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11792878

In the MATTER OF the Minor Child K.A.H., d.o.b. 9/21/85

In re K.A.H.

1998-11-27

No. S-7761

91

98

967 P.2d 91

967

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:53:33.876399+00:00

CAP

Before MATTHEWS, C.J., and COMPTON, EASTAUGH, FABE and BRYNER, JJ.

In the MATTER OF the Minor Child K.A.H., d.o.b. 9/21/85

In the MATTER OF the Minor Child K.A.H., d.o.b. 9/21/85 No. S-7761. Supreme Court of Alaska. Nov. 27, 1998. Gerald W. Markham, Kodiak, for Appellant. Robert H. Wagstaff, Anchorage, Richard D. Hailey, President, Association of Trial Lawyers of America, and Jeffrey R. White, Associate General Counsel, Association of Trial Lawyers of America, Washington, D.C., for Amicus Curiae the Association of Trial Lawyers of America. Stephen J. Van Goor, Bar Counsel, Alaska Bar Association, Anchorage, for Amicus Curiae Alaska Bar Association. Before MATTHEWS, C.J., and COMPTON, EASTAUGH, FABE and BRYNER, JJ.

4053

24936

OPINION FABE, Justice. I. INTRODUCTION Alaska Rule of Professional Conduct 1.8(e) prohibits lawyers from providing clients with financial assistance other than court costs and expenses of litigation. Gerald W. Markham, counsel in a wrongful death suit, advanced his client funds for living expenses and, following settlement of the case, sought reimbursement from the settlement funds. The superior court denied this request. Markham appeals, arguing that the loans were permissible under Rule 1.8(e), or, if not permissible, that the rule unconstitutionally denies or infringes upon access to the courts. Because we conclude that Rule 1.8(e) prohibits lawyers from advancing living expenses to clients and does not unconstitutionally interfere with court access, we affirm. II. FACTS AND PROCEEDINGS In 1993 P.K.H. was killed while working as a seaman on a commercial crabbing vessel in the Bering Sea. He left as his sole heir K.A.H., who was seven years old at the time. S.H., K.A.H.'s mother and P.K.H.'s former wife, was appointed as the personal representative of P.K.H.'s estate. S.H., represented by Gerald W. Markham, filed a wrongful death action against P.K.H.'s employer under the federal Jones Act. By 1994 S.H.'s financial situation was bleak. Markham arranged for an accountant, Andy Lundquist, to loan several hundred dollars to S.H. over the course of six months on the condition that S.H. and Markham would repay Lundquist from the proceeds of the wrongful death suit. Despite the loans, S.H. and her two daughters were evicted from their residence and, according to Markham, were living in their car in the summer of 1994. After a brief move to Wisconsin to live with S.H.'s father, S.H. was advised by counsel that all hopes for pre-litigation settlement negotiations in the wrongful death case had ended and that S.H.'s presence in Alaska was needed to locate P.KH.'s wage records and photographs, and to give her deposition. S.H. asked one of Markham's associates to loan her money for airfare from Wisconsin and rent for an apartment in Kodiak. The associate wired S.H. $5,025. At some point in 1995, S.H. again sought a loan from Markham to "get her by." Markham asked Lundquist to make the loan, and Lundquist wrote a check for $1,000 to S.H. from Markham's account. Additionally, during the course of his representation, Markham advanced small amounts of money to S.H. for items such as "cigarettes and cosmetics." In sum, it appears that Markham's advances to S.H. and loans guaranteed by him totaled over $6,000: $5,025 in connection with S.H.'s return from Wisconsin, over $1,000 to defray ordinary costs of living, and several hundred dollars loaned by Lundquist and guaranteed by Markham. The wrongful death suit was eventually settled in 1995 for $665,000. At a January 1996 hearing, the standing master approved Markham's one-third contingency fee of $216,692.63 and litigation costs of $15,012.10. But the court refused to allow use of settlement funds to reimburse Markham for the loans made to S.H. Markham moved for reconsideration, arguing that advances for living expenses should be allowed under Rule 1.8(e). In February 1996 the standing master recommended granting Markham an additional $3,050 to reimburse him for costs. This amount represented the cost of airfare to fly S.H. and her daughters back from Wisconsin and other costs of litigation. Markham continued to argue that he was entitled to be reimbursed for the remainder of the loans. The court approved the standing master's recommendation and noted that counsel "should ask the Supreme Court to reexamine Professional Conduct Rule 1.8 if he finds it inappropriate. The court will not consider a challenge to the rule absent an adversary proceeding." Markham appeals the court's refusal to allow his reimbursement for his advances of living expenses to S.H. Because there is no appellee in this matter, we asked the Alaska Bar Association to file an amicus curiae brief in response to Markham's arguments. The Association of Trial Lawyers of America (ATLA) also filed an amicus curiae brief. We thank them both for their valuable assistance. III. DISCUSSION A. Alaska Rule of Professional Conduct 1.8(e) 1. Standard of review The superior court concluded that Rule 1.8(e) prevented it from allowing Markham's reimbursement for humanitarian loans to S.H. Whether Rule 1.8(e) prohibits such loans presents a question of law. We review questions of law de novo. "Our duty is to adopt the rule of law that is most persuasive in light of precedent, reason, and policy." 2. Rule 1.8(e) prohibits advances for living expenses. We must first decide whether Markham's advances to S.H. for living expenses were permissible under Alaska Rule of Professional Conduct 1.8(e). Interpretation of Rule 1.8(e) presents a question of first impression in Alaska. Markham asserts that the rule does not forbid an attorney from making loans for living expenses to a client after the attorney has been retained. The Alaska Bar Association responds that the plain language of Rule 1.8(e) expressly prohibits a lawyer from providing financial assistance to a client other than court costs and expenses of litigation. The Model Rules of Professional Conduct were adopted by the American Bar Association in 1983. We promulgated the Alaska Rules of Professional Conduct in 1993, rescinding the Code of Professional Responsibility in its entirety. The Alaska rules adopt Model Rule 1.8(e) verbatim. Rule 1.8(e) states that a lawyer may not provide financial assistance to a client in connection with litigation other than to advance court costs and litigation expenses: A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.[ ] The rule's language unambiguously forbids lawyers from advancing living expenses to clients. The overwhelming weight of authority on the subject supports this view. The Annotated Model Rules state unequivocally that "[t]he most common violation under Rule 1.8 and its Model Code counterpart occurs when a lawyer advances living expenses to a client while litigation is pending." As The Law of Lawyering recounts, the American Bar Association House of Delegates rejected a proposed final draft of the model rules that would have allowed lawyers to advance clients funds for living expenses under Rule 1.8(e), and such advances "were once again prohibited altogether." And Modern Legal Ethics explains that the rules "implicitly but clearly" prohibit loans for living expenses, even in cases involving especially needy clients: The most common instance in which a lawyer might be asked by a client for assistance is an instance in which the prohibition rather clearly applies. That is when personal injury clients, both injured and possibly made impecunious by the defendants' tortious conduct, are unable to survive prolonged litigation without financial assistance. Defendants, aware of the economic pressure burdening unaided plaintiffs, have every economic incentive to prolong the litigation with frivolous motions and discovery. At least on their face, both the Code and the Model Rules prohibit assistance no matter how needful the client. And so have gone most of the decisions under the Code.[ ] Accordant with this position, the vast majority of courts interpreting Rule 1.8(e) and its precursor have concluded that lawyers are prohibited from advancing living expenses to clients. Although the Supreme Courts of Louisiana and Florida have reached the opposite conclusion, courts in other states have not adopted their reasoning, and we find their analysis unpersuasive. In consideration of the rule's clear ban on lawyers providing financial assistance to clients in connection with litigation, except in the circumstances set forth in subsections (1) and (2), and in light of the virtual consensus among courts and commentators, we hold that Rule 1.8(e) does not permit lawyers to advance living expenses to clients. 3. Rule 1.8(e) does not unconstitutionally deny or impede access to the courts. Markham next argues that Rule I.8(e) unconstitutionally denies or interferes with a plaintiffs access to the courts to enforce federal rights under the Jones Act. In support of this argument, ATLA contends that the rule-imposes financial hardship, on plaintiffs that forces them to settle disputes rather than endure the potentially prolonged litigation process. We recognized the general right of access to civil courts in Bush v. Reid. In that case, based on due process and equal protection concerns, we invalidated a statute that precluded a person on parole from bringing a civil action. Our analysis relied on Boddie v. Connecticut, in which the United States Supreme Court held that indigents could not be deprived of access to divorce courts by the imposition of filing fees that they were unable to pay. We again considered the right of access to the civil courts in Patrick v. Lynden Transport, Inc. At issue was a statute requiring out-of-state plaintiffs to post a security bond for anticipated costs and attorney's fees as a condition of maintaining a suit in Alaska. The "effect of the statute [was] to discriminate between those nonresidents who can afford to post a bond for costs and attorney fees and those nonresidents who cannot, as well as to discriminate between nonresidents and residents generally." We concluded that the statute violated equal protection because it unreasonably restricted access to the courts. These cases are distinguishable from the case at hand. First, as we noted in Patrick, the holding in Boddie is narrow — the deci sion turned on the fundamental nature of marriage and the state's monopoly on the means for obtaining a divorce. In a later decision, "the Court clarified that a constitutional requirement to waive court fees in civil cases is the exception, not the general rule." The Supreme Court has further explained that it has "consistently set apart from the mine run of cases those involving state controls or intrusions on family relationships." No such fundamental family concern is at stake in this case. Second, whereas Bush, Boddie, and Patrick involved direct impediments to court access, this case does not. The statute in Bush flatly prohibited parolees from filing suit. The statutes in Boddie and Patrick imposed court fees that denied indigent plaintiffs access to the courts. Such fees have been characterized as "insurmountable barrier[s] to filing suit." By contrast, nothing in Rule 1.8(e) expressly prohibits potential plaintiffs from filing suit or requires plaintiffs to pay for court access. Indeed, Rule 1.8(e)(2) expressly permits a lawyer to pay the court costs and litigation expenses of indigent clients, presumably so that they will not be denied access to the courts due to their indigency. This provision squarely addresses the concerns expressed in the Bush and Patrick eases. Markham and ATLA also rely on Brotherhood of Railroad Trainmen v. Virginia. Trainmen is inapposite, however, because it dealt with First Amendment associational rights, which are not at issue here. In Trainmen, a union had a practice of advising injured members and their families to obtain legal advice before settling' their claims. The union also recommended particular lawyers to handle their cases. As a result, legal employment was channeled to lawyers approved by the union. The state bar association obtained an injunction to bar this practice. The Supreme Court ruled in favor of the union, concluding that its activities were protected by the First Amendment right of association. The Court explained that the state could neither interfere with these associational rights nor infringe upon the right to be fairly represented by counsel: A State could not, by invoking the power to regulate the professional conduct of attorneys, infringe in any way the right of individuals and the public to be fairly represented in lawsuits authorized by Congress to effectuate a basic public interest. Laymen cannot be expected to know how to protect their rights when dealing with practiced and carefully counseled adversaries, and for them to associate together to help one another to preserve and enforce rights granted them under federal laws cannot be condemned as a threat to legal ethics. The State can no more keep these workers from using their cooperative plan to advise one another than it could use more direct means to bar them from resorting to the courts to vindicate then-legal rights. The right to petition the courts cannot be so handicapped.