Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

corrections@akcourts.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

PETER METCALFE, Individually and on

behalf of All Others Similarly Situated, 

Appellant, 

v. 

STATE OF ALASKA, 

Appellee. 

) 

) Supreme Court Nos. S-15528/S-15557 

Superior Court No. 1JU-13-00733 CI 

O P I N I O N 

No. 7132 – November 4, 2016 

) 

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) 

) 

) 

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Appeal from the Superior Court of the State of Alaska, First 

Judicial District, Juneau, Trevor Stephens, Judge. 

Appearances: Jon Choate, Choate Law Firm LLC, Juneau, 

for Appellant. Kevin T. Wakley, Assistant Attorney General, 

and Michael C. Geraghty, Attorney General, Juneau, for 

Appellee. 

Before: Fabe, Chief Justice, Winfree and Maassen, Justices. 

[Stowers and Bolger, Justices, not participating.] 

WINFREE, Justice.
 

FABE, Chief Justice, concurring in part and dissenting in part.
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

I. INTRODUCTION 

We previously have held that the legislature cannot diminish a state 

employee’s accrued retirement benefits.1 We also previously have held that if the 

legislature diminishes retirement benefits, those affected may choose between their 

existing benefits and the new benefits.2 The primary issue in this case is whether a 

breach of contract damages claim can arise when existing retirement benefits are 

diminished. We hold there can be no such claim. The secondary issue is whether a 

claimfor declaratoryandinjunctivereliefagainst thediminishmentofexisting retirement 

benefits is subject to a statute of limitations defense. We hold it is not. Here the superior 

court dismissed a contract damages claim and a claim for declaratory and injunctive 

relief based on a statute of limitations defense. We affirm dismissal of the contract 

damages claim on the alternative ground that no such claim exists; we reverse and 

remand the declaratory and injunctive relief claim for further proceedings. 

II. FACTS AND PROCEEDINGS 

Peter Metcalfe was employed briefly by the State in the early 1970s and 

contributed to thePublicEmployees’ Retirement System(PERS). In 1981 Metcalfetook 

a refund of his PERS contributions. Under a statute in effect during Metcalfe’s 

employment and when he took his PERS refund, if Metcalfe later secured State 

1 Hammondv.Hoffbeck,627P.2d1052, 1055-57 (Alaska1981) (holdingthat 

when accrued state retirement benefits are modified any adverse effects must be offset 

by comparable new advantages to survive art. XII, § 7 challenge). 

2 McMullen v. Bell, 128 P.3d 186, 190-91 (Alaska 2006) (“Where the state 

has changed the benefits system after an employee’s enrollment in the system, the 

employee may choose to accept the new system or may opt to keep the benefits in effect 

at enrollment.”); see also Hammond, 627 P.2d at 1059 (holding retirement benefits 

modifications constitutionally infirm, and thus inapplicable, to members electing to 

receive unmodified benefits). 

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employment and returned his refund to PERS with interest, he was entitled to reinstate 

at his prior PERS service tier and credit.3 But in 2005 the legislature repealed that 

statute, leaving a five-year grace period for regaining State employment and reinstating 

to a prior PERS status.4 The State then sent notice to former PERS members that 

“[d]efined benefit members who do not return to covered employment before July 1, 

2010 will forfeit their defined benefit tier and all service associated with the refund.” 

In 2012 Metcalfe inquired about his PERS status. He was informed that 

even if he were to regain State employment, he could not reinstate to his prior PERS 

service tier and credit because AS 39.35.350 had been repealed in 2005 and the grace 

period for reinstatement had ended in 2010. In June 2013 Metcalfe brought a putative 

class action lawsuit against the State, alleging that the 2005 legislation: (1) violated 

article XII, section 7 of the Alaska Constitution;5 (2) deprived a class of former 

employees of their vested interest in the contractual “benefit to be reinstated to state 

employment at the tier level they previously held”;6 and (3) effectively breached theclass 

3 See former AS 39.35.350(b) (1980) (“An employee may reinstate credited 

service associated with a refund by repaying the total amount of the refund. Interest will 

accrue from the date of the refund until repayment of the refund or retirement, whichever 

occurs first.”); former AS 39.35.350 (1970) (“[T]he employee is entitled to the credited 

service he had accumulated at the time of his last termination, if the employee makes a 

contribution to the system equal to the amount of the refund paid upon his last 

termination . . . together with interest . . . .”). 

4 Ch. 9, §§ 133, 149 FSSLA 2005. 

5 Article XII, § 7 provides: “Membership in employee retirement systems 

of the State or its political subdivisions shall constitute a contractual relationship. 

Accrued benefits of these systems shall not be diminished or impaired.” 

6 Cf. Hammond, 627 P.2d at 1057 (“[B]enefits under PERS are in the nature 

of deferred compensation and . . . the right to such benefits vests immediately upon an 

(continued...) 

