified get their” checks, he said.

The Department of Law said Friday there is no one to the Permanent Fund Dividend Division’s knowledge who is “similarly situated” to Smith. It said the division “will continue to investigate to verify that this is indeed the case and take corrective action if necessary.”

Cori Mills, a Department of Law spokeswoman, said by email Monday that the information in the release “represented the true and accurate information that the State knew as of last Friday when it was sent out.”

Smith’s lawsuit included an Aug. 23 denial letter that cited provisions of state law barring recognition of same-sex marriage and said the denial was based on the fact Smith was “absent from Alaska 206 days during 2018 accompanying her same sex spouse.” Smith last year married her military wife, Miranda Murphy, and moved with her to Florida, where Murphy is stationed, according to the lawsuit.

According to the Department of Law, a division booklet still included a provision, struck down as unconstitutional, that same-sex marriages are not recognized. Applications that could have been denied under that law were supposed to be put on hold pending clarification from the Department of Law, but Smith’s application instead was inadvertently denied, the department said.

“The Division remedied this denial in October, following legal advice that the statute was unconstitutional and should not be enforced,” the department release said. Earlier this month, Smith and an attorney were notified Smith was eligible for a check, the department said. This year’s check was $1,606.

Alaska Attorney General Kevin Clarkson, in that release, said the denial letter should not have been sent but said the division “promptly remedied the action once it figured out its mistake.” He called the litigation a “false lawsuit.”

The state on Monday asked that the case be dismissed.

Shortell, in her filing, said evidence suggests a “stated and ongoing policy and practice” of the state “to continue to discriminate against same sex couples and refuse to recognize their marriages” despite a prior court order.

Shortell said the “eligibility determination reversal and scheduling of payment of a 2019 PFD to Denali Nicole Smith did not obviate the need to bring the case.”

Smith, in a court filing, said she first became aware of the denial in September, after contacting the division to check on the status of her application.

Smith confirmed she was notified in early November that she was scheduled to receive a check but said she failed to get an explanation as to what changed and whether she could face a similar situation again.

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