[ ] Several years later, in United Transportation Union v. State Bar of Michigan, the Court commented on its Trainmen decision, stating that "[w]e held in that case that the First Amendment guarantees of free speech, petition, and assembly give railroad workers the right to cooperate in helping and advising one another in asserting their rights under [federal law]." The Court explained that the issue in Trainmen and related cases was "the basic right to group legal action," and the First Amendment protection of "collective activity undertaken to obtain meaningful access to the courts." Rule 1.8(e) does not interfere with such rights. Furthermore, the rule does not bar plaintiffs from "resorting to the courts to vindicate their legal rights." To the contrary, as discussed above, Rule 1.8(e)(2) ensures that the courts are open to indigent plaintiffs. We further note that neither Markham nor ATLA points to a single case in which a court has held that Rule 1.8(e) is unconstitutional, and our research uncovers none. Although Markham refers to Louisiana State Bar Association v. Edwins, the Edwins court did not hold that the ban on advances for living expenses was unconstitutional. Rather, the Edwins court merely expressed some doubt as to the constitutionality of such rules. Notably, the court referred to the Louisiana Constitution's express guarantee of "access to courts." We conclude that Rule 1.8(e)'s ban on lawyers advancing living expenses to clients is not unconstitutional. 4. Policy arguments Markham and ATLA advance several policy arguments in favor of permitting lawyers to advance living expenses to clients. Foremost, they claim that the practice assures that indigent clients can withstand pressure to settle their claims prematurely. They further suggest that the concerns about allowing lawyers to make such loans can be addressed through less restrictive means than a blanket prohibition. To this end, they observe that several jurisdictions have modified their rules to allow for advances for living expenses in certain circumstances. The Bar Association concedes that the prohibition may not be justified and that modification of the rule may be in order: [B]ar counsel is persuaded by a review of disciplinary cases in other jurisdictions and the professional conduct rules in the seven sister jurisdictions identified by ATLA [that have modified the rule to allow advances for living expenses] that these rationales or justifications are subject to good faith debate among reasonable lawyers and that serious consideration should be given to a review and revision of ARPC 1.8(e) to permit such assistance under certain circumstances. The Bar Association nonetheless contends that this appeal is not the appropriate vehicle for modifying Rule 1.8(e) on policy grounds. Instead, it argues that "there is an established procedure for promulgation and adoption of these rules which should not be ignored simply because both parties do not like the present rule." We agree. Under the Alaska Bar Association Bylaws, the Rules of Professional Conduct Committee is "responsible for reviewing suggested amendments to the [Alaska Rules of Professional Conduct] and making recommendations for amendments to the Board of Governors." While we express no opinion as to the merits of the policy arguments surrounding Rule 1.8(e), we note that members of the bar are free to suggest rule changes to the Rules of Professional Conduct Committee as the first step towards amending the rules. We see no reason to vary from this process in this case. B. Alaska Civil Btile 90.2 Apart from his concerns about Rule 1.8(e), Markham also argues briefly that a lawyer who has been approached by a child's guardian to represent the child's interests in a personal injury case is entitled to court approval of a proposed contingent fee and cost agreement before agreeing to undertake the representation. Under this proposal, a lawyer could "respectfully disagree" with the fee approved by the court and decline the representation. Markham further seeks clarification of Rule 90.2, which he alleges is "defective because it provides no standards." These arguments are undeveloped and Markham's brief "leavefe] most of the reasons supporting an improvement in ARCP 90.2 procedures and standards for the members of this Court to suggest and debate." We see no reason to usurp counsel's role. Because the argument is not adequately briefed, we deem it waived. C. Attorney's Fees Finally, in the last paragraph of his opening brief, Markham seeks attorney's fees: The Superior Court should be further instructed to award SH her reasonable attorney's fees for the excess effort incurred by her counsel in securing the approval of these loans under the guidelines of ARCP 82, or on a public interest basis. This award should be entered against the party this court feels was the real party in interest in the judgment below. In his reply brief, Markham further explains that "[t]his court should simply declare which organization (court or Bar?) was responsible for this rule and assess fees accordingly." We decline to award attorney's fees. Given that we reject Markham's claims for reimbursement under Rule 1.8(e), he is not the prevailing party within the meaning of Alaska Civil Rule 82. Moreover, Markham offers no reason to confer upon him the status of public interest litigant, and in our view he does not qualify as one. IV. CONCLUSION Because we conclude that Alaska Rule of Professional Conduct 1.8(e) prohibits lawyers from advancing funds for living expenses to clients and that the rule does not unconstitu tionally deny or infringe upon access to the courts, we AFFIRM the decision of the superior court. . 46 U.S.C. § 688 (1975 & Supp.1998). . See Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). . Id. . See American Bar Association, Annotated Model Rules of Professional Conduct vii (3d ed. 1996) (Annotated Model Rules). . Alaska Supreme Court Order No. 1123 (April 14, 1993). . Alaska R. Prof. Conduct 1.8(e). . Annotated Model Rules, supra, at 130. . 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 1.8:602, at 275 (2d ed. 1996 Supp.). . Charles W. Wolfram, Modern Legal Ethics § 9.2.3, at 509 (1986). . See Annotated Model Rules, supra, at 130-31 (compiling cases); see also Mississippi Bar v. Attorney HH, 671 So.2d 1293, 1296-98 (Miss.1995) (stating that the majority of courts have found that advancing living expenses "is violative of the Rules of Professional Conduct," and analyzing cases from Kentucky, Virginia, Oregon, South Carolina, and Arizona). . See Florida Bar v. Taylor, 648 So.2d 1190, 1192 (Fla.1994); Louisiana State Bar Ass'n v. Edwins, 329 So.2d 437, 445 (La.1976). . See Michael R. Koval, Note, Living Expenses, Litigation Expenses, and Lending Money to Clients, 7 Geo. J. Legal Ethics 1117, 1133 (1994) (stating that "[t]he Edwins court . stands virtually alone in its interpretation of DR5-103(B)"); see also Sims v. Selvage, 499 So.2d 325, 328 n. 1 (La.App.1986) (noting that the Edwins interpretation "has created problems within the profession that override any benefit to the client," and suggesting reconsideration of whether lawyers should be allowed to advance living expenses to clients). . 516 P.2d 1215, 1219-21 (Alaska 1973). . See id. at 1220-21. 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971). . See id. at 382-83, 91 S.Ct. 780. . 765 P.2d 1375 (Alaska 1988). . See id. at 1376. . Id. at 1377. . See id. at 1380. . See id. at 1378. As the Boddie Court explained: [W]e wish to re-emphasize that we go no further than necessary to dispose of the case before us.... We do not decide that access for all individuals to the courts is a right that is, in all circumstances, guaranteed by the Due Process Clause of the Fourteenth Amendment so that its exercise may not be placed beyond the reach of any individual, for, as we have already noted, in the case before us this right is the exclusive precondition to the adjustment of a fundamental human relationship [marriage]. 401 U.S. at 382-83, 91 S.Ct. 780. . See 401 U.S. at 374, 91 S.Ct. 780. . M.L.B. v. S.L.J., 519 U.S. 102, 117 S.Ct. 555, 563, 136 L.Ed.2d 473 (1996) (commenting upon United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973)). . Id. at 563-64. . Roller v. Gunn, 107 F.3d 227, 232 n. 1 (4th Cir.1997). . 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964). . See id. at 5, 84 S.Ct. 1113. . See id. . See id. . See id. at 2, 84 S.Ct. 1113. . See id. at 8, 84 S.Ct. 1113. . Id. at 7, 84 S.Ct. 1113 (citations omitted). . 401 U.S. 576, 91 S.Ct. 1076, 28 L.Ed.2d 339 (1971). . Id. at 578-79, 91 S.Ct. 1076. . Id. at 585, 91 S.Ct. 1076. . Trainmen, 377 U.S. at 7, 84 S.Ct. 1113. . 329 So.2d 437 (La.1976). . See id. . Id. . See William R. Strelow, Loans to Clients for Living Expenses, 55 Cal. L.Rev. 1419, 1431 (1967) ("[Tjhere is a substantial likelihood that a destitute claimant will be compelled to abandon his claim or settle it for a trifling amount unless he can obtain financial assistance."); Koval, supra, at 1118 ("There are several good reasons why a lawyer should be able to lend a client money for living expenses. First, and most importantly, sometimes a client simply will not be able to pursue a claim if he cannot meet his basic living expenses. He may be forced to settle for a smaller amount than he deserves."); Dawn S. Garrett, Comment, Lending a Helping Hand: Professional Responsibility and AttorneyClient Financing Prohibitions, 16 U. Dayton L.Rev. 221, 246 (1990) ("The purpose of the prohibition is to prevent oppression in the legal system by the wealthy. This purpose will be frustrated if an impoverished client can be forced by means of financial hardship to accept the inadequate settlement offer of a wealthier opponent who can afford to wait out the delays of litigation."). .See Alabama Rule of Professional Conduct 1.8(e)(3); California Rule of Professional Conduct 4-210(A)(l) & (2); District of Columbia Rule of Professional Conduct 1.8(d)(2); Minnesota Rule of Professional Conduct 1.8(e)(3); Montana Rule of Professional Conduct 1.8(e)(3); North Dakota Rule of Professional Conduct 1.8(e)(3); Texas Disciplinary Rule of Professional Conduct 1.08(d)(1); Disciplinary Rule 5-102(B) of the Vermont Code of Professional Responsibility- . Alaska Bar Bylaws, article VII, section 1(a)(9). . Rule 90.2 provides in relevant part: (a) Approval of Settlement of Claims on Behalf of Minors. (1) Approval. A parent or guardian of a minor who has a claim against another person has the power to execute a full release or a covenant not to sue, or to execute a stipulation for entry of judgment on such claim. However, before such a document is effective, it must be approved by the court upon the filing of a petition or motion. (3) Attorneys' Fees and Costs. The court shall approve any attorneys' fees and costs that are to be paid from the settlement proceeds when the minor claimant is represented by counsel. . See Adamson v. University of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991). . Rule 82 provides in pertinent part: (a) Allowance to Prevailing Party. Except as otherwise provided by law or agreed to by the parties, the prevailing party in a civil case shall be awarded attorney's fees calculated under this rule. . See, e.g., Valley Hosp. Ass'n v. Mat-Su Coalition for Choice, 948 P.2d 963, 972 n. 21 (Alaska 1997) (stating criteria for public interest litigant status).

