Same-sex military spouse is eligible for a Permanent Fund dividend, Alaska attorney general says

JUNEAU - The state of Alaska said Friday that it erred in sending a woman a letter citing her same-sex marriage in denying her application for a state oil-wealth fund check.

Attorney General Kevin Clarkson said a denial letter never should have been sent, but he called Denali Nicole Smith's complaint, filed this week in federal court, a "false lawsuit." The Department of Law, in a release, said Smith and an attorney were notified earlier this month that she was eligible to be paid a Permanent Fund Dividend.

Heather Gardner, an attorney for Smith, said she would not litigate the case in the media or on Twitter. But she said it's "not unexpected" that the state would try to say Smith is the only person who has been affected. "I would say ... stay tuned, because we're not done yet," she said.

The department said the Permanent Fund Dividend Division, which is charged with determining eligibility for checks, is unaware of anyone "similarly situated" to Smith.

"The Division will continue to investigate to verify that this is indeed the case and take corrective action if necessary," the release said.

The department said an agency booklet still included a provision, struck down as unconstitutional, that same-sex marriages are not recognized. The department said applications that could have been denied under that law were to have been put on hold pending clarification from the Department of Law, but a denial inadvertently went to Smith.

The booklet is being updated "to ensure this inadvertent mistake does not happen again," the release states.

In late 2014, 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.

The lawsuit seeks payment of a dividend for Smith. It also seeks payment of dividends to anyone denied checks since 2014 based on laws or a provision in the state constitution barring same-sex marriage. Additionally, it asks that the state identify anyone who has been "denied the right to marry, recognition of their marriage, or benefits of marriage" based on the now-nullified laws.

Gardner said the lawsuit is being brought under a provision of federal law that does not require that one exhaust administrative remedies.

Clarkson, in a since-deleted tweet, called Smith's lawsuit "pointless." He said her 2019 application is listed as "Eligible - Not Paid" and hasn't been paid because she has not provided a correct address. "Big non-issue here," the tweet said.

Department of Law spokeswoman Cori Mills said by email that the department "decided we need to double check our facts before posting and make sure we are clearly talking about the correct years." The release was issued hours later, late Friday afternoon.

Attached to Smith's lawsuit was 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."

The lawsuit says Smith is an Alaska resident who last year married and moved with military wife Miranda Murphy to Florida, where Murphy is stationed. The lawsuit identifies Murphy as an Alaska resident.

It claims representatives of the Permanent Fund Dividend Division told Smith that if she were married to a man, she would not be denied a check. This year's check was $1,606.

Gov. Mike Dunleavy, in the release issued by the law department, said the dividend 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” dividend, he said.