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members’ employment contracts. Metcalfe sought damages, but he also asked for a 

seemingly mutually exclusive declaratory judgment that the State must comply with 

former AS 39.35.350.7 The class was never certified. 

The State moved to dismiss Metcalfe’s lawsuit for failure to state a claim 

upon which relief could be granted,8 arguing that: (1) Metcalfe did not have standing to 

sue because article XII, section 7 of the Alaska Constitution protects only PERS 

members and Metcalfe no longer was a PERS member after he took a refund of his 

contributions; (2) Metcalfe’s claim was not ripe because he had not secured 

reemployment with the State and thus failed to meet former AS 39.35.350’s PERS 

reinstatement requirements; and (3) the contract statute of limitations barred Metcalfe’s 

claim because the legislation was passed in 2005 but Metcalfe did not sue until 2013.9 

The superior court tentatively rejected the argument that Metcalfe failed to state a claim 

6 (...continued) 

employee’s enrollment in that system.”). 

7 Cf. McMullen, 128 P.3d at 191 (“Where the state has changed the benefits 

systemafter an employee’s enrollment in the system, the employee may choose to accept 

the new system or may opt to keep the benefits in effect at enrollment.”). 

8 See Alaska R. Civ P. 12(b)(6) (allowing certain dismissal motions, 

including those for “failure to state a claimupon which relief can be granted,” to be made 

in lieu of an answer). 

9 See AS 09.10.053 (“Unless the action is commenced within three years, 

a person may not bring an action upon a contract or liability, express or implied, except 

as provided in AS 09.10.040, or as otherwise provided by law, or, except if the 

provisions of this section are waived by contract.”). 

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upon which relief could be granted, rejected the argument that Metcalfe’s claim was not 

ripe and that he lacked standing, but dismissed Metcalfe’s claim as time barred.10 

Metcalfe appealed the superior court’s dismissal of his claim based on the 

statute of limitations. The State cross-appealed the superior court’s ruling that 

Metcalfe’s claim was ripe and argued that the superior court’s decision could be upheld 

on the ground that Metcalfe lacked standing to sue. After oral argument we requested 

supplementalbriefing primarilyaddressingtwo questions: (1) canaclaimfor diminution 

in value of a contract right exist in this context, and (2) can a statute of limitations 

defense apply to a claimfor declaratory and injunctive relief prohibiting the enforcement 

of a statute alleged to be in violation of article XII, section 7? 

III. DISCUSSION 

A. Arguments In The Superior Court 

Metcalfe’s complaint contained a lengthy recitation of facts and law 

assertingthat the2005 legislation violated the Alaska Constitution. ButMetcalfe’s claim 

primarily was that he was entitled to damages because the 2005 legislation breached his 

PERS contract. A single reference to declaratory judgment was included in the ultimate 

prayer for relief, essentially asking the court to order the State to honor former 

AS 39.35.350.11 

10 The parties agreed and the superior court concluded that the three-year 

contract statute of limitations applied to Metcalfe’s claim. See supra note 9. 

11 Cf. Laverty v. Alaska R.R. Corp., 13 P.3d 725, 729-30 (Alaska 2000) 

(noting Alaska’s Declaratory Judgment Act (AS 22.10.020(g)) authorizes courts “to 

declare rights without granting a separate legal or equitable remedy” and that it may be 

appropriate “to determine the validity and construction of statutes,” but that a requested 

declaration must “be associated with an actual case or controversy” and “not open the 

door for hypothetical adjudications, advisory opinions, or answers to moot questions”). 

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When the State moved to dismiss Metcalfe’s claim, Metcalfe affirmatively 

asserted that his “claim is for breach of contract” and that it has “significant value,” 

without any reference to a separate declaratory judgment that the State must honor 

former AS 39.35.350. Metcalfe argued that former AS 39.35.350’s provision for future 

reinstatement at previous PERS service and tier levels was a constitutionally based 

contract right that — despite his withdrawal from the PERS system — had not been 

relinquished, giving him standing to sue the State for impairment of that right. He 

contended that the State had breached the contract on June 30, 2010 when former 

AS 39.35.350 finally was extinguished based on the earlier 2005 legislation. He 

reasoned that the contract claim became ripe on July 1, 2010, and therefore that his June 

27, 2013 lawsuit was within the three-year statute of limitations. Although 

acknowledging that “the value of [his contract right] may seem abstract,” Metcalfe 

argued that projected State savings from the statutory change, in excess of $100 million 

per year for medical insurance premiums alone, “grounds the financial value firmly in 

fact.” 