11803875

Alan R. NEWBY, Appellant, v. STATE of Alaska, Appellee

Newby v. State

1998-11-13

No. A-6692

1008

1016

967 P.2d 1008

967

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:53:33.876399+00:00

CAP

Before COATS, C.J., and MANNHEIMER and STEWART, JJ.

Alan R. NEWBY, Appellant, v. STATE of Alaska, Appellee.

Alan R. NEWBY, Appellant, v. STATE of Alaska, Appellee. No. A-6692. Court of Appeals of Alaska. Nov. 13, 1998. Rehearing Denied Dec. 7, 1998. Marcia E. Holland, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for Appellant. Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before COATS, C.J., and MANNHEIMER and STEWART, JJ.

4936

31111

OPINION MANNHEIMER, Judge. In 1993, Alan R. Newby was convicted of murdering a Fairbanks man named Mark Lacy. Three years later, Newby petitioned the superior court for post-conviction relief. In his petition, Newby asserted that he received ineffective assistance from his trial attorney, Dick Madson. Newby contended that Madson might have defended him better in various ways, but Newby's primary allegation was that Madson should not have represented him at all because Madson had a conflict of interest. Superior Court Judge Mary E. Greene found that Madson had not had a conflict of interest, and she further found that Madsoris representation of Newby had been competent in all other respects. Judge Greene therefore denied Newby's petition. Newby now appeals the superior court's ruling. For the reasons explained here, we affirm the superior court. Facts of the case In February 1991, Mark Lacy was discovered in his trailer with a single gunshot wound to his head. There was no sign of a forced entry and no evidence of a struggle. Moreover, most of Lacy's belongings were undisturbed. The only items missing from the trailer were Lacy's car, some firearms, and a telephone. Newby was arrested after he was found in possession of Lacy's car. The missing telephone was discovered at Newby's residence. While he was in custody, Newby attempted to sell two shotguns that were identified as similar to the ones taken from Lacy's home. In February 1992 (about a year after the homicide), Newby told a fellow inmate that he had shot and killed a man. Several weeks later, Newby told a different inmate that he had killed a man in Fairbanks. Newby said that he had shot this man in the head during an argument, and that he had stolen various items from the residence — a 9-mm. handgun (which Newby identified as a "Tech-9"), a camera, and a car. Newby was indicted for Lacy's murder and for the theft of the property from Lacy's residence. He hired Dick Madson to represent him. Newby's claim that Madson had a conflict of interest. Newby asserts that, when Madson was defending him, Madson had a conflicting loyalty. According to Newby, this conflicting loyalty stemmed from Madsoris ties to another attorney, Kenneth Covell, and Covell's ties to a man named Glen Wood. (a) Madson's ties to Covell Madson rented office space to Covell. The two attorneys kept their files and their finances separate, but Covell would sometimes stand in for Madson at court hearings when Madson was unavailable. For this service, Covell received a credit ($30 per hour) against his rent. Covell in fact attended several hearings on Madsoris behalf in Newby's case: the omnibus hearing, a trial-setting conference, and proceedings during Newby's first trial to discuss certain communications from the jury. Nothing of substance occurred at the omnibus hearing and the trial-setting conference. The jury communications, on the other hand, ultimately led the court to declare the jury hung and to declare a mistrial. Thus, Covell was acting as Newby's legal representative when the superior court issued the order that ended Newby's first trial. However, according to Judge Greene's later findings, it was Newby who was "adamant that the jury be declared hung and a mistrial occur". In addition to Covell's willingness to appear in court for Madson, the two attorneys would sometimes confer on legal issues or tactics in their respective cases. Moreover, Covell would sometimes voluntarily give Madson a portion of the fees he received in particular cases. (b)Covell's ties to Glen Wood, and Wood's ties to the murder prosecution At the same time that Madson was defending Newby in the murder prosecution, Covell was pursuing a civil lawsuit against the State of Alaska on behalf of a man named Glen Wood. This lawsuit was peripherally connected to Mark Lacy's death. Following Lacy's death, while Lacy's house was cordoned off for investigative purposes, Wood contacted the State Troopers and informed them that a safe was hidden beneath the floorboards of Lacy's house. Wood told the troopers that the safe was his and that it contained $10,000. Wood explained that he had been storing the safe in Lacy's house, and he asserted that only four people knew about the safe: Wood himself, Wood's girlfriend, Wood's ex-wife, and Lacy. Alerted by Wood, the troopers located and retrieved the safe. However, the safe was locked, and Wood refused to help the troopers open it; the troopers therefore procured the services of a locksmith. When the troopers opened the safe, they found approximately $11,000 in cash. They also found plastic bags with trace amounts of cocaine. The State refused to relinquish the money to Wood, claiming that the money was subject to forfeiture because it represented proceeds from the illegal sale of drugs. Wood hired Covell as his lawyer and sued the State to obtain the money. As noted above, Wood's lawsuit was pending at the same time that the State was prosecuting Newby for Lacy's murder. Covell did all the work in Wood's case, but Covell conferred with Madson about the case because Madson had another, unrelated case that raised similar issues. In addition to his lawsuit against the State, Wood had a separate, more direct link to the murder prosecution: he was the owner of one of the firearms stolen from Lacy's residence at the time of the murder. As noted above, Newby told a fellow inmate that he had shot a man in the head during an argument, and that he had stolen a 9-mm. handgun (which Newby identified as a "Tech-9") from the man's residence. Wood had lent a "Tech-9" to Lacy. For this reason, the government called Wood as a witness at grand jury and at both of Newby's murder trials. However, Wood did not testify concerning the safe at either of Newby's trials, nor was any other evidence about the safe introduced at those trials. (c) Newby's allegations in the petition for postconviction relief In his petition for post-conviction relief, Newby asserted that Madson was incapable of giving his full loyalty to Newby because Covell was representing Wood in the civil suit against the State, and because Wood was a government witness in the murder prosecution. According to Newby, Madson's conflicting loyalty arose either (1) from Mad-son's on-going relationship with Covell (which Newby analogized to a partnership), or (2) from Madson's expectation of financial gain from any successful conclusion of Wood's lawsuit against the State. Newby further asserted that Madson's conduct of the murder defense had been tainted by this conflicting loyalty. Newby first argued that, because Madson's "partner" (Covell) was representing an adverse witness (Wood), Madson was obliged to disclose this fact and obtain Newby's consent. Newby next contended that there was plausible evidence linking Wood to Lacy's murder, but that Madson declined to raise this defense because any suggestion that Wood was the murderer would harm Covell's chances for a successful conclusion of Wood's lawsuit to recover the $11,000. Newby also argued that there was plausible evidence that Lacy was a cocaine dealer, thus raising the possibility that some unknown person had murdered Lacy during a cocaine deal that went bad. Again, Newby asserted that Madson declined to investigate or present this defense because such a defense would tend to jeopardize Wood's civil lawsuit. (That is, evidence that Lacy was a cocaine dealer would tend to support the government's position that the $11,000 recovered from the safe was in fact money derived from the illegal sale of drugs.) (d) Judge Greene's findings After an evidentiary hearing, Superior Court Judge Mary E. Greene concluded that Newby had failed to show that Madson's representation of Newby was affected by any conflicting loyalty. She issued a written order in which she made the following findings: When Newby and Madson discussed trial strategy, Newby urged Madson to advance the defense that (1) Lacy was a cocaine user and possibly a cocaine dealer, and (2) Lacy had been murdered during a drug sale (by someone other than Newby). Madson investigated this defense, but he found no credible evidence to support it. Later, in Newby's petition for post-conviction relief, Newby listed the names of various people who (he asserted) could testify that Lacy either used or sold cocaine. However, Newby never told Madson about these potential witnesses. Madson also considered and rejected the theory that Lacy had been murdered by someone (perhaps Glen Wood) who had wanted to steal the money from the safe. Madson in fact interviewed Wood during his investigation of this potential defense. However, Madson learned that Wood had been out of town when Lacy was killed. Moreover, Madson was unable to find any evidence that anyone else knew of the safe's existence (anyone other than Wood, Lacy, and the two other people that Wood named). Additionally, Lacy's house was left undisturbed — indicating that no one had actively searched for the safe. In sum, Madson recognized the potential relevance of the safe, the money, and the trace amount of cocaine, but (for the reasons detailed above) he ultimately chose not to introduce evidence concerning the safe and its contents. Judge Greene concluded that Madson's decision was "based on tactical reasons unconnected with Covell's representation of Wood" in the civil suit. Judge Greene did not decide whether Madson's office-sharing arrangement with Covell constituted the equivalent of a law firm or partnership. Instead, she concluded that even if Madson's arrangement with Co-vell should be deemed a "firm" for conflict of interest purposes, no active conflict of interest had been shown. Judge Greene found that Madson had no conflict of interest with regard to Wood and his civil suit against the State. Madson never spoke with Wood about the suit, and all of the legal work was handled by Covell. Mad-son received no money from the settlement of this lawsuit. Judge Greene recognized that Covell had a potential conflict of interest when he substituted for Madson and appeared on behalf of Newby at the omnibus hearing, the scheduling hearing, and the jury-communication hearings that ultimately resulted in the declaration of a mistrial at Newby's first trial. However, Judge Greene found that Covell's loyalty to Wood did not affect Covell's actions or decisions on behalf of Newby at these hearings. Thus, Judge Greene concluded, the actions and decisions taken by Madson and Covell on behalf of Newby were not influenced by Covell's representation of Wood. (e) Allegations of conflict of interest: what must be proved, and who bears the burden of proof? Before we review the merits of Judge Greene's ruling, we must resolve a preliminary question: which party — Newby or the State — bore the burden of proof in the superior court? Newby asserts that Judge Greene's findings are flawed because she improperly placed the burden of proof on New-by. Newby's underlying claim is that he received ineffective assistance of counsel because his attorney had a conflict of interest. Logically, such a claim potentially comprises three elements: 1) that the attorney had a loyalty to someone else or, alternatively, some personal interest at stake in the ease; 2) that the attorney's loyalty to someone else (or the attorney's self-interest) actively conflicted with the attorney's loyalty to the defendant, in the sense that this outside loyalty or self-interest actually affected the attorney's preparation or presentation of the defendant's case; and 8) that if the attorney had not allowed this conflicting loyalty or self-interest to affect his or her representation of the defendant, then the outcome of the case would have been different. Despite the fact that, logically, a conflict-of-interest claim comprises these three elements, the United States Supreme Court held in Guyler v. Sullivan that, as a matter of federal constitutional law, defendants should not be forced to prove the third element. If a defendant proves that their attorney labored under a conflicting interest, and if the defendant also proves that this conflicting interest actually, affected the attorney's actions or decisions in the defendant's case, then the defendant is entitled to relief regardless of whether the defendant can show "prejudice" — can show that the outcome of the case was affected by the attorney's tainted actions or decisions. However, Sullivan also held that when a defendant does not raise a conflict-of-interest claim until after trial, the defendant bears the burden of proving elements 1 and 2— proving that the attorney had a conflicting-loyalty and that this conflicting loyalty actually affected the attorney's actions or decisions. Alaska law is somewhat different. In Moreau v. State , the Alaska Supreme Court held that, whenever two or more co-defendants are represented by the same attorney, the trial judge has a duty to advise these defendants of the risks of joint representation and to inquire if, being advised of these risks, the defendants still wish to be represented by the same attorney. If the trial judge fails to conduct this inquiry (or if the appropriate waivers are not obtained from the affected defendants), then if one of these defendants later claims that their attorney's representation was affected by a conflict of interest, it is the State that bears the burden of disproving element 2 beyond a reasonable doubt. That is, the State must prove beyond a reasonable doubt that the attorney's multiple loyalties did not affect the attorney's representation of the complaining defendant. (In such cases, element 1 is obviously a foregone conclusion.) In State v. Celikoski , this court applied the Moreau rule to a slightly different situation. Celikoski involved two defendants who were ostensibly represented by two different attorneys, one from Alaska and the other from out of state. However, the Alaska rules of court require an out-of-state attorney to associate with an Alaska attorney. Unbeknownst to Celikoski, Celikoski's own attorney was acting as the Alaska associate of his co-defendant's out-of-state attorney. In that capacity, Celikoski's attorney consulted with the out-of-state attorney about the co-defendant's case. We held that, under such circumstances, Moreau supplied the governing rule: the State bore the burden of proving that this conflict of interest had not affected the representation Celikoski received from his attorney. [I]n order to qualify for post-conviction relief, Celikoski need[ed] only [to] establish that [his attorney] had undertaken the dual representation and that the trial judge did not "personally advise [Celiko-ski] of [the] potential dangers inherent in dual representation." Moreau, at 284. Once Celikoski proved this, . "the burden [then shifted] to the state to prove beyond a reasonable doubt that a