Alaska Employment Law

In Roberts v. State, Dep’t of Revenue, 2007 WL  1793195 (Alaska June 22, 2007), the Court affirmed the dismissal of Roberts’ claim that the state (through enforcement of its gaming laws) had infringed on

his substantive due process right to gainful employment and to earn a living or his claim that the State violated his fundamental right to earn a living in violation of article I, section I of the Alaska Constitution and the Privileges and Immunities Clause of the United States Constitution.

In so holding, the Court made some unusual conclusions.  First, it recognized only two levels of interests (fundamental and otherwise), and applied the rational basis test to Roberts’ “right to earn a living” claim:

Under our jurisprudence, rational basis is the appropriate test unless a fundamental right is at issue.

Id. at *8. 

But, under State, Dep’ts of Trans & Labor v. Enserch Alaska Constr., Inc., 787 P.2d 624, 631 (Alaska 1989), “the right to engage in economic endeavor” is an important right that the government may impair “only if its interest in taking the challenged action is important and the nexus between the action and the interest it serves is close.” Laborers Local 942 v. Lampkin, 956 P.2d 422, 429-30 (Alaska 1998). 

Furthermore, Alaska uses the “sliding scale” approach to Equal Protection, rather than the federal binary approach, as illustrated by the Enserch and Lampkin. 

Unless the Court intended to overrule Enserch and Lampkin, the holding in Roberts makes sense only if the Court held Roberts strictly to his characterization of his right as “fundamental” and then (rightly) rejected that characterization.  But that rigor toward a pro se plaintiff such as Roberts is inconsistent with the Court’s refusal, elsewhere in the opinion, to construe Roberts’ pleadings narrowly.