The superior court made a “tentative” determination that Metcalfe had a 

vested reinstatement right under former AS39.35.350,butnotedneed for further briefing 

on this issue if the case were to proceed. The court then concluded that this assumed 

vested right gave Metcalfe standing to sue and that, given the allegation that the 2005 

legislationbreached Metcalfe’s PERScontractanddiminishedtheassumedvestedright’s 

value, his claim was ripe. The court also noted that to the extent Metcalfe sought 

declaratory relief, it was for the court to determine whether the State had breached his 

PERS contract. But the court concluded that Metcalfe’s breach of contract claimaccrued 

in 2005 when former AS 39.35.350 was repealed — not at the close of the five-year 

grace period — because the alleged lifetime reinstatement right had been diminished 

immediately when the 2005 legislation limited it to the five-year grace period and 

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Metcalfe reasonably should have discovered the ability to bring his claim then. The 

court noted that Metcalfe had at least constructive notice of his claim in 2005 and had not 

argued either that he did not have notice or that the statute of limitations should be tolled. 

The court therefore dismissed Metcalfe’s claim as barred by the three-year statute of 

limitations. 

Metcalfe then filed a reconsideration motion asserting that the superior 

court had overlooked a critical proposition of law. Metcalfe argued specifically that the 

2005 legislation actually had not been a breach of his contract but rather was a 

repudiation of that contract allowing him to sue either when he chose to assert the breach 

or when the State’s performance was due. Metcalfe’s new legal theory, based on 

Restatement (Second) of Contracts § 25012 and Franconia Associates v. United States, 

13 

12 The Restatement (Second) of Contracts defines repudiation as: 

(a) a statement by the obligor to the obligee indicating that 

the obligor will commit a breach that would of itself give the 

obligee a claim for damages for total breach . . . , or 

(b) a voluntary affirmative act which renders the obligor 

unable or apparently unable to perform without such a 

breach. 

RESTATEMENT (SECOND) OF CONTRACTS § 250 (AM. LAW INST. 1981). 

13 536 U.S. 129 (2002). In Franconia property owners had received lowinterest federal loans to provide low-income rental housing, subject to various 

restrictions; the promissory notes allowed prepayment and release from those 

restrictions. Id. at 132-35. Concerned with low-income housing loss due to loan 

prepayments, Congress amended relevant laws to prohibit acceptance of prepayment 

unless the property owner agreed to maintain the low-income rental use of the property 

for a specified period of time. Id. at 135-36. Nine years after the statutory amendment 

and related regulations were implemented some property owners sued, arguing that 

(1) the new law was a repudiation of their contracts and an inverse condemnation of their 

property rights, and (2) they had the right to execute their options to prepay their loans 

(continued...) 

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was different fromhis pleaded allegations, his opposition to the State’s dismissal motion, 

and his prior litigation position that the repeal of former AS 39.35.350 was a fait 

accompli supporting a contract damages claim. And Metcalfe still made no reference to 

declaratory judgment in connection with his new theory. 

The State opposed reconsideration, responding that Metcalfe’s repudiation 

argument was inconsistent with his claim that “his rights were diminished immediately 

upon the enactment of SB 141.” (Emphasis in original.) It also argued that Franconia 

was distinguishable and that Metcalfe’s new repudiation argument was at odds with his 

position that the 2005 legislation had devalued his contract right and caused him 

immediate harm. 

The superior court denied Metcalfe’s reconsideration motion. The court 

concluded Franconia was not controlling and was distinguishable because it did not 

involve retirement system contract rights, and noted the majority federal rule that a claim 

for wrongful changes to a retirement program accrues when a clear repudiation of 

retirees’ rights is made known. More importantly the court did not believe that the 2005 

legislation was a “mere anticipatory repudiation”: 

[I]n any event, the court is not persuaded that the 

passage of [the 2005 legislation] constituted a mere 

anticipatory repudiation. The gist of Mr. Metcalfe’s claim is 

that [the 2005 legislation] violated [a]rticle XII, § 7. Such a 

violation would have occurred when [the 2005 legislation] 

was enacted as [it] would have immediately diminished an 

13 (...continued) 

and escape the prepayment restrictions. Id. at 133, 138. The Court of Federal Claims 

dismissed the suit based on a six-year statute of limitations and the Circuit Court 

affirmed. Id. at 138. The Supreme Court reversed, concluding that the statutory 

amendment was not an immediate breach of contract, but rather a repudiation allowing 

the property owners to elect to treat the repudiation as a breach before the government’s 

performance date or to await the performance date. Id. at 142-44. 

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accrued retirement benefit. Moreover, if viewed in 

conventional contract terms, if Mr. Metcalfe has a state 

Constitution based retirement benefit accruing at the time of 

his initial State hire to repay his PERS contribution and be 

reinstated to his former retirement tier if ever rehired by the 

State at any time, [the 2005 legislation] breached the contract 

when enacted as it immediately removed this “any time” 

right. This view is consistent with Mr. Metcalfe’s own 

arguments with respect to the State’s lack of ripeness and 

lack of standing claims. To the extent that Franconia holds 

otherwise the court does not find it persuasive. (Footnote 

omitted.) 

The superior court stated that its order “appears to conclude this litigation,” 

and it concurrently entered a separate final judgment. Nothing in the record reflects that 

Metcalfe challenged the final judgment that concluded the superior court litigation; 

Metcalfe did not argue that he had any claims not yet litigated, such as a claim for a 

declaratory judgment that the State must honor former AS 39.35.350. 