prejudicial conflict did not exist." Id. Celikoski, 866 P.2d at 142. On one level, it may seem surprising to apply the Moreau rule to the situation presented in Celikoski. The Moreau rule was created for cases in which two or more defendants appear in court represented by the same attorney. This circumstance puts both the judge and the State on notice that there is a potential problem, and the trial judge is motivated to conduct the mandated inquiry because, if the trial judge fails to do so, any ensuing conviction is much more subject to collateral attack. But requiring a trial judge to advise defendants of the dangers of joint representation, and requiring a trial judge to obtain waivers from the affected defendants, seemingly makes sense only if the trial judge is on notice that there is a problem. In Celikoski, the trial judge was unaware that Celikoski and his co-defendant were represented by the same attorney; indeed, Celikoski was likewise unaware of his peril. And so, of course, the judge made no inquiry. On another level, however, there is good reason to make the government shoulder the burden of proof in cases like Celikoski. The defendant in Celikoski was obviously in much more need of protection than the defendants in Moreau—because, unlike the defendants in Moreau, Celikoski did not know that his attorney was simultaneously representing a co-defendant. Such a conflict potentially infects every major aspect of the representation: planning the defense strategy, investigating the case, deciding whether to seek or accept a negotiated settlement, deciding how to present and argue the case, and (if the client is convicted) deciding how to approach sentencing. When a defense attorney operates under such a fundamental and pervasive conflict of interest, the effectiveness of the representation and the fairness of the defendant's trial are placed in grave doubt. In these circumstances, we could properly require the highest degree of proof that the defendant suffered no adverse affect before we set our judicial imprimatur on the defendant's conviction. Newby argues that, because he was unaware of Madson's potential conflicting loyalty to Wood, his case should be governed by the same rule we applied in Celikoski. According to Newby, once he showed that Mad-son had a potentially conflicting loyalty to Wood, then it was the State's burden to prove beyond a reasonable doubt that Mad-son's loyalty to Wood had no effect on Mad-son's actions and decisions in Newby's ease. The State responds that Celikoski has been "overruled" by the enactment of AS 12.72.040, which declares that "[a] person applying for post-conviction relief must prove all factual assertions by clear and convincing evidence." We conclude that we need not decide whether the holding in Celikoski has been superseded by statute. Even if Celikoski has survived the enactment of AS 12.72.040, Celikoski does not govern Newby's case. Instead, Newby's case is governed by our decision in LaPierre v. State. In LaPierre, different attorneys in the Public Defender Agency were representing LaPierre and another man named David Simmons. LaPierre's and Simmons's cases were unrelated, but the Agency nevertheless asked the trial court for permission to withdraw from LaPierre's case. LaPierre's assistant public defender asserted that the Agency faced a conflict of interest because LaPierre might be called as a witness in Simmons's case. The trial court denied this motion and ordered the Agency to continue representing both men. On appeal, LaPierre asserted that he had received ineffective assistance of counsel because his attorney (or, rather, his attorney's law firm, the Public Defender Agency) had a conflicting loyalty to Simmons. Apparently analogizing his case to Moreau, LaPierre argued that it was the State's burden to prove beyond a reasonable doubt that La-Pierre's legal representation had not been affected by this alleged conflict of interest. This court rejected LaPierre's argument and instead held that it was LaPierre's burden to prove that the Public Defender Agency's loyalty to Simmons actually affected the Agency's representation of LaPierre. Even assuming [that LaPierre established] an actual conflict of interest ., he is incorrect in maintaining that a per se rule of reversal applies. We decline to find that reversal automatically follows upon a bare showing of conflict of interest. Our view reflects the position adopted recently by the United States Supreme Court in Cuyler v. Sullivan [citation omitted] and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In this case, LaPierre has, at most, demonstrated the existence of a conflict in the abstract. He has neither alleged nor demonstrated that his counsel "actively represented conflicting interests" or that the purported conflict "adversely affected his lawyer's performance." . To the contrary, it appears that LaPierre was never actually called as a witness or required to testify at Simmons' trial. LaPierre has failed to make an adequate showing to justify a presumption of prejudice under the Cuyler [sic: Sullivan ] and Strickland standard. LaPierre, 734 P.2d at 1003-04. In other words, when the alleged conflict of interest involved the potentially conflicting interests of clients in unrelated cases, then even though the potential conflict was explicitly brought to the trial judge's attention, we concluded that Moreau no longer provided the governing rule. Instead, we followed Sullivan and placed the burden of proof on LaPierre. As explained above, LaPierre was a case in which the alleged conflict of interest arose from the fact that (1) two attorneys within the same law firm (2) were representing different clients in different cases, and (3) these clients had potentially conflicting interests. Newby's ease is similar: Newby asserted that there was a substantial link between his attorney (Madson) and another attorney (Coveil), and that this other attorney had a client (Wood) who potentially could be called as a witness at Newby's trial. The one significant difference between Newby's ease and LaPierre is that Newby faced an additional legal hurdle: the State did not concede that Madson and Coveil were so closely affiliated that a conflicting interest of one should be imputed to the other. If LaPierre governs Newby's case, then Newby bore the burden of proving (1) that Madson had a conflicting loyalty to Wood (through Covell), and (2) that this conflicting loyalty actually affected Madson's representation of Newby. Seeking to avoid this result, Newby argues that he is entitled to application of the Moreau rule (under which the State bears the burden of proof) because, like the defendant in Celikoski, Newby remained ignorant of his attorney's potential conflict. We conclude, however, that New-by's lack of awareness is not the deciding factor. The difference between Moreau and Celi-koski, on the one hand, and LaPierre, on the other, is the type of conflict presented. Mor-eau and Celikoski involved a particularly egregious type of conflicting interest: an attorney who owed simultaneous and equal loyalty to two defendants in the same criminal litigation. LaPierre, on the other hand, involved an assertion of conflict that could be made more frequently: the assertion that the defendant's attorney was affiliated in some way with another attorney, and that this other attorney had a client whose interests did not coincide with the defendant's interests. We held in LaPierre that, even though the defendant had brought this potential conflict directly to the attention of the trial judge, it was still the defendant's burden on appeal to prove (1) that the alleged conflict of interest really existed, and (2) that this conflicting interest actually affected the defense attorney's representation of the defendant. We reach the same legal conclusion in Newby's ease. It was Newby's burden to prove that Madson had a conflicting loyalty and that this conflicting loyalty actually affected Madson's representation of Newby. (f) Are Judge Greene's findings clearly erroneous? As explained above, Judge Greene ruled that Newby had failed to prove that Madson had a conflicting loyalty to Wood and that this outside loyalty affected his representa tion of Newby. Because (as explained in the preceding section) we agree with Judge Greene that Newby bore the burden of proof on these questions, the remaining issue is whether Judge Greene's findings are clearly erroneous. Newby renews his argument that the affiliation between Madson and Covell constituted a "firm", so that any conflicting loyalty that Covell owed to Wood should be imputed to Madson. Judge Greene did not directly rule on this issue. However, given Judge Greene's findings of fact concerning the relationship between Madson and Covell, Alaska law suggests that these two lawyers did not constitute a firm. The commentary to Alaska Professional Conduct Rule 1.10 highlights certain hallmarks of a "firm": (1) lawyers who represent themselves to the public as one professional entity, (2) lawyers who have a formal agreement among themselves concerning the management of their practice and the sharing of income, and (3) lawyers who have mutual access to confidential information concerning each other's clients. The commentary adds, "[T]wo practitioners who share office space and occasionally consult or assist each other ordinarily would not be regarded as constituting a firm." Under these guidelines, it appears that Madson and Covell did not constitute a "firm" for the purpose of imputing Covell's client loyalties to Madson. However, like Judge Greene, we find it unnecessary to decide this issue. Even assuming that Co-vell's loyalty to Wood could somehow be imputed to Madson, Newby failed to show that Madson's conduct of his defense was actually affected by the potentially conflicting loyalty to Wood. Judge Greene found that Madson had actively considered and investigated the potential relevance of the safe hidden in Lacy's house (and the money and traces of cocaine found in that safe). She also found that Madson had concluded, for reasons unaffected by any supposed loyalty to Wood, that it would not be fruitful to build Newby's defense upon this evidence. At Newby's urging, Madson investigated the possibility that Lacy was a cocaine dealer who had been murdered in connection with a drug deal. Madson found no credible evidence to support such a defense. When Newby litigated his action for post-conviction relief, he asserted that various witnesses were available who could testify that Lacy was a cocaine dealer; however, Newby never supplied this information to Madson. Similarly, Madson considered the possibility that Wood had killed Lacy to recover the money in the safe. However, Madson discovered that Wood had been out of town when Lacy was murdered. Moreover, if Madson were to argue that Wood killed Lacy to recover the safe, Madson would have to explain why Wood left the safe in Lacy's house and then called the State Troopers to ask their assistance in recovering it. Finally, Madson considered and investigated the possibility that Lacy had been murdered by someone else (other than Wood) who knew about the safe and the money. However, Madson was unable to discover any evidence indicating that the presence of the safe was known to anyone outside the four people mentioned by Wood: Wood, his girlfriend, his ex-wife, and Lacy. And if Madson were to argue that someone else had come to Lacy's house to steal the safe, he would have to explain why Lacy's house was undisturbed. Judge Greene's findings of fact concerning Madson's investigation and planning of New-by's defense support the judge's ultimate conclusion that Madson's representation of Newby was not affected by any supposed loyalty to Wood. Newby has not shown that Judge Greene's findings of fact are clearly erroneous. We therefore uphold Judge Greene's findings, and, like Judge Greene, we conclude that Newby failed to prove that Madson's representation was affected by any conflicting loyalty. Newby's claims that Madson, apart from any conflict of interest, represented him incompetently. Apart from allegations of conflict of interest, Newby asserts that Madson represented him incompetently when Madson (1) failed to dispute the State's evidence concerning the time of Lacy's death, (2) failed to adequately investigate the possibility that Lacy's murder was a drug-related homicide, and (3) failed to call certain witnesses on Newby's behalf. After hearing Newby's allegations, Judge Greene concluded that Newby had failed to prove that Madson's actions fell below the range of competency expected of criminal law practitioners. Under Risher v. State , a defendant who alleges ineffective assistance of counsel must demonstrate that their attorney failed to "perform at least as well a lawyer with ordinary training and skill in the criminal law". The law presumes that an attorney has acted competently, and that the attorney's decisions were prompted by sound tactical considerations. To prevail in a post-conviction relief action based on ineffective assistance of counsel claim, the defendant must rebut this presumption. In the superior court, Newby did little other than argue that Madson should have done more investigation and should have pursued several of Newby's own defense theories (including the theory that Lacy was killed by someone who was upset by a drug transaction). In answer to Newby's claims, Madson explained that he did not have any witnesses to corroborate Newby's theory that Lacy had been a drug dealer, nor did he have credible witnesses to support any of Newby's other theories regarding Lacy's death. The record suggests that Madson, after investigating and rejecting these theories, decided to focus on rebutting and discrediting the State's evidence rather than trying to discover alternative killers. The record shows that Madson considered Newby's theories of the case, conducted a reasonable investigation of the case, and then formulated a reasonable defense strategy. Like Judge Greene, we conclude Newby failed to prove that he received ineffective assistance of counsel. Conclusion The judgement of the superior court is AFFIRMED. . 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). . Id., 446 U.S. at 349-350, 100 S.Ct. at 1719. . See id., 446 U.S. at 348-49, 100 S.Ct. at 1718. . 588 P.2d 275, 284 (Alaska 1978). . 866 P.2d 139 (Alaska App.1994). . See Alaska Civil Rule 81(a)(2)(a)-(b). . Celikoski, 866 P.2d at 140. . Bracketed text indicates an editorial change by this court; the text in braces appeared in brackets in the original. . See State v. Olsen, 258 N.W.2d 898, 905 (Minn.1977) (cited in Moreau, 588 P.2d at 283 n. 26). . See also Alaska Criminal Rule 35.1(g), which provides (in pertinent part): "Unless otherwise required by statute or constitution, the applicant [for post-conviction relief] bears the burden of proving all factual assertions by clear and convincing evidence." . 734 P.2d 997 (Alaska App.1987). . Id. at 1003. . See Donnybrook Building Supply v. Interior City, 798 P.2d 1263, 1266 (Alaska 1990) (a trial court's findings concerning the underlying facts will be upheld unless they are clearly erroneous). See also Alaska Civil Rule 52(a): "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." . Comment to Alaska Rule of Professional Conduct 1.10, "Definition of 'Firm'", first paragraph. . 523 P.2d 421, 424 (Alaska 1974). . See State v. Jones, 759 P.2d 558, 569 (Alaska App.1988).

10460138

Ivar ISAKSON et al., Appellants, v. Roy RICKEY et al., Appellees

Isakson v. Rickey

1976-05-21

No. 2550

359

369

550 P.2d 359

550

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:51:19.086324+00:00

CAP

Before RABINOWITZ, CONNOR, ERWIN and BURKE, Justices, and DIMOND, Justice Pro Tem.

Ivar ISAKSON et al., Appellants, v. Roy RICKEY et al., Appellees.

Ivar ISAKSON et al., Appellants, v. Roy RICKEY et al., Appellees. No. 2550. Supreme Court of Alaska. May 21, 1976. Randall J. Weddle, Faulkner, Banfield, Doogan & Holmes, and James F. Clark, Robertson, Monagle, Eastaugh & Bradley, Juneau, for appellants. Avrum M. Gross, Atty. Gen., and Rodger W. Pegues, Asst. Atty. Gen., Juneau, for appellees. Before RABINOWITZ, CONNOR, ERWIN and BURKE, Justices, and DIMOND, Justice Pro Tem.

5980

37230

OPINION ERWIN, Justice. This appeal involves a challenge to a section of Alaska's Limited Entry Act, AS 16.43.010 et seq., which was enacted by the State Legislature in 1973. The Act created the Alaska Commercial Fisheries Entry Commission and a scheme for precluding entry of some fishermen into the Alaska commercial fisheries. Appellants, all Alaska commercial fishermen, contend that a certain provision of the Act denies them equal protection of the laws and is therefore unconstitutional. A brief review of the history of limited entry in Alaska is necessary to understand the positions of the litigants. In the past, entry into commercial fishing was relatively easy because the industry provided inexpensive financing for boats and gear. As a consequence even people engaged in other primary employment could obtain the funds necessary to begin fishing commercially and, because it was not the major source of their livelihood, could afford to participate at marginal economic levels. Since 1960, the commercial use of the various authorized gear used for taking fish has required a gear license. While more than one person could participate in operating a given unit of gear, i. e., partners, crewmen, spouses or children, each unit engaged in commercial fishing generally had but one gear license. Accordingly, the number of gear licenses actively in use represented the number of units of gear actually engaged in any fishery. Between 1960 and 1972, the number of units of gear licensed in the Alaska salmon fisheries increased from 6,512 to 11,363. Thus, while the supply of salmon decreased, the fishing effort measured by the number of units of gear operating in the fisheries increased significantly. The commercial fisheries are unquestionably an important economic resource of the State. To maintain the maximum biological and the optimum economic sustained yields for those engaged in commercial fishing, it became apparent that some action was necessary. In August, 1972, the people of Alaska voted overwhelmingly to amend the State Constitution to permit the adoption of a limited entry program for the commercial fisheries. In January of 1973, the Governor proposed legislation for a limited entry program to the state legislature. As introduced, the bill required entry permits in order to operate gear after January 1, 1974. The Alaska Commercial Fisheries Entry Commission was established under the bill to determine who would receive the limited number of permits, with selection to be based upon certain hardship standards, e. g., degree of economic dependence on the fishery and extent of past participation in the fishery. It was specifically provided that those who received the entry permits could subsequently sell them at fair market value. With regard to who could submit applications, the original bill provided that the "commission shall establish the opening and closing dates, places and form of applica tion for entry permits. . . . " When the bill was before the legislature, it was modified so that only holders of gear licenses could apply for the entry permits. Finally, just prior to being sent to the Governor for approval, the bill was again changed to read: The commission shall accept applications for entry permits only from applicants who have harvested fishery resources commercially while participating in the fishery as holders of gear licenses issued under AS 16.05.536-16.05.670, before January 1, 1973. (Emphasis added) The case at bar concerns this added provision, hereinafter referred to as AS 16.-43.260(a). The plaintiffs in the action below (and the appellants herein) became holders of gear licenses after January 1, 1973. These plaintiffs sought a declaratory judgment, a preliminary injunction, and a permanent injunction against the Commercial Fisheries Entry Commission (appellees herein), to prevent enforcement of the Act. The plaintiffs argued, among other things, that the cut-off date of January 1, 1973, which prevented them from submitting an application for a free commercial fishing entry permit, denied them equal protection of the laws. Following a hearing, the motion for a preliminary injunction was denied and cross motions for summary judgment were filed. The trial court granted appellees' motion for summary judgment. The plaintiffs below appeal the trial court's decision, contending that the date utilized in AS 16.43.260(a) violates the equal protection clause of the Fourteenth Amendment to the United States Constitution which prohibits states from denying "to any person within its jurisdiction the equal protection of the laws," and under the similar provision of the Alaska Constitution, art. I, § 1. Specifically, appellants argue that the legislature devised the January 1, 1973, cut-off date to facilitate the Commission's selection process by eliminating those applicants whom they believed would be unable to demonstrate the hardship necessary for an entry permit. From this base they submit that the January 1, 1973, date results in a classification which is overbroad and underinclusive. Appellants point out that a person who has retired or discontinued commercial fishing prior to January 1, 1973, is allowed to apply for a free permit regardless of the degree of hardship he would suffer by being excluded from the fisheries simply by virtue of fortuitously holding a gear license before the cut-off date. On the other hand, persons such as appellants, are precluded from even submitting an application because they became gear license holders after January 1, 1973. This is so despite the fact that they have engaged in commercial fishing^ endeavors in previous years and have invested large amounts of money in gear and vessels with the intention of fishing commercially for a living in the future. Thus, they submit, the classification is unconstitutional. In the past this court has applied the traditional tests in analyzing equal protection problems. Thus, previous cases have spoken in terms of the "rational basis" test and the "compelling state interest" test, depending on whether or not the right sought to be regulated was fundamental in a constitutional sense or involved a suspect classification. Too often, however, the label applied preordained the outcome of the case. Because of this fact, recent decisions by this court noted a growing dissatisfaction with the two-tiered test. In State v. Wylie, we observed: Several recent decisions of the Supreme Court of the United States have evidenced discontent with the strict scrutiny standard called for by the "compelling state interest" test and the "minimal scrutiny" resulting from employment of the "rational basis" criteria. For an analysis of this development see Professor Gunther's foreword to The Supreme Court, 1971 Term. 86 Harv.L.Rev. 1, 17-24 (1972). In State v. Adams we cited the above passage from Wylie and recognized that the United States Supreme Court "may be searching for a new equal protection analysis." In a subsequent opinion, Lynden Transport, Inc. v. State, we wrote: It has been suggested that there is mounting discontent with the rigid two-tier formulation of the equal protection doctrine, and that the United States Supreme Court is prepared to use the clause more rigorously to invalidate legislation without expansion of "fundamental rights" or "suspect" categories and the concomitant resort to the "strict scrutiny" tests. We are in agreement with the view that the Supreme Court's recent equal protection decisions have shown a tendency towards less speculative, less deferential, more intensified means-to-end inquiry when it is applying the traditional rational basis test and we approve of this development. Finally, in Ravin v. State, the court quoted the foregoing passage from Lynden Transport, and, in addition, noted that "[tjhis court has previously applied a test different from the rigid two-tier formulation to state regulations." The different test was enunciated in Wylie v. State , despite the fact that we utilized the "compelling state interest" standard therein because the constitutional right to travel was affected by the legislation. In Wylie we articulated a "rational basis" test which was more demanding than the standard used in previous cases. Citing two United States Supreme Court cases in which the rational basis standard was applied in a fairly rigorous, non-deferential way we wrote: Under the rational basis test, in order for a classification to survive judicial scrutiny, the classification "must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike." It is this more flexible and more demanding standard which will be applied in future cases if the compelling state interest test is found inappropriate. As a result, we will no longer hypothesize facts which would sustain otherwise questionable legislation as was the case under the traditional rational basis standard. Thus, under the new test Judicial deference to a broad range of conceivable legislative purposes and to imaginable facts that might justify classifications is strikingly diminished. Judicial tolerance of overinclusive and un-derinclusive classifications is notably reduced. Legislative leeway for unexplained pragmatic experimentation is substantially narrowed. This new standard will, in short, close the wide gap between the two tiers of equal protection by raising the level of the lower tier from virtual abdication to genuine judicial inquiry. The threshold determination, then, is whether the compelling state interest test is applicable herein. In view of the fact that we do not consider the classification in question to be suspect and do not consider the right to a limited entry permit to be a fundamental right, the state will not be held to the higher standard in this case. Instead, we shall apply the new rational basis standard. Therefore, the question presented is whether the circumstance of holding a gear license before January 1, 1973, bears a fair and substantial relation to the purpose sought to be advanced by AS 16.43.260(a), when examining intensively the means used and the reasons advanced therefor. In applying this modified rational basis test, we must first look at the purpose of the challenged legislation. We note at the outset that the only committee reports which would provide an insight into the legislative history of AS 16.43.260(a) are inconclusive on the purpose of the legislation. This is understandable in view of the fact that the official records reflect that the January 1, 1973, cut-off date was a last minute change. We can, however, look to the statement of purpose of the Alaska Limited Entry Act itself upon the assumption that the provision was enacted to further that expressed purpose. AS 16.43.-010 provides as follows: It is the purpose of this chapter to promote the conservation and the sustained yield management of Alaska's fishery resource and the economic health and stability of commercial fishing in Alaska by regulating and controlling entry into the commercial fisheries in the public interest and without unjust discrimination. To implement this policy, only holders of an entry permit would be allowed to operate gear for commercial fishing after January 1, 1974. To avoid unjust discrimination the Act instructed the Commission to rank applicants for the limited number of permits "according to the degree of hardship which they would suffer by exclusion from the fishery." As previously noted, the bill as originally introduced by the Governor placed no limitation on prospective applicants; later, however, the legislature added the provision requiring that an applicant be a gear license holder. As appellees point out, because there was no deadline set for submitting applications, the bill encouraged fishermen to become gear license holders before the cut-off date was ultimately determined by the Commission. The figures indicate that this was indeed the case; applications for gear licenses during the first months of 1973 increased significantly over past years. Appellees contend that it was this rush for gear licenses which provoked the legislature to insert the contested provision that only holders of gear licenses issued before January 1, 1973, could submit applications to the Commission for an entry permit. They maintain that this justifies the classification. This argument assumes that more gear licenses meant more gear in already depleted fisheries, and that a heavy influx of gear into certain areas before entry permits were required in January of 1974 would result in detrimental economic and biological ramifications. While we agree with these assumptions, it is our view that the means for stopping the gear rush and its consequent harmful effects was accomplished by a provision already in the Act. The legislature had previously inserted the provision that hardship would be determined as of January 1, 1973. Certainly few fishermen would be inclined to invest unnecessarily in gear if they were aware of the fact that it would not be considered by the Commission when entry permits were ultimately issued on the basis of hardship. This provision would clearly halt the gear rush that was taking place, thus obviating any potential harm to the fishing industry before entry permits were required on January 1, 1974. In view of the fact that a provision inserted prior to the one in question prevented the gear rush, we do not think that the legislature would add another provision to accomplish the same purpose. Indeed, to do so would be to disregard the rule of statutory construction that each section of a statute is presumed to serve some useful purpose. When the Act is viewed as a whole, it becomes apparent that the contested provision was inserted because it was assumed that those persons who obtained gear licenses after January 1, 1973, would be unable to demonstrate the requisite hardship for an entry permit. Hence, for the sake of administrative convenience, it was decided that they need not even submit applications to the Commission. In essence, the purpose of the provision was to segregate hardship and non-hardship cases at the application phase of the permit issuance process. In his dissent, Justice Connor takes the position that the purpose of AS 16.43.260 (a) was to alter the basic criteria by which initial free limited entry permits were to be allocated. In his view, the legislature intended these permits to go only to prior gear license holders who could demonstrate the requisite degree of hardship. We find the interpretation unpersuasive. The legislative history rather clearly demonstrates that from the outset the framers of this legislation intended "hardship" to be the determinative factor. In the bill originally submitted by the Governor there was no restriction on the nature or number of applications which the Commission would entertain. The challenged section, AS 16.43.260(a), was inserted at a late stage in the legislative process, and nothing in the committee records marshalled by the parties in the case at bar suggests an awareness of intent that AS 16.43.260(a), as revised, would alter the statute's central allocation criteria. The legislative history cited by our dissenting colleague does not contradict this interpretation but in fact confirms it. As pointed out in footnote 4 of the dissent, the original draftsmen intended that past participation in the fishery would be one of the criteria for determining hardship. In other words, some preference would be given to "[t]hose people who have fished the most." In explaining this criteria, the draftsmen said: The commission will also consider the extent of a person's past participation in the fishery. . A person who fished for 10 years would get a higher priority consideration than a person who fished four weekends a year for 10 years. Past participation as a commercial fisherman in any capacity will be considered, not just past participation as a licensed gear operator, The draftsmen also made clear in the very first version of the Act that the purpose of this legislation was to regulate entry into the commercial fisheries "without unjust discrimination." The report of the Governor's Study Group evidences their understanding that license ownership had no real bearing on any of the substantive criteria by which entry permits were to be allocated — economic dependency, past participation, and present intention to participate. Having proposed legislation which sought to allocate entry permits in accordance with the realities of the fishing profession — i. e., according to degree of individual hardship — they doubtless would have regarded allocation based in part on license ownership precisely as "unjust discrimination." Inasmuch as the policy against discrimination was retained throughout the passage of the Act, it seems incongruous that the legislature would have decided to revise the fundamental allocation criteria in the legislation without debate or discussion, making that intention explicit. For these reasons we are of the view that AS 16.43.260(a) was not intended to modify the allocation policy of the legislation, but rather was adopted to further that policy by simplifying the ranking process. Thus the question presented to this court is: does holding a gear license before January 1, 1973, bear a fair and substantial relation to the purpose of the legislation, which is the segregation of hardship and non-hardship cases? In our opinion, it does not. AS 16.43.260(a) precludes fishermen from applying for an entry permit unless they were gear license holders before January 1, 1973. As a result, many fishermen are automatically excluded from receiving entry permits, even though they might be able to demonstrate significant hardship by exclusion due to economic dependence upon the fishery. On the other hand, there is no requirement that persons applying for permits demonstrate that they were active fishermen dependent upon the fisheries, on or near the cut-off date. Hence, many people are allowed to apply for permits although they have long since sold their vessel and gear, retired from commercial fishing, and-have no intention of fishing in the future. Because persons such as appellants are automatically excluded from the class eligible to apply for permits, in spite of active participation and economic dependence upon the fishery, the January 1, 1973, classification is under-inclusive with respect to persons allowed to apply for permits. Because persons who have long since retired and have no economic dependence upon the fishery as of the cut-off date are allowed to apply for entry permits, the classification is overbroad with respect to those allowed to apply. In essence, the January 1, 1973, cut-off date created an irrebuttable presumption that no one acquiring a license after that time could suffer the requisite hardship necessary for an entry permit. Yet a number of people in that class would be able to demonstrate substantial indicia of hardship as a result of their exclusion from commercial fishing. Appellants, for example, show both previous participation and objective manifestations of future intent to participate in the industry. Procedure by presumption is always easier than' individualized determination. But when, as here, the procedure forecloses the determinative issue of hardship, it needlessly risks running roughshod over the important interests of the fisherman whose livelihood is at stake. This must not be allowed to happen; indeed, the equal protection clause was designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that is often characterized in the most praiseworthy legislation. We find that AS 16.43.260(a) violates appellants' equal protection rights guaranteed by the state and federal constitutions. Therefore, the decision of the superior court is reversed, and this case is remanded with instructions to enter a judgment for appellants. BOOCHEVER, C. J., not participating. . See Governor's Study Group on Limited Entry, A Limited Entry Program for Alaska's Fisheries, 270-71 (1973). . Art. VIII, § 15 of the Alaska State Constitution provides: No exclusive right or special privilege of fishery shall be created or authorized in the natural waters of the State. This section does not restrict the power of the State to limit entry into any fishery for purposes of resource conservation, to prevent economic distress among fishermen and those dependent upon them, for a livelihood and to promote the efficient development of aquaculture in the State. . AS 16.43.170. . H.B. 126, 8th Leg., 1st Sess. (1973). . Section 16.43.260 was amended in 1974 and now provides: . The commission shall accept applications for entry permits only from applicants who have harvested fishery resources commercially while participating in the fishery as holders of gear licenses issued under AS 16.06.536-16.06.670 before the qualification date established in (d) or (e) of this section. . 516 P.2d 142, 145 n. 4 (Alaska 1973). . 522 P.2d 1125, 1127 n. 12 (Alaska 1974). . 532 P.2d 700, 706-07 n. 10 (Alaska 1975). . 537 P.2d 494 (Alaska 1975). . Id. at 498. . 516 P.2d 142 (Alaska 1973). . F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989, 990-91 (1920); Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225, 229 (1971). . 516 P.2d 142, 145 (Alaska 1973). . Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for Newer, Equal Protection, 86 Harv.L.Kev. 1, 20 (1972). . See State v. City of Anchorage, 513 P.2d 1104, 1110 (Alaska 1973); State v. American Can Co., 362 P.2d 291, 296 (Alaska 1961). . AS 16.43.140. . AS 16.43.250(a). . By April 20, 1973, applications for gear licenses for trolling were up 148%, for drift gillnet 57%, and for purse seine 42%, over applications for the same period in 1972. . AS 16.43.260(d). . See Sands, Sutherland Statutory Construction, Vol. 2A, § 4606, p. 63 (4th Ed.1973). . Id. at 1. . Id. . Id. at 1. . Id. at 7 (emphasis added). . Id. at 295. . U. S. Department of Agriculture v. Murry, 413 U.S. 508, 512-14, 93 S.Ct. 2832, 2835, 37 L.Ed.2d 767, 772-73 (1973); Vlandis v. Kline, 412 U.S. 441, 452, 93 S.Ct. 2230, 2236-37, 37 L.Ed.2d 63, 71 (1973); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 651, 94 S.Ct. 791, 801, 39 L.Ed.2d 52, 66 (1974); Stanley v. Illinois, 405 U.S. 645, 656, 92 S.Ct. 1208, 1215, 31 L.Ed.2d 551, 561 (1972). . Stanley v. Illinois, 405 U.S. 645, 656, 92 S.Ct. 1208, 1215, 31 L.Ed.2d 551, 562 (1972). . We are not, however, declaring that the entire Act violates the Federal and Alaska equal protection clauses.

11804014

Charles D. ANDREWS, Jr., Appellant, v. STATE of Alaska, Appellee

Andrews v. State

1998-11-13

No. A-6874

1016

1021

967 P.2d 1016

967

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:53:33.876399+00:00

CAP

Before COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

Charles D. ANDREWS, Jr., Appellant, v. STATE of Alaska, Appellee.

Charles D. ANDREWS, Jr., Appellant, v. STATE of Alaska, Appellee. No. A-6874. Court of Appeals of Alaska. Nov. 13, 1998. David R. Reineke, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant. John J. Novak, Assistant District Attorney, Susan A. Parkes, District Attorney, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

2661

16535

OPINION MANNHEIMER, Judge. Charles D. Andrews, Jr., committed two robberies on September 1, 1997. In both robberies, Andrews represented that he was armed with a firearm; thus, he could have been prosecuted for first-degree robbery. However, Andrews was in fact unarmed, and in both instances he took very little — a pair of scissors in the first robbery, a can of soda in the second. The State agreed to reduce the charges to second-degree robbery. Andrews pleaded no contest to these reduced charges. For these two crimes, Andrews was sentenced to a composite term of 14 years' imprisonment. He now appeals this sentence. Second-degree robbery is a class B felony with a maximum term of 10 years' imprisonment. For purposes of presumptive sentencing, Andrews was a third felony offender, and he therefore faced a presumptive term of 6 years on each robbery count. Based on four aggravating factors (discussed in more detail below), Superior Court Judge Larry D. Card enhanced Andrews's presumptive term from 6 years to 7 years on each count. He then imposed these two sentences consecutively — thus yielding a composite term of 14 years to serve. On appeal, Andrews asserts that Judge Card committed error when he found three of the four aggravating factors. Andrews also asserts that his composite term of 14 years is excessive. As explained in this opinion, we reverse Judge Card's finding with regard to aggravator (c)(15) — his finding that Andrews had three prior felony convictions for presumptive sentencing purposes. And, because we can not be sure whether Judge Card's sentencing decision would be the same in the absence of this aggravating factor, we remand Andrews's case to the superior court for resentencing. Andrews was 30 years old at the time of sentencing. He had been in either juvenile or adult custody for most of the preceding 15 years. In December 1981, Andrews murdered his adoptive father and stepmother. He was adjudged a delinquent minor and was committed to the custody of the Department of Health and Social Services. Andrews turned twenty in October 1987, and so he was released from juvenile custody. Less than four months later, he committed first-degree burglary and second-degree theft; Andrews and a companion broke into a residence and stole property valued at approximately $7000. Andrews was convicted of these crimes and was sentenced to 6 years' imprisonment with 2 years suspended (4 years to serve). He was released to concurrent probation and parole supervision on March 4,1991. Andrews's parole release lasted only three months. During these three months, Andrews engaged in a series of short employments (some lasting only days). He was reluctant to engage in court-ordered treatment. He also violated the conditions of his probation and parole by drinking and visiting bars. On June 5, 1991, Andrews's probation officer contacted the Kenai police and told them to arrest Andrews if they found him in a bar. Three days later — in the early morning hours of June 9th — the police found Andrews at a bar. They arrested him and took him to Wildwood Correctional Center. During the booking process, when Andrews's property was inventoried, police found two cheeks. These checks had been stolen during the burglary of a local church two weeks before. It turned out that Andrews had broken into the church twice — once in mid-May and then again on the night of June lst-2nd. During these burglaries, Andrews took several checks on the pastor's account, as well as two checks written by third parties and made payable to the pastor. Andrews was charged with two counts of second-degree burglary for the two separate break-ins. He ultimately pleaded no contest to one count in exchange for dismissal of the other. Andrews was sentenced to 42 months' imprisonment with 12 months suspended (2½ years to serve). He was released to concurrent probation and parole on March 14, 1994. Again, Andrews's release was short-lived. In July, his probation officer filed a parole violation report which alleged that Andrews had submitted urine samples that tested positive for cocaine and had failed to report to his probation officer as ordered. Andrews's parole was formally revoked on January 4, 1995. Andrews was again released on supervision on September 27, 1995. He reported to his probation officer twice in October, but then in November he failed to keep three scheduled appointments for urinalysis. Andrews's final contact with his probation officer occurred on November 16th. After that, according to the pre-sentence report, "Mr. Andrews dropped out of sight". At the end of February 1996, Andrews's probation officer filed a petition to revoke his probation. The superior court revoked Andrews's probation and, on May 24, 1996, the court ordered him to serve all of his remaining time (including the previously suspended time). Andrews received his final discharge from custody on January 13, 1997. Eight and a half months later, on September 1st, Andrews committed the two robberies in the present case. Andrews's argument on appeal consists of two parts: he attacks the superior court's findings on three of the four aggravating factors, and he also contends that his com posite sentence of 14 years' imprisonment is excessive. Judge Card found that the State had proved four of the aggravating factors listed in AS 12.55.155(c). Andrews conceded one of these factors: (c)(19) — that "[his] prior criminal history includes an adjudication as a delinquent for conduct" — the murder of his parents — "that would have been a felony if committed by an adult". However, Andrews contests the other three aggravators: (c)(8), (c)(10), and (c)(20). Aggravator (c)(8) is that "the defendant's prior criminal history includes conduct involving aggravated or repeated instances of assaultive behavior". To prove this aggravator, the State relied on the fact that Andrews had murdered his parents, as well as Andrews's prison record which showed that he had been disciplined for fighting. On appeal, Andrews contends that aggra-vator (c)(8) can not be premised on criminal conduct that the defendant committed as a juvenile. Andrews bases his contention on the fact that aggravator (c)(8) speaks of a defendant's "criminal history". Since unlawful acts committed by a juvenile are not, technically speaking, "crimes", Andrews concludes that a person's "criminal history" does not include adjudications for delinquency. Andrews further argues that "criminal history" does not include criminal acts unless those acts resulted in a conviction. To answer Andrews's contentions, we must analyze what the legislature meant by the term "criminal history". It is clear that the legislature intended a broader meaning than the one Andrews suggests. As noted two paragraphs ago, Andrews conceded ag-gravator (e)(19). This aggravator is proved when "the defendant's prior criminal history includes an adjudication as a delinquent for conduct that would have been a felony if committed by an adult". (Emphasis added.) The wording of aggravator (c)(19) makes it clear that the legislature intended the term "criminal history" to include acts committed by a juvenile. As to Andrews's argument that "criminal history" does not include criminal acts unless those acts resulted in criminal convictions, we have repeatedly held to the contrary. Finally, Andrews attacks the merits of the State's proof. He argues that, even though he was disciplined for fighting in prison, the State failed to show that Andrews had instigated these fights by acts of assault. We need not decide whether these prison incidents constituted acts of assault. Aggravator (c)(8) is proved by evidence that the defendant engaged in either "aggravated" or "repeated" instances of assaultive behavior. Because the ordinary meaning of "repeated" is "more than once" or "on more than one occasion", the legislature must have intended aggravator (c)(8) to encompass cases where the defendant previously engaged in even a single prior instance of "aggravated" assault. It is undisputed that Andrews had engaged in a prior instance of aggravated assaultive conduct — the murder of his parents. Therefore, regardless of whether Andrews engaged in assaultive conduct in prison, the aggravator was proved. We now turn to Andrews's argument concerning aggravator (e)(10) — the finding that Andrews's conduct was among the most serious included within the definition of the offense. To prove this aggravator, the State relied on the fact that, even though Andrews had entered pleas to second-degree robbery, he had actually committed first-degree robbery (because he represented to the victims that he was armed with a firearm). In Ben-boe v. State , we said that a defendant's factual guilt of a higher degree of crime could justify a sentencing court in finding aggravator (c)(10). Andrews argues, however, that his factual guilt of a higher degree of crime does not necessarily determine the issue. Rather, he contends, the fact that his conduct amounted to a higher degree of crime must be considered along with all the other aspects of his conduct to determine whether his conduct was among the most serious. Specifically, Andrews points out that the two robberies were of short duration and that essentially nothing of value was taken (only a pair of scissors and a can of soda). Moreover, Andrews carried no weapon, his victims were not harmed, and Andrews was apprehended a little later without incident. He argues that, even though he may have committed first-degree robbery because he led his victims to believe that he was armed, this fact is of slight significance when judged against the other mitigating aspects of the situation, and thus the superior court should not have found aggravator (c)(10). Whatever the merits of this argument, it was not preserved in the superior court. At sentencing, Andrews's attorney told Judge Card that he conceded the existence of aggravator (c)(10); he simply wanted to urge the court not to weigh this factor heavily. In particular, Andrews's attorney said: I realize that the case law, Benboe especially, says that when a case could have been charged as a more serious class of felony, [then] technically [the] aggravator [is] established. And I really don't dispute that. Perhaps my argument goes more to the weight that the court should give this aggravator.... I think, in a factual situation like this is, you can find "most serious" and "least serious" [as well]. You can find "most serious" because of the technicality that [Andrews] could have been charged with the greater offense. I think you could also find "least serious", based on the totality of the circumstances. We therefore find that Andrews's attack on aggravator (c)(10) is not preserved for appeal. The final aggravating factor at issue in this appeal is aggravator (e)(15) — the finding that Andrews had three prior felony convictions. As described above, Andrews was convicted of both burglary and theft in 1988, and he was convicted of burglary in 1991. Thus, as a factual matter, Andrews had three prior felony convictions. But under AS 12.55.145(a)(1)(C), two or more felony convictions arising out of a single, continuous criminal episode are deemed a single conviction for presumptive sentencing purposes if (1) there was no substantial change in the nature of the criminal objective and (2) the defendant received concurrent sentences for these offenses. Andrews received concurrent sentences for his 1988 burglary and theft. He argues, moreover, that when a defendant commits burglary with intent to steal and then commits a theft inside the building, there is no substantial change in the nature of the defendant's criminal objective. For these reasons, Andrews contends that the superior court should have treated his 1988 convictions for burglary and theft as a single felony conviction. Andrews's argument is supported by the legislative commentary to AS 12.55.145(a)(1)(C) — which, in the original version of the statute, was designated subsection (a)(3). Subsection (a)(3) provides that two or more convictions arising out of a "single, continuous criminal episode" are to be considered a single conviction unless there was a "substantial change in the nature of the criminal episode." The phrase "single, continuous episode" is intended to limit the applicability of this provision to a single criminal event out of which a number of offenses could be charged. [Take,] [f|or example, the breaking and entering of a building with the intent to commit theft, which can be charged as burglary, and the taking of property in the building[,] which can be charged as theft. In such an instance, convictions for both burglary and theft would be considered a single conviction under this section. . 1978 Senate Journal, Vol. 2, Supp. No. 47 (June 12), p. 157 (emphasis added). In reply, the State relies on our decisions in Amarok v. State and Reynolds v. State , where we held that when a defendant commits burglary and theft in a single criminal episode, the offenses are legally separate and do not merge. That is, the defendant is to be convicted of (and sentenced for) each offense. The State's argument does not answer Andrews's contention, for it is apparent that Amarok and Reynolds deal with a different issue. Amarok and Reynolds stand for the proposition that Andrews was validly convicted of both burglary and theft in 1988. But the question in the present appeal is whether those two convictions should be deemed a single prior conviction for purposes of Andrews's sentencing in the present case. AS 12.55.145(a)(1)(C) is not inconsistent with Amarok and Reynolds. In fact, the statute is premised on the vitality of those two decisions. Amarok and Reynolds establish the rule that a person who commits burglary and theft during a single criminal episode is guilty of two felonies. Section 145(a)(1)(C) exists only because of this rule; by its terms, the statute comes into play only when a defendant has been separately convicted for two or more felonies arising out of the same criminal episode. As the commentary de-' dares, the legislature recognized that a defendant previously convicted of breaking into a building and then stealing property from the building would have two prior felony convictions; the legislature enacted section 145(a)(1)(C) to mitigate the effect of presumptive sentencing on such a defendant. We therefore conclude that the superior court committed legal error when it found that Andrews had three prior felonies for purposes of presumptive sentencing. The remaining question is whether this error requires us to remand Andrews's case to the superior court for resentencing. It might be argued that, given the other three aggravating factors in this case, the absence of factor (e)(15) could not reasonably be expected to alter Judge Card's sentencing decision. However, Andrews received a composite term of 14 years to serve — quite lengthy for a defendant convicted of class B felonies. We also note that, at least in some respects, Andrews's present offenses are arguably mitigated instances of robbery. We express no opinion on Andrews's claim that his total sentence is excessive. Nevertheless, we conclude that we must remand Andrews's case for resentencing. The sentencing decision of the superior court is VACATED, and this case is remanded to the superior court for resentencing. . AS 11.41.500(a)(1). . AS 11.41.510(a)(1) and (2). . AS 11.41.510(b); AS 12.55.125(d). . AS 12.55.125(d)(2). . See AS 47.12.120(b)(1) and AS 47.12.160(c). . See Russell v. State, 934 P.2d 1335, 1347 (Alaska App.1997), and Fagan v. State, 779 P.2d 1258, 1260 & n. 3 (Alaska App.1989) (holding that a defendant's "criminal history", for purposes of aggravator (c)(8), includes incidents that were not prosecuted or that otherwise did not result in convictions). . See Konrad v. State, 763 P.2d 1369, 1379-1380 (Alaska App.1988). . 698 P.2d 1230, 1232 (Alaska App.1985). . 789 P.2d 377, 380 (Alaska App.1990). . 706 P.2d 708, 711 (Alaska App.1985).

10465579

Mark Spencer SMOTHERS, Appellant, v. STATE of Alaska, Appellee

Smothers v. State

1978-06-09

No. 3657

1062

1065

579 P.2d 1062

579

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:54:24.577259+00:00

CAP

Before BOOCHEVER, C. J., and RABI-NO WITZ, CONNOR, BURKE and MATTHEWS, JJ.

Mark Spencer SMOTHERS, Appellant, v. STATE of Alaska, Appellee.

Mark Spencer SMOTHERS, Appellant, v. STATE of Alaska, Appellee. No. 3657. Supreme Court of Alaska. June 9, 1978. Joseph A. Kalamarides, Settles, Kalamar-ides & Van Abel, Anchorage, for appellant. James V. Gould, Asst. Dist. Atty., Joseph D. Balfe, Dist. Atty., Anchorage and Avrum M. Gross, Atty. Gen., Juneau, for appellee.

1545

9616

OPINION Before BOOCHEVER, C. J., and RABI-NO WITZ, CONNOR, BURKE and MATTHEWS, JJ. BOOCHEVER, Chief Justice. This is a sentence appeal. Mark Spencer Smothers was convicted after trial of burglary in a dwelling, in violation of AS 11.-20.080, and was sentenced to twelve years in prison. Smothers contends that his sentence is excessive and specifically alleges that the superior court erred in rejecting a "viable alternative" to incarceration: commitment to a therapeutic community. We affirm the sentence. Smothers and two companions, Samuel A. Hague and John Heckart, were charged with breaking and entering an occupied residence on February 11, 1977 with the intent to commit larceny therein. They tied up the three female occupants of the residence and proceeded to ransack the house. Hague struck two of the occupants with a gun. The burglars were at the residence for approximately two hours during which time one of the occupants untied her hands and called the State Troopers. Smothers, who was twenty years old and on probation at the time of the present offense, has an extensive prior record. His pre-sentence report discloses the following: Juvenile: June, 1971 Joyriding August 31,1971 Burglary in a Dwelling September, 1971 Joyriding September 27, 1972 Illegal Possession of Dangerous Drugs November 16,1972 Joyriding July 13, 1973 Burglary October 30,1973 Probation Violation Traffic: June 30,1972 No License September 20,1973 One-Way Violation Criminal: August 16,1975 Disorderly Conduct October 31,1975 Attempted Burglary At his sentencing hearing, he argued that commitment to Future House, a therapeutic community in Anchorage, should be ordered in lieu of an institutional sentence. Robert Keith, a counselor at Future House, testified about past successes with clients in the program and his belief that Smothers would have the opportunity to "make it" through Future House. Dr. J. Ray Langdon, who conducted a psychiatric evaluation of Smothers, diagnosed an antisocial personality, characterized by a lack of interest in society or the requirements of law. He stated that Smothers is not amenable to treatment. The probation officer's written report concluded by recommending that "defendant be given a significant period of time to serve on both offenses, probation revocation and present offense." In light of the foregoing and our independent review of the record, we cannot say that the superior court was clearly mistaken in declining to order treatment in a therapeutic community in lieu of incarceration. We believe that the superior court carefully considered the possibility of rehabilitation, and we will not disturb its judgment. We note that the trial court expressed some uncertainty as to the meaning of the fourth Chaney criterion, the reaffirmation of societal norms, questioning whether it actually was a disguise for retribution. The use of-retribution as a goal of sentencing is inconsistent with the mandate of art. I, § 12 of the Alaska Constitution that "Penal administration shall be based on the principle of reformation and upon the need for protecting the public," and was not adopted as one of the four goals in State v. Chaney, 477 P.2d at 444. The support of community expectations that existing norms will be enforced and delicts will be punished is separate from retribution. The judge's balancing of the factors of rehabilitation, isolation and deterrence must also include an awareness that in sentencing, he is reflecting community beliefs that certain norms are viable and will be upheld by the courts. Although a sentence of twelve years is a severe penalty, we do not believe that the superior court was clearly mistaken in imposing this sentence. Burglary in a dwelling is a serious offense for which the legislature has authorized severe penalties. Where the dwelling is occupied at the time of the burglary, imprisonment may total twenty years. In view of Smothers' record, we find adequate basis for the superior court's characterization of Smothers as among the class of worst offenders, and the particular offense must be considered as among the worst type of burglaries. The victims were tied, two were struck and they were placed in a situation that must have caused great fear. In Price v. State, 565 P.2d 858, 862 (Alaska 1977), we approved two consecutive ten-year sentences for two separate counts of burglary in an occupied dwelling. Price was thirty-three years old and had an extensive record, but the burglaries for which Price was convicted did not involve elements of fear and violence like that of Smothers. In light of his prior record and the fact that the present offense occurred while he was on probation, we do not find a sentence of twelve years to be served concurrently with the three and a half years imposed for revocation of probation to be excessive. AFFIRMED. . AS 11.20.080 provides: Burglary in dwelling house. A person who breaks and enters a dwelling house with intent to commit a crime in it, or having entered with that intent, breaks a dwelling house or is armed with a dangerous weapon in it, or assaults a person lawfully in it is guilty of burglary, and upon conviction is punishable by imprisonment in the penitentiary for not less than one year nor more than 10 years. However, if the burglary is committed at nighttime, it is punishable by imprisonment for not less than one year nor more than 15 years. If a human being is within the dwelling at the time of the burglary during the nighttime or daytime, it is punishable by imprisonment for not less than one year nor more than 20 years. . Hague testified against Heckart and Smothers and received a sentence of five years with four years suspended. Heckart, who had "practically" no prior record, was sentenced to seven years with five years suspended. We do not have before us an appeal with reference to the sentences of Hague and Heckart. Hec-kart's sentence was apparently based on his lack of a prior significant record. Since it is not before us, it is inappropriate for us to comment on the leniency of the sentence imposed on Hague, who evidently planned the crime and was the one who struck the victims. We have thus evaluated Smothers' sentence on its own merits. . Testimony was also presented by Brian P. Knoedler, a client of Future House, and by Sylvia Smothers, the mother of Mark Spencer Smothers. Probation Officer Loy Ray Bolt stated that Future House may be of "help" to Smothers, but he recommended that time be served as well. . McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974); State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970). . See Parks v. State, 571 P.2d 1003, 1005 (Alaska 1977). . In State v. Chaney, 477 P.2d at 444, we enumerated the factors to be considered in sentencing as follows: [R]ehabilitation of the offender into a noncriminal member of society, isolation of the offender from society to prevent criminal conduct during the period of confinement, deterrence of the offender himself after his release from confinement or other penological treatment, as well as deterrence of other members of the community who might possess tendencies toward criminal conduct similar to that of the offender, and community condemnation of the individual offender, or in other words, reaffirmation of societal norms for the purpose of maintaining respect for the norms themselves, (footnote omitted) Those goals were derived from "Appellate Review of Primary Sentencing Decisions: A Connecticut Case Study," 69 Yale L.J. 1453, 1455 (1960). The record discloses that the superior court considered all of these factors at length. .Certain conduct may not be tolerated by those who live in modem society. Acts of violence to persons and transgressions against property are prohibited by criminal laws. Even though in an individual case, rehabilitation of the wrongdoer would require no punishment other than his personal remorse and nothing would be required to deter him or others from like conduct, preserving societal norms may necessitate an appropriate sentence. See generally, Bayley, "Good Intentions Gone Awry — A Proposal for Fundamental Change in Criminal Sentencing," 51 Wash.L.Rev. 529 (1976). .We have stated that, except for cases involving "particularly serious offenses, dangerous offenders and professional criminals," maximum prison terms ought not to exceed five years. Donlun v. State, 527 P.2d 472, 475 (Alaska 1974). See also, Galaktionoff v. State, 486 P.2d 919, 924 (Alaska 1971). The American Bar Association Standards Relating to Sentencing Alternatives and Procedures, Standard 2.1 states in part: Except for a very few particularly serious offenses, and except under the circumstances set forth in section 2.5(b) (special term for certain types of offenders), the maximum authorized prison term ought to be five years and only rarely ten. In considering Smothers' age, we would be inclined to disapprove any sentence in excess of ten years for the offense were it not for the fact that the sentence was imposed to run concurrently with the three and a half year revocation of probation. . See Note 4, supra. . See Note 1, supra. . We disapproved of Price's third consecutive ten-year sentence for attempting to procure a female for prostitution. Price v. State, 565 P.2d at 862.

10455991

J. R. LEWIS, d/b/a Four Seasons Mobiland, Appellant, v. ANCHORAGE ASPHALT PAVING CO., an Alaska Corporation, Appellee

Lewis v. Anchorage Asphalt Paving Co.

1978-06-02

No. 3221

532

535

579 P.2d 532

579

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:54:24.577259+00:00

CAP

Before BOOCHEVER, C. J., and RABIN-OWITZ, CONNOR, BURKE and MATTHEWS, JJ.

J. R. LEWIS, d/b/a Four Seasons Mobiland, Appellant, v. ANCHORAGE ASPHALT PAVING CO., an Alaska Corporation, Appellee.

J. R. LEWIS, d/b/a Four Seasons Mobiland, Appellant, v. ANCHORAGE ASPHALT PAVING CO., an Alaska Corporation, Appellee. No. 3221. Supreme Court of Alaska. June 2, 1978. Raymond A. Nesbett, Anchorage, for appellant. Karl L. Walter, Jr., Groh, Benkert & Walter, Anchorage, for appellee.

1595

9608

OPINION Before BOOCHEVER, C. J., and RABIN-OWITZ, CONNOR, BURKE and MATTHEWS, JJ. BURKE, Justice. Following our decision in Lewis v. Anchorage Asphalt Paving Co., 535 P.2d 1188 (Alaska 1975), this case was remanded for further findings of fact. Those findings are now the subject of another appeal. The pertinent facts can be summarized as follows: In July of 1969 J. R. Lewis contracted with Anchorage Asphalt Paving Co. to shape, compact, and pave seven roads for a price of $57,000, in a trailer court owned and designed by Lewis. Prior to bidding on the job Julian Longoria, of Anchorage Asphalt inspected the premises. Joe Longoria, Vice-President of Anchorage Asphalt, toured the area but did not leave his automobile to inspect the soil. He observed what he thought "looked like gravel on the road." According to Lewis' undisputed testimony at the remand hearing, peat and other subsurface materials were clearly visible during the inspection because water and sewer line installations were underway. Three of the seven roads had been surfaced with "cold mix" approximately one year before the contract was made between Lewis and Anchorage Asphalt. This surface proved to be inadequate and Lewis informed Anchorage Asphalt that he was relying on their expertise to do a complete job which would last the normal, useful life (ten to fifteen years). The other four roads consisted mostly of a peat base covered with glacial till. Glacial till, which is the residue deposited by a retreating glacier, resembles gravel and in its natural state is a stable material. However, when it is removed and distributed, as was the glacial till in the instant case, it must be compacted to a high degree to make it sufficiently stable to maintain weight bearing loads. When placed over a peat base, glacial till becomes even less stable because of the moisture in the peat. Lewis had surfaced the four newer roads with glacial till from a hill on his property and he advised Anchorage Asphalt that if extra material was needed for grading the roads the same glacial till material could be used. In July and August of 1969, without investigating the nature of the soils in the roadways, Anchorage Asphalt scraped, graded, compacted, and paved the roads. With the onset of cold weather the pavement began to deteriorate. Portions of the roads displayed "alligatoring" and an uneven settling or roller-coaster effect. Other portions of the street exhibit pot holes and portions of the surface broke up. The deterioration was caused by the uneven settling and heaving of the subsurface glacial till as it froze and thawed in concert with the moisture seepage from the peat upon which it had been placed. This sort of deterioration can be avoided if appropriate steps are taken to compact the subsurface prior to paving. In the previous appeal we held that "an essential element of performing any contract in a workmanlike manner according to acceptable standards" was the duty to warn the owner of defects in the project which would be likely to cause the work to fail if the contractor knew or reasonably should have known of those defects. We remanded the case to the superior court to determine whether Anchorage Asphalt was chargeable with such knowledge. On remand additional testimony was taken on that issue. After reviewing the evidence from the trial and the remand hearing, and taking judicial notice of the presence of large areas of peat, gravel, mud, clay and glacial till in the vicinity in question, the trial judge found that Anchorage Asphalt could not be charged with "knowledge of the condition of the subsurface soil, and further knowledge that paving placed on such surface would fail." Judgment was entered for Anchorage Asphalt and Lewis has appealed from that judgment contending that the finding is in error. The standard of review for a challenge to the trial court's findings of fact is set forth in Rule 52(a), Alaska R.Civ.P., which provides in relevant part: Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. A finding is clearly erroneous when it leaves the court with the "definite and firm conviction on the entire record that a mistake has been made, although there may be evidence to support the finding." Frontier Saloon, Inc. v. Short, 557 P.2d 779, 781 (Alaska 1976). Accord, Chugach Electric Ass'n v. Northern Corp., 562 P.2d 1053, 1060 n.22 (Alaska 1977). We conclude that the trial judge's decision that he could not find as a matter of law or fact, that Anchorage Asphalt "can be charged, by a preponderance of the evidence or evidence as a result of reasonable inference, with knowledge of the condition of the subsurface soil, and further knowledge that paving placed on such surface would fail," was clearly erroneous. The primary reason for our decision can be found in the trial judge's decision itself. In the paragraph immediately preceding the conclusion quoted above, the trial judge stated that judicial knowledge and notice of the "large peat areas was taken as was judicial knowledge and notice of large areas of gravel, mud, clay and glacial till in the same area." Thus, pursuant to Rule 43(a)(2)[c], Alaska R.Civ.P., the trial judge took judicial notice of the soil conditions in the area. Anchorage Asphalt has raised no objection to the trial court taking judicial notice that those conditions existed. We find it entirely incom to conclude that certain facts are so ⅛ , .rally known that judicial notice may be taken of them while at the same time deciding that a company such as Anchorage Asphalt, whose work routinely involves those very facts, is not chargeable with at least the same degree of knowledge. Such being the case, we believe Anchorage Asphalt was required to inquire about, if not test, the soil conditions. As noted in our earlier decision, it is undisputed that placing paving directly on frost-susceptible material was not in accordance with workmanlike standards since the result would be the precise type of failure of the paved surface which occurred here. In addition we are persuaded that when Julian Longoria visited the site while the water and sewer lines were being installed he must have viewed the exposed peat. Lewis' testimony at the hearing on remand that peat was exposed was not controverted. The sole reason for the remand of this case was for a determination of what Anchorage Asphalt knew or reasonably should have known about the subsurface conditions because the testimony of Julian and Joe Longoria had been ambiguous on that point. However, neither of the two testified at the hearing on remand. Thus, Lewis' testimony as to the visibility of the peat was left undisputed. Anchorage Asphalt seems to contend that because neither Joe nor Julian Longo-ria were soils experts, they should not be expected to note soil conditions, even those which are conspicuous. Anchorage Asphalt's expertise as a paving company must include expertise in soils to the extent that soil conditions affect the company's end product, the paved road. Accordingly we are unpersuaded by Anchorage Asphalt's assertion of innocence through ignorance. If Anchorage Asphalt is to hold itself out as a competent paving company, it must assume that its representatives will be chargeable with expertise in the paving business. We conclude that Anchorage Asphalt knew or reasonably should have known of the subsurface conditions and consequently had a duty to warn Lewis of the possibility of the sort of failure which occurred in this case. Having failed to warn Lewis of this possibility, Anchorage Asphalt is liable to Lewis for those damages necessary to put Lewis in as good a position as that in which he would have been had such a warning been given. This case is REVERSED and REMANDED for a determination of damages in accordance with our instructions in the earlier decision in this case. . This phenomenon is described in n.3 of our first opinion. 535 P.2d at 1192. . 535 P.2d at 1199. The contract executed by Lewis and Anchorage Asphalt guaranteed that the work would be "completed in a workmanlike manner according to standard practices." .535 P.2d at 1200. .Rule 43(a)(2)[c] provides: (2) . . . Without request by a party, the court may take judicial notice of: [c] Such facts as are so generally known or of such common notoriety within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute. . 535 P.2d at 1200. . The expertise of Anchorage Asphalt was accepted in our earlier opinion in this case. 535 P.2d at 1197. . Note 31 from our previous decision provided the following direction as to damages: Since we have affirmed the trial court's finding that 'preparation of the subgrade' involved only its 'grading, shaping and compacting', damages should not include the costs of excavation and filling, but only the costs of removing the portions of paving that have failed, shaping and compacting the sub-grade and replacing' that pavement. The amount due and unpaid on the contract will be an offset against those damages, and if the amount due and unpaid exceeds the amount of the damages, Anchorage Asphalt will be entitled to an award for the difference. 535 P.2d at 1200.

10448351

Roy Alton GREEN, Appellant, v. STATE of Alaska, Appellee

Green v. State

1978-05-12

No. 2866

14

20

579 P.2d 14

579

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:54:24.577259+00:00

CAP

Before BOOCHEVER, C. J., and RABI-NOWITZ, CONNOR and BURKE, JJ.

Roy Alton GREEN, Appellant, v. STATE of Alaska, Appellee.

Roy Alton GREEN, Appellant, v. STATE of Alaska, Appellee. No. 2866. Supreme Court of Alaska. May 12, 1978. Paul L. Davis and Edgar Paul Boyko, Edgar Paul Boyko & Associates, P. C., Anchorage, for appellant. David Shimek, Asst. Dist. Atty. and Harry L. Davis, Dist. Atty., Fairbanks and Av-rum M. Gross, Atty. Gen., Juneau, for ap-pellee.

3673

21864

OPINION Before BOOCHEVER, C. J., and RABI-NOWITZ, CONNOR and BURKE, JJ. CONNOR, Justice. Roy Alton Green appeals from a conviction-for careless use of firearms. Green brought an antique shotgun into the Gold Rush Saloon in Fairbanks on May 14, 1975, apparently to place it in a display of antique guns at the saloon. Green testified that he believed the gun was unloaded, but it was in fact loaded. While Green was at the Gold Rush Saloon, a friend told him that Chilkoot Charlie's saloon, next door, needed help in fending off members of a motorcycle gang, and Green went to Chilkoot Charlie's, carrying the shotgun. He testified that he kept the gun pointed at the ground, but several other witnesses testified that he pointed it at persons in the bar. Shortly thereafter he was arrested for assault with a dangerous weapon, the gravamen of the offense being that he pointed the gun at a person inside Chilkoot Charlie's. On May 27, 1975, his preliminary hearing was held in district court in Fairbanks. Because no attorney from the firm retained to represent Green was present, Jonathan H. Link, a Fairbanks attorney, represented Green at the preliminary hearing on ten minutes' notice. Link was not an experienced criminal lawyer. At the completion of the preliminary hearing Green was bound over to the Grand Jury and was subsequently indicted. At the initial trial date, Janet Martinez, one of the witnesses to the events inside Chilkoot Charlie's, did not appear although she had been subpoenaed. The district attorney's office had been aware that she might not be present. Later they made some efforts to locate her. The tape of her preliminary hearing testimony was played for the jury at the trial. The court instructed the jurors on careless use of firearms as a lesser included offense within the charge of assault with a dangerous weapon. The jury found Green guilty of the lesser offense. He was sentenced to one year in prison and fined $1,000, the maximum sentence. Green makes four claims of error: (1) That he had ineffective assistance of counsel at the preliminary hearing; (2) That the state failed to use due diligence to locate witness Martinez; therefore, her preliminary hearing testimony should not have been admitted at trial; (3) That careless use of a firearm is not a lesser offense included within assault with a dangerous weapon; (4) That the trial court should have held that the offense of careless use of a firearm can only be committed with a loaded and operable firearm. I At his preliminary hearing, Green was represented by Jonathan H. Link, an attorney with little experience in criminal law. He was given the case 10 to 15 minutes before the hearing, when Green's retained counsel suddenly found himself unable to appear. He had no opportunity to examine the case file. He testified later that he did not request a continuance of the preliminary hearing because he did not think of it. He thought the hearing might be cancelled by the state. The circumstances of the preliminary hearing are at issue because the testimony of witness Janet Martinez, given at the preliminary hearing, was played for the jury at trial. Mr. Link admitted that he had no knowledge of Ms. Martinez's background, and knew nothing of the relevance of her testimony except what he had heard at the preliminary hearing from the state's two prior witnesses. On direct examination, Martinez, the bartender, described the events in Chilkoot Charlie's on the date in question. She positively identified the defendant and very tentatively identified the gun. Mr. Link's cross-examination took about the same amount of time as the direct examination. He explored the possibility that she might not be certain that the events she remembered took place on the day in question, and probed her experience with and ability to identify guns. These facts were aired at an evidentiary hearing held during the trial, out of the presence of the jury. Mr. Link testified and was examined by counsel for both parties, and the matter was argued to the court. The judge indicated that he had listened to the tape of Mr. Link's cross-examination of witness Martinez at the preliminary hearing. He then applied the "mockery and farce" test of ineffective assistance of counsel, and held that Green had not been the victim of ineffective assistance. Hence he refused to exclude the preliminary hearing testimony of witness Martinez. It is apparent that the trial court employed the wrong measure of counsel's performance, for in Risher v. State, 523 P.2d 421 (Alaska 1974), we abandoned the "mockery and farce" test. In its place we substituted a two-prong test of ineffective assistance: (1) whether counsel's perform- anee, either generally or in some specific instance fell below what would be expected of a lawyer with ordinary training and skill in the criminal law, and (2) whether this ineffective performance must in some way have contributed to the conviction. Both parties recognize on appeal that Link's performance must be judged by the Risher standard. Green stresses that Mr. Link lacked experience in criminal practice, and by his own admission his performance at the preliminary hearing would have been inadequate for a trial. But every lawyer who handles criminal matters has once handled his first criminal matter. Not every lawyer would be guilty of rendering ineffective assistance the first few times he appeared in court. The test is whether his performance was below what would be expected of a lawyer with experience, not whether he in fact had that experience. By hindsight, we know that the cross-examination of Martinez at the preliminary hearing was the only cross-examination she ever was to undergo. At the time of the preliminary hearing, however, nobody knew this — not even those who knew more about this case than Mr. Link. Even the most skilled and prepared attorney would not necessarily be as thorough at the preliminary hearing as he would be at trial. At preliminary hearings, experienced defense attorneys often cross-examine to a limited extent. They may, as Mr. Link did here, merely pin down details of the witness' direct testimony or test the ability of the witness to observe and recall the matters about which the testimony is given. For that matter, experienced attorneys in this position may choose, for tactical reasons, not to cross-examine at all. Given the type of testimony presented by the witness Martinez, we do not know what more could be expected of defense counsel. This is not a situation in which it can be shown that defense counsel, if armed with additional, available information, could have somehow demolished or impaired the direct testimony of the witness. Our conclusion is that the performance of Mr. Link did not fall below that of a lawyer with ordinary skill and training in the criminal law. On this point there was no error. II Green offers a second, entirely separate ground for exclusion of the recorded testimony of Janet Martinez: that the state did not exercise due diligence in seeking her presence at trial. The confrontation clauses of the state and federal constitutions have been interpreted to permit the prosecution to use prior testimony of witnesses who cannot be located only if the state has exercised due diligence in trying to find them. Fresneda, v. State, 483 P.2d 1011 (Alaska 1971); Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). This court's first unavailable-witness opinion, McBride v. State, 368 P.2d 925, 927 (Alaska 1962), cert. denied, 374 U.S. 811, 83 S.Ct. 1702, 10 L.Ed.2d 1035 (1963), held that the question of due diligence was an ordinary question of fact, and that the trial court's decision would be reversed only for manifest abuse of discretion. In Fresneda v. State, supra, however, we modified McBride in light of Barber v. Page, supra, 483 P.2d at 1017. The underlying constitutional basis of the Barber case requires that appellate review on this ques tion be less deferential than was stated in the McBride case. When Martinez was served with a subpoena on July 17,1975, ordering her appearance on the initial trial date of September 8, she told the process server she might be leaving the state before then "under the circumstances." She did not say what the circumstances were. The process server reported this to the district attorney's office. Apparently nothing more was done before. September 8. When Martinez did not appear on September 8, the process server, a judicial services officer of the state troopers, visited her former home and place of employment, and at each place was told that she had moved to California. He found no one who knew her new address. Another officer obtained the same information from a former coworker of Martinez. A bench warrant was issued for Martinez's arrest and this information was placed in federal and state criminal information computers. Shortly before the trial date the troopers checked Hayward and San Francisco, California, where she had previously lived. Hayward police reported no record of her, and San Francisco authorities did not respond. The Fairbanks municipal utilities reported that she was not on their customer list. No check was made at the post office for a forwarding address. After hearing this testimony from three police officers outside the presence of the jury, Judge Blair ruled that the state had made adequate efforts to find Martinez and that the rule of Fresneda v. State, supra, was satisfied. An additional element in the case is that the "circumstances" which led Martinez to decide to leave Alaska may well have been a threat from the defendant that she would be harmed if she testified. She told the grand jury that she had been threatened. Witness Barnett testified at trial that Green had threatened him. The court considered this possibility as a factor in favor of permitting use of the prior testimony. Whether the state used "due diligence" can best be ascertained by comparing its efforts with those in previous cases. In Fresneda v. State, supra, the following was held insufficient (although harmless error): "Although the District Attorney's secretary made a few limited efforts to locate Pieren earlier in the month before the trial, no systematic search was begun until about the 22nd of December, 1969, with trial scheduled for the 29th. At that time, the chief of the Juneau police checked police records there and in Anchorage for any trace of Pieren, and found nothing. No subpoena for Pieren was ever issued. Michael Biggs, court attache, was assigned to look for Pieren on the 27th. After a few hours on the telephone talking to various people, Biggs turned up several persons who said that they believed that Pieren was then in the Army. He made an attempt to verify this through the Adjutant General's office, Department of Military Affairs, but received no answer and apparently did not follow up on his request. On the date of the trial Mrs. Jones, the prosecutor's secretary, was informed by Major Holmeson of the Army National Guard in Anchorage that Pieren had enlisted on May 16, 1969, and had been sent to Ft. Lewis, Washington, for his eight weeks basic training. Major Holmeson had no knowledge of where he had gone from there, but suggested that he might be in Vietnam. Thus, Pieren's actual physical location was never determined prior to trial. The trial court, apparently assuming that the man was probably in Vietnam, ruled that sufficient diligence had been shown and admitted the former testimony." 483 P.2d at 1016-17. In People v. Redston, 139 Cal.App.2d 485, 293 P.2d 880, 885-86 (1956), which we cited with approval in Fresneda, the court held that failure to check the post office and the witness' last known place of employment demonstrated lack of due diligence. Here, the post office was not checked, and the state inquired of the bartender on duty at Chilkoot Charlie's, but never of the owner, manager, or person in charge of the payroll records. People v. Redd, 273 Cal.App. 345, 78 Cal.Rptr. 368, 371 (1969), held that failure to check with the last known employer indicated lack of due diligence. In Fresneda we cited Redston's definition of due diligence as "a thorough, painstaking and systematic attempt to locate the witnesses." 483 P.2d at 1017. We also held that the state must meet a higher standard when it reports that it cannot find the witness, than when it has found him but in a place beyond the court's jurisdiction. Id. Although the police were given indications that Martinez was in California, they never found her, there or anywhere else. In light of Fresneda and the authorities there cited we hold that the failure to inquire of the post office and of Martinez's former employer precludes a finding that due diligence was exercised. Although Fresneda found that such error could be harmless under certain circumstances, we do not believe that this is such a case. Unlike Fresneda, the testimony at issue here was vigorously contradicted. Martinez's testimony goes to the heart of the prosecution's case and, at an evidentiary hearing, the prosecutor characterized it as "absolutely essential." There was other eyewitness testimony, but the prosecutor depicted Martinez "as the only witness whose story is fairly consistent as to what happened." Furthermore, the prosecutor repeatedly referred to the Martinez preliminary hearing testimony in his closing argument to the jury. The use of the recorded testimony of the witness Martinez was prejudicial error. Ill Green next asserts that the court erred in giving a jury instruction that careless use of firearms is a lesser offense included within assault with a dangerous weapon. The state argues that defense counsel agreed to the giving of this instruction and therefore should be precluded by Rule 30(a), Alaska Rules of Criminal Procedure, from objecting to it on appeal. The colloquy on the instruction was as follows: THE COURT: Number 11 presents the lesser included offense. MR. BOYKO: I assume that there was presented to the court authority that, as a matter of law, this is a lesser included offense. (Whispered conversation) THE COURT: Well, there is authority in agreement that it should be here by both counsel. MR. BOYKO: Sir? THE COURT: There was an — there was agreement by both counsel that it should be included. MR. BOYKO: Well . . . MR. GULLUFSEN: I cited the court Burke versus United States or United States versus Burke . . . MR. BOYKO: All right. I was just . MR. GULLUFSEN: . . . which is the Alaska case . MR. BOYKO: . . . inquiring. MR. GULLUFSEN: . . . that discusses . . MR. BOYKO: If there is authority. I don't think counsel could stipulate to an erroneous instruction, if it were erroneous. In our opinion, a clear objection was not made, and the objection has been waived. There was, therefore, no error. IV Green's final point on appeal is that the crime of careless use of firearms requires that the gun be loaded and operable when it is pointed at the victim. He asserts that the trial court should have so instructed the jury, and that the prosecutor should not have argued to the jury that there was no such requirement. The instructions specified that assault with a dangerous weapon required a loaded and operable firearm. Regarding the offense of careless use of firearms, the instructions said nothing one way or the other. The state urges that this point was not preserved for appeal, because the defendant did not request such an instruction, as Criminal Rule 30(a) requires, and did not object when the prosecutor made his argument. Green concedes that an instruction was not requested, but argues that the trial court should have instructed sua sponte because this is an element of the offense, and that the failure to give the instruction constitutes plain error which could be noted for the first time on appeal. We need not rule on whether this question is properly before us. We have reversed the conviction on other grounds. But we will set forth our interpretation of the statute as a guide for retrial. The parties advance various policy arguments on this issue. Green emphasized that this offