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Lambda Legal seeks survivor benefits for lesbian partner of Alaska shooting victim

Submitted by Melissa S. Green on Monday, 24 September 2012 – 10:31 AM2 Comments

by Melissa S. Green

On October 29, 2011, Kerry Fadely was murdered at her workplace, the Millennium Alaskan Hotel in Anchorage. Today, Lambda Legal filed a legal challenge seeking survivor benefits for Kerry’s partner of 10 years, Debbie Harris.

The papers were filed today with the Alaska Workers’ Compensation Board. According to the filing,

Claimant Deborah Harris is the surviving same-sex partner of decedent Kerry Fadely, who was employed by Millennium Hotel until she was killed by a former employee whom Ms. Fadely had previously terminated. Ms. Harris does not qualify as a “widow” eligible to receive death benefits under the Alaska Workers’ Compensation Act, Alaska Stat. §§ 23.30.215 & 23.30.395(40), because she and Ms. Fadely were precluded from marrying each other under Alaska law. The sole legal issue presented here is whether it violates the Alaska and U.S. Constitutions to bar surviving same-sex partners like Ms. Harris from the death benefits to which they would be entitled as spouses if the State of Alaska permitted same-sex couples to marry.

The Alaska Workers’ Compensation Board does not have the authority to decide questions of constitutional law. Today’s filing asks the Board to make a final decision and order on her survivor’s benefit claim so that Harris may then appeal to the Alaska Workers’ Compensation Appeals Commission, which is also expected to deny the claim per current Alaska law. Once the claim has been denied, Harris will be able to pursue a constitutional challenge to the Alaska Supreme Court.

Statements included in the filing describe Kerry Fadely’s and Debbie Harris’ relationship of 10+ years, in which both partners helped to raise one another’s children, wore matching rings, and shared finances and living arrangements.

On October 29, 2011, a Saturday, the couple shared a late lunch together before Fadely left for her work as food and beverage manager at the Millennium Alaskan Hotel. It was the last time Harris saw her partner alive. Shortly before 6:30 PM that evening, a man initially identified as Victor Rodriguez Flores, who had been fired on October 21, entered the hotel looking for Fadely. Shortly thereafter he pulled out a handgun, and she died at the scene from multiple gunshot wounds. Flores was later discovered to be living under a false identity; he was actually Javier Antonio Martinez, a convicted felon who had been previously ordered out of the country. Martinez is currently scheduled to be tried on charges of first degree murder in the death of Kerry Fadely beginning November 5 (Case No. 3AN-11-12097CR) in Anchorage Superior Court before Judge Michael Wolverton.

Following Kerry Fadely’s death, family members who disapproved of same-sex relationships chose not to acknowledge her relationship with Debbie Harris or Debbie’s three children, whom Kerry had helped to raise. The family-written obituary, still available on the Anchorage Daily News website, makes no mention of Debbie or her children. Debbie and her children were excluded from participating in making funeral arrangements, were not allowed to sit in the family seating area at the funeral itself, and were not acknowledged by any speakers at the funeral, as witnessed by several members of the Anchorage LGBT community (myself included) who attended the funeral in support of Debbie and her family.

Debbie was also forced to move out the home she had shared with Kerry, because she could not afford to continue living there on her income alone. Kerry’s son, who had lived with the couple at the time of Kerry’s death, receives death benefits from the Millennium Hotel, and supports Debbie’s claim to also receive benefits.

On behalf of the Alaska LGBT community, we extend all our love and support to Debbie and her family, and our thanks to Lambda Legal.

Press Release from Lambda Legal

Lambda Legal Seeks Survivor Benefits for Lesbian Partner of Shooting Victim in Alaska

“The safety net to catch families in times of crisis should not have a gay exception.”

(Anchorage, AK, September 24, 2012) – Lambda Legal filed a legal challenge today on behalf of Deborah Harris, whose same-sex partner, Kerry Fadely, was shot and killed one year ago by a disgruntled former employee whom Fadely had fired. Under Alaska’s workers’ compensation law, the spouse of a person who dies from a work-related injury is eligible to receive survivor benefits, but same-sex couples are excluded from that legal protection.

“When Kerry was killed, it was like a hole had been punched in my heart,” Harris said. “We loved each other and were together for more than a decade in a committed relationship. But because we could not marry, I was unable to receive the same financial protections that the state provides to married heterosexual couples. As a result, shortly after Kerry was killed and while I was still grieving, I had to abandon the home that we had shared.”

The filing comes just shy of the one-year anniversary of Fadely’s death, which occurred in October 2011. At the time, Fadely was employed as the food and beverage manager at the Millennium Hotel in Anchorage, Alaska. An employee whom Fadely had fired nine days earlier returned to the hotel with a pistol, asked for Fadely, and shot her multiple times. Alaska’s workers’ compensation law requires employers to provide survivor benefits, which are generally paid by insurance companies, to the surviving spouse of a person who dies from a work-related injury. The benefits minimize disruption to family members who relied upon the deceased worker’s income and thus vary in amount depending on the worker’s salary.

Same-sex couples, however, are categorically barred from accessing legal protections for survivors, because the State of Alaska does not allow same-sex couples to marry. Harris is not challenging the State’s exclusion of same-sex couples from marriage, but she is challenging the State’s exclusion of same-sex couples from eligibility for survivor benefits. Unlike several other states, Alaska does not even provide same-sex couples with access to the rights and responsibilities of marriage through a secondary status such as registered domestic partnerships or civil unions.

“The safety net to catch families in times of crisis should not have a gay exception,” said Peter Renn, Lambda Legal Staff Attorney. “Imagine losing the person you love most in your life, under the most horrifying of circumstances, and then imagine the government telling you that, legally, your relationship meant nothing. That’s what same-sex couples in Alaska face.”

Lambda Legal claims that the discrimination violates the constitutional guarantees of equality secured by both the Alaska and U.S. Constitutions. It filed legal papers today with the Alaska Workers’ Compensation Board commencing a constitutional challenge. Because the Board and its appeals commission cannot decide constitutional issues and will be forced to deny Harris’ claim, Harris will have the right to appeal directly to the Alaska Supreme Court. The Alaska Supreme Court will then be able to decide whether excluding same-sex couples from survivor protections is constitutional.

Lambda Legal Staff Attorney Peter Renn is representing Deborah Harris with co-counsel Eric Croft of The Croft Law Office. The case is Harris v. Millennium Hotel. The proceeding names Millennium Hotel because it employed Harris’ partner, but the legal challenge is against the State of Alaska’s exclusion of same-sex couples from survivor benefits.

Read a copy of today’s filing: Notice of Constitutional Challenge and Request for Final Decision and Order. The case is Harris v. Millennium Hotel.

Watch a video interview with Deborah. A high-resolution version of the video is available to media upon request.

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Press contact: Tom Warnke, Cell: 213-841-4503: Email: twarnke@lambdalegal.org

Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV through impact litigation, education and public policy work.