B. Arguments On Appeal 

Metcalfe initially argued in his briefing to us that two theories prevent his 

contract damages claim being barred by the statute of limitations. One is that through 

the 2005 legislation the State violated its contractual obligation not to diminish or impair 

his reinstatement right without an equivalent offsetting benefit; this resulted in a contract 

breach on June 30, 2010, the final grace period day for reinstatement under former 

AS 39.35.350. The other is that the State has repudiated but not yet breached its 

contractualobligation to reinstateMetcalfeupon hisfuturereemploymentand repayment 

of his refunded PERS contributions — and that this repudiation allows him to sue for 

damages any time before the State’s performance otherwise would be due and to seek 

contract damages even though he has not been rehired by the State (or tendered 

repayment of his withdrawn PERS contributions). But he nonetheless characterizes the 

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damages for each contract claim in the same manner: the diminution in value of his 

alleged lifetime PERS reinstatement rights under former AS 39.35.350. 

The phrase “declaratory judgment” cannot be found anywhere in the 

argument sections of Metcalfe’s opening and reply briefs. He did not contest the 

superior court’sdeterminationthat hisrequest for declaratory reliefwas only areiteration 

of his contention that his contract had been breached and he was entitled to damages. 

Nor did he argue that the superior court erred by not entering a declaratory judgment that 

the State must honor former AS 39.35.350.14 

On the other hand the superior court expressly noted that Metcalfe was 

bringing a claim for declaratory relief regarding the 2005 legislation. The court 

determined that Metcalfe had standing to seek declaratory relief because he presented an 

actual controversy ripe for decision — his claim was based on an asserted constitutional 

interest already subject to diminishment. And in its cross-appeal the State argued that 

if the superior court erred in its statute of limitations ruling, we should affirm the 

dismissal of Metcalfe’s lawsuit because he did not have standing to bring a claim for 

declaratory judgment and his claimwas not ripe for declaratory relief. Metcalfe disputed 

the State’s arguments but his response did not focus directly on its argument against 

declaratory relief. 

In response to our order for supplemental briefing, Metcalfe directed us to 

article XII, section 7 cases in which we have either permitted a breach of contract claim 

alongside a claim for declaratory and injunctive relief or applied contract-law principles 

in deciding the case. Metcalfe characterized his claim for damages and declaratory and 

14 Cf. Laverty, 13 P.3d at 730, 738 (noting laches-based denial of associated 

equitable relief “does not necessarily mean that an accompanying claim for declaratory 

relief should also be blocked”and concluding superior court had not abused its discretion 

in reaching declaratory judgment claim). 

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injunctive relief as seeking remedies for two separate harms: a remedy at law for one 

harm, a breach of contract and resulting injury occurring while the 2005 legislation has 

been in effect; and an equitable remedy for the other harm, a declaratory and injunctive 

relief prohibiting future enforcement of the 2005 legislation. Metcalfe asserted that no 

statute of limitations applies to his claim for declaratory and injunctive relief because 

such a claim seeks to prevent a future harm. The State countered that even if Metcalfe’s 

declaratory and injunctive relief claim could survive dismissal based on the statute of 

limitations, the claim could not survive the State’s other defenses. Both parties also 

urged us to decide the actual merits of Metcalfe’s statutory diminution claim if we 

determine the claim was dismissed in error. 

C.	 Decision 

1.	 Metcalfe has no right to diminution of value damages based on 

a claim that the 2005 legislation was a breach of the PERS 

contract. 

We have not previously recognized a constitutional claim for damages for 

a violation of article XII, section 7.15 In Hammond v. Hoffbeck16 we interpreted article 

XII, section 7 to mean that members’ retirement system rights accrue upon employment 

and enrollment17 and noted our view that the protected benefit rights include 

“requirements for eligibility.”18 We recognized that retirement systems require some 

15 “[W]e apply our independent judgment to questions of law presented by 

constitutional issues.” Majaev v. State, 223 P.3d 629, 631 (Alaska 2010) (citations 

omitted). 

16 627 P.2d 1052 (Alaska 1981). 

17 Id. at 1055-57. 

18 Id. at 1058; see also Sheffield v. Alaska Pub. Emps.’ Ass’n, 732 P.2d 1083, 

1087 (Alaska 1987) (stating that constitutionally protected retirement benefits include 

(continued...) 

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flexibility for successful operations, holding that the constitution does not preclude 

modifications to systemrights after employment and enrollment, but that it does “require 

that any changes in the system that operate to a given employee’s disadvantage must be 

offset by comparable new advantages to that employee.”19 

The merits of and remedies in Hammond are instructive. The case involved 

amendmentstoPERSeliminatingdistinctionsbetweenpublicsafety employees and other 

PERSparticipants,effectivelyreducing certainoccupationaldisabilityanddeathbenefits 

and increasing certain eligibility requirements for occupational pension benefits for the 

public safety employees.20 A public safety employees’ union sued, alleging the PERS 

changes were unconstitutional; the superior court agreed and prospectively enjoined the 

changes in their entirety.21 The State argued that any benefit diminishment had been 

offset by other advantages from the PERS amendments and that the changes were 

constitutionally sound.22 

We noted that our task on appeal was to determine whether the PERS 

modifications had disadvantageous effects on the public safety employees and, if so, to 

weigh those disadvantages against any advantages that may have accompanied them.23 

18 (...continued) 

not just dollar amounts, but “the practical effect of the whole complex of provisions” 

(emphasis omitted) (quoting Opinion of the Justices, 303 N.E.2d 320, 327 (Mass. 1973) 

(construing Mass. Gen. Laws ch. 32, § 25(5) (amended 1956)))). 

19 Hammond, 627 P.2d at 1057. 

20 Id. at 1053-54. 

21 Id. at 1055. 

22 See id. at 1058. 

23 Id. at 1057-58. 

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We concluded that the superior court correctly determined that the PERS modifications 

were an effective diminishment of vested systemrights and violated article XII, section 7 

as to those public safety employees adversely affected.24 But we explained that the 

ultimate determination whether vested rights have been diminished must be made on a 

case-by-case basis.25 We specifically concluded that the superior court had erred by 

prospectively invalidatingthePERSmodificationswhentherewouldbenoconstitutional 

infirmity in applying them to persons employed and enrolled after their effective date.26 

We also noted that persons employed before the PERS modifications’ effective date who 

wished to be covered by the new system could elect to do so.27 We held that the PERS 

modifications were only unconstitutional in relation to persons employed before the 

modifications’ effective date who chose to receive benefits under the system in effect at 

the time they were hired.28 Thus the available remedy for the modifications’ 

constitutional infirmity was an in-system benefits choice.29 

More recently, in McMullen v. Bell we reiterated both that under the 

constitution the legislature may not impair accrued state retirement system benefits and 

that benefit rights vest on employment and enrollment.30 Further: 

24 Id. at 1059. 

25 Id. (citing Betts v. Bd. of Admin. of the Pub. Emps.’ Ret. Sys., 582 P.2d 614, 

617 (Cal. 1978) (en banc)). 

26 Id. 

27 Id. & n.13. 

28 Id. at 1059-60. 

29 Id. & n.13. 

30 128 P.3d 186, 190 (Alaska 2006). 

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An employee’s vested benefits arise by statute, from the 

regulations implementing those statutes, and from the 

division’s practices. Where the state has changed the benefits 

system after an employee’s enrollment in the system, the 

employee may choose to accept the new system or may opt 

to keep the benefits in effect at enrollment.[31] 

This suggests Metcalfe’s proper remedy is allowing him to keep the retirement benefits 

available to him — whatever those benefits might be — not breach of contract damages. 

Although we have used contract-law principles to decide article XII, 

section 7 cases32 and have even affirmed a related breach of contract finding in a case,33 

breach of contract damages are not an appropriate remedy for the alleged constitutional 

violation here: In Lowell v. Hayes we declined to allow “a constitutional claim for 

damages, ‘except in cases of flagrant constitutional violations where little or no 

alternative remedies are available.’ ”34 We later stated that declaratory and injunctive 

relief are appropriate remedies with respect to potentially unconstitutional statutes if the 

circumstances of the case do not meet the exception described in Lowell v. Hayes and 

31 Id. at 190-91 (footnote omitted) (citing Hammond, 627 P.2d at 1059 

(explaining employee’s right to choose between benefit systems)). 

32 See, e.g., Statev.Allen, 625 P.2d844,848 (Alaska1981) (applying contract 

principle of “condition subsequent” to resolve article XII, section 7 claim). 

33 Municipality of Anchorage v. Gentile, 922 P.2d 248, 260 n.13 (Alaska 

1996) (“The trial court also held that by diminishing the medical benefits, MOA violated 

article XII, section 7 of the Alaska Constitution. Because the class members’ [related 

union] contract claim fully resolves the question of whether the medical benefits vested 

when the covered employees retired, it is unnecessary to consider claimants’ 

constitutional claim.”). 

34 117 P.3d 745, 753 (Alaska 2005) (quoting Dick Fischer Dev. No. 2, Inc. v. 

State, Dep’t of Admin., 838 P.2d 263, 268 (Alaska 1992)). 

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damages are unavailable.35 Our general reluctance to allow a constitutional claim for 

damages where other remedies exist, viewed in concert with our past article XII, 

section 7 decisions, convinces us that Metcalfe has no cognizable claim for breach of 

contract damages — Metcalfe’s remedy here has been outlined in Hammond and 

McMullen. 

Because in his current status Metcalfe has no cognizable claim for breach 

of contract damages, we affirm the dismissal of the claim without reaching whether the 

claim is barred by the statute of limitations.36 

2.	 We remand Metcalfe’s claim for declaratory and injunctive 

relief for further proceedings. 

a.	 Statute of limitations 

A declaratory judgment is neither strictly legal nor strictly equitable.37 

When deciding whether a time-limitation defense applies to a declaratory and injunctive 

relief claim, we have noted that courts often consider the substance of the relief sought.38 

35 Krause v. Matanuska-Susitna Borough, 229 P.3d 168, 175 (Alaska 2010) 

(reversing the dismissal of a claim for declaratory and injunctive relief, noting that the 

plaintiffs “are not entitled to money damages for the alleged violations of their 

constitutional rights, but they may seek declaratory and injunctive relief”). 

36 “We may affirm a judgment on any grounds that the record supports, even 

if not relied on by the superior court.” Snyder v. Am. Legion Spenard Post No. 28, 119 

P.3d 996, 1001 (Alaska 2005). 

37 See Laverty v. Alaska R.R. Corp., 13 P.3d 725, 730 (Alaska 2000) (“We 

have similarly described the Declaratory Judgment Act as adding ‘another remedy to 

existing legal and equitable remedies.’ ” (quoting Jefferson v. Asplund, 458 P.2d 995, 

997 (Alaska 1969))). 

38 See id. (“Courts often resolve this problem [of declaratory judgments 

arising either at law or equity] by looking to the circumstances surrounding the claimand 

applying laches if the claimwould have arisen in equity before declaratory judgment was 

(continued...) 

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We have held that equitable relief claims are not subject to statutes of limitations and are 

instead controlled by the doctrine of laches.39 Aside from declaratory judgment, 

Metcalfe may seek only equitable relief here because, as explained above, he currently 

has no cognizable claim for a remedy at law. 

In State v. Alex we considered whether time-limiting defenses applied to a 

suit challenging a statute’s constitutionality and seeking damages, declaratory judgment, 

and an injunction.40 We determined that the damages claim was governed by a statute 

of limitations because it was an action at law, and we found no error in the trial court’s 

determination that the laches doctrine did not apply to the request for declaratory relief 

and an injunction because laches is inapplicable when relief is “prospective in 

application and seek[s] to prevent future threatened harm.”41 Metcalfe’s claim similarly 

is prospective in nature and seeks to challenge future enforcement of a statute as 

constitutionally infirm. Laches — not a statute of limitations — is the appropriate timelimiting defense here, but, as in Alex, it is inapplicable to Metcalfe’s claim. 

It was error to dismiss Metcalfe’s declaratory and injunctive relief claim as 

barred by AS 09.10.053. 

38 (...continued) 

available.”). 

39 Moffitt v. Moffitt, 341 P.3d1102, 1105 (Alaska2014) (reversing asummary 

judgment order concerning equitable claims because the order applied a statute of 

limitations to bar the claims). 

40 646 P.2d 203, 215 (Alaska 1982). 

41 Id. (stating that it was “simply inappropriate” to apply laches analysis to a 

declaratory judgment and injunctive relief claim challenging statute’s constitutionality 

because relief sought was “prospective in application”). 

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b. Ripeness 

The superior court determined that Metcalfe’s claim was ripe because he 

alleged an injury caused by the 2005 legislation. The State challenges the superior 

court’s determination, asserting that Metcalfe must regain a PERS-benefitted position 

before his claim will be ripe for decision. 

“The ripeness doctrine requires a plaintiff to claimthat either [an] . . . injury 

has been suffered or that one will be suffered in the future.”42 There is “no set formula” 

to identify whether a case is ripe for decision.43 When considering a claim for 

declaratory relief regarding a statute’s constitutionality, courts should “balance . . . the 

plaintiffs’ ‘need for decision against the risks of decision.’ ”44 The “need for decision” 

is judged as “a function of the probability that [the plaintiff] will suffer an anticipated 

injury.”45 The “risks of decision” are measured “by the difficulty and sensitivity of the 

issues presented, and by the need for further factual development to aid decision.”46 

Here Metcalfe seeks a declaratory judgment identifying the 2005 

legislation’s effect on his asserted PERS rights. Although we have rejected his claim of 

monetary injury, Metcalfe nonetheless has raised a claim that his asserted PERS rights 

have been wrongfully diminished, and he has demonstrated a need for decision: As the 

42 Brause v. State, Dep’t of Health & Soc. Servs., 21 P.3d 357, 359 (Alaska 

2001) (citing Bowers Office Prods., Inc. v. Univ. of Alaska, 755 P.2d 1095, 1099 (Alaska 

1988)). 

43 Id. at 359. 

44 Id. at 360 (quoting 13A CHARLES ALANWRIGHTETAL.,FEDERALPRACTICE 

AND PROCEDURE § 3532.1, at 115 (2d ed. 1984)). 

45 Id. 

46 Id. (citing WRIGHT, supra note 43, § 3532.1, at 115). 

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superior court recognized, Metcalfe and others in his position need to know their PERS 

status to make decisions about pursuing employment opportunities with the State. And, 

as explained above, substantial case law guides a court deciding an article XII, section 7 

claim, rendering the risk of decision low. The superior court did not abuse its discretion 

in determining that Metcalfe’s declaratory judgment claim was ripe for decision.47 

c. Other issues 

The superior court “tentatively” determined that Metcalfe had a vested 

PERS right under former AS 39.35.350 before moving on to the ripeness and statute of 

limitations issues. The court noted that it would need further briefing before deciding 

whether Metcalfe actually had a vested PERS interest in light of his complete departure 

from the retirement system in the 1980s. Both parties ask us to decide this question, as 

well as other issues that go to the merits of Metcalfe’s claim that the 2005 legislation 

unconstitutionally diminished PERS rights. We decline the invitation because — 

without need for further specificity — we are divided on the fundamental question. 

Although Metcalfe brought this case as a class action, the motion to dismiss 

preceded serious class certification efforts. Here a divided decision affirming the 

superior court’s dismissal of Metcalfe’s case on the alternative basis that Metcalfe has 

no vested PERS right to assert in this context — as the dissenting opinion urges — 

would resolve the issue for Metcalfe but not for anyone else in the putative class, and 

could lead to inconsistent results.48 On the other hand, reaching out to render a divided 

47 We review a superior court’s decision regarding a controversy’s ripeness 

for abuse of discretion. Id. at 358-59. 

48 See Alaska R. App. P. 106(b) (“In an appeal that is decided with only three 

of five supreme court justices participating, any issue or point on appeal that the court 

decides by a two-to-one vote is decided only for purposes of that appeal, and shall not 

have precedential effect.”). 

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decision that Metcalfe has a vested PERS right to assert in this context would not only 

resolve the issue in Metcalfe’s favor, but also ultimately could lead to resolving the issue 

in the putative class’s favor on remand. This seems imprudent and unfair to the State. 

We deem it best to allow the superior court the opportunity to resolve both the class 

action issues and the remaining declaratory judgment issues in the first instance. 

IV. CONCLUSION 

We AFFIRM the dismissal of Metcalfe’s monetary damages claim and 

REMAND for further proceedings on his declaratory judgment and injunctive relief 

claim. 

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FABE, Chief Justice, concurring in part and dissenting in part. 

Although I agree with the court’s decision affirming on alternative grounds 

the superior court’s dismissal of Metcalfe’s claim for money damages, I respectfully 

disagree with the decision to remand this case to the superior court for further 

proceedings. In my view, the superior court’s dismissal of this case in its entirety should 

be affirmed because article XII, section 7 of the Alaska Constitution does not encompass 

Metcalfe’s claim. Metcalfe is not a member of PERS within the meaning of the PERS 

statutes, so the constitutional prohibition on impairing or diminishing membership 

benefits does not apply to him. The statutory change therefore falls outside the scope of 

Metcalfe’s article XII, section 7 protections, and Metcalfe has stated no claim for relief 

under that provision. Because we may affirm the superior court on any grounds briefed 

by the parties and supported by the record,1 I would affirm the superior court’s decision 

to dismiss Metcalfe’s claim on these alternate grounds. 

By its plain terms, article XII, section 7 applies only to members of 

employee retirement systems: It first provides that “[m]embership in employee 

retirement systems of the State or its political subdivisions shall constitute a contractual 

relationship” before going on to explain that “[a]ccrued benefits of these systems shall 

not be diminished or impaired.”2 Because the provision only governs “[m]embership in 

employee retirement systems,” the anti-diminishment provision protects only members 

of such systems. 

The definition of PERS membership is governed by AS 39.35.680, which 

provides that the term “member” refers to “a person eligible to participate in the plan and 

1 See Snyder v.Am.Legion Spenard Post No. 28, 119 P.3d 996, 1001 (Alaska 

2005) (first citing Marshall v. First Nat’l Bank of Alaska, 97 P.3d 830, 835 (Alaska 

2004); then citing Ransom v. Haner, 362 P.2d 282, 285 (Alaska 1961)). 

2 Alaska Const. art. XII, § 7 (emphasis added). 

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who is covered by the plan,” including active members as well as various categories of 

inactive, vested, or retired members.3

 On the other hand, the statute defines a “former 

member” as “an employee who is terminated and who has [requested or] received a total 

refund of the balance of the employee contribution account.”4 It also specifically 

provides that the term “ ‘member’ . . . does not include former members.”5 A nearly 

identical version of this statute was in effect when Metcalfe received a refund of his 

retirement contributions in 1981, similarly providing that the term “ ‘member’ . . . does 

not include former members,” and that the term “former member” encompasses 

employees who have “received a total refund” of their employee contribution accounts.6 

When a statute is clear and unambiguous, we have explained that it “will 

not be modified or extended by judicial construction.”7 Here, the language of 

AS 39.35.680 is unequivocal. And as the State correctly notes, all of our past decisions 

on diminishment of benefits under PERS or other public employee retirement systems 

have addressed the benefits of members. 

8 We have never held that article XII, section 7 

3 AS 39.35.680(22)(A)-(B). 

4 AS 39.35.680(20). 

5 AS 39.35.680(22)(C)(i). 

6 Former AS 39.35.680(19), (21) (1981); see ch. 128, § 54, SLA 1977. 

7 State v. Pub. Safety Emps. Ass’n, 93 P.3d 409, 415 (Alaska 2004) (quoting 

Tesoro Petroleum Corp. v. State, 42 P.3d 531, 537 (Alaska 2002)). 

8 See Alford v. State, Dep’t of Admin., Div. of Ret. & Benefits, 195 P.3d 118 

(Alaska 2008) (regarding the State’s recapture of early retirement benefits after members 

retired, retainedPERSmembership, and then re-entered public employment); Bd. of Trs., 

Anchorage Police & Fire Ret. Sys. v. Municipality of Anchorage, 144 P.3d 439 (Alaska 

2006) (regarding “surplusbenefits” for current members ofthemunicipality’s retirement 

system); McMullen v. Bell, 128 P.3d 186 (Alaska 2006) (reviewing the calculation of a 

(continued...) 

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applies to non-members of PERS, and such a decision would contradict the clear text of 

AS 39.35.680 and of article XII, section 7 itself. Thus, the statutory text and our existing 

precedent both demonstrate that the anti-diminishment provision of article XII, section 7 

does not apply to former members of PERS. 

Because former members are not members of PERS within the meaning of 

AS 39.35.680 and the constitutional anti-diminishment provision, Metcalfe is not a 

member of PERS and was not a member when the disputed statute was repealed. 

Metcalfe chose to relinquish his membership status by taking a full refund of his PERS 

contributions in 1981. Using either the definition in effect at that time9 or the definition 

in effect in 2005,10 Metcalfe’s decision to “receive[] a total refund” of his PERS account 

meant that he became a former member within the meaning of the PERS statutes. And 

once he had become a former member, Metcalfe could no longer claimentitlement to any 

8 (...continued) 

specific PERS member’s benefits); Duncan v. Retired Pub. Emps. of Alaska, Inc., 71 

P.3d 882 (Alaska 2003) (regarding PERS and TRS members’ health insurance benefits); 

Municipality of Anchorage v. Gallion, 944 P.2d 436 (Alaska 1997) (reviewing a change 

to the “accrued benefits” of some members of a municipal retirement plan); Municipality 

of Anchorage v. Gentile, 922 P.2d 248, 260 n.13 (Alaska 1996) (declining to consider 

the constitutional claim brought by members of a municipal retirement plan); Sheffield 

v. Alaska Pub. Emps.’ Ass’n, 732 P.2d 1083 (Alaska 1987) (regarding a change in 

calculating PERS members’ accrued benefits); State ex rel. Hammond v. Allen, 625 P.2d 

844 (Alaska 1981) (reviewing the repeal of benefits for members of the Elected Public 

Officers’ Retirement System); Hammond v. Hoffbeck, 627 P.2d 1052 (Alaska 1981) 

(reviewing a change in benefits as applied to PERS members who were adversely 

affected and employed on the date of the change). 

9 Former AS 39.35.680(19) (1981). 

10 AS 39.35.680(20). 

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of the benefits of PERS membership.11 Metcalfe’s right to PERS benefits thus divested 

at the time of his refund in 1981. So by the time the disputed change occurred in 2005, 

Metcalfe had not been a PERS member for roughly 24 years, and he therefore possessed 

nomembership benefits thatcould havebeen unconstitutionally diminishedbytherepeal 

of AS 39.35.350. 

In sum, because he was not a member at the time of the change, and 

because article XII, section 7 of the Alaska Constitution protects only the benefits of 

members against diminishment or impairment, Metcalfe has no claimfor relief under this 

provision. The parties have had an opportunity to brief this issue, and “[w]e may affirm 

a judgment on any grounds that the record supports, even if not relied on by the superior 

court.”12 Here the record adequately supports the conclusion that Metcalfe’s claim does 

not fall within article XII, section 7, because he is not a member of PERS. Accordingly, 

it is unnecessary to remand this case for any further factual development. Instead, I 

would affirm the superior court’s dismissal of the case on the ground that Metcalfe has 

stated no claim for relief under article XII, section 7 of the Alaska Constitution. 

11 See AS 39.35.680(22)(C)(i). 

12 Snyder v. Am. Legion Spenard Post No. 28, 119 P.3d 996, 1001 (Alaska 

2005) (first citing Marshall v. First Nat’l Bank of Alaska, 97 P.3d 830, 835 (Alaska 

2004); then citing Ransom v. Haner, 362 P.2d 282, 285 (Alaska 1961)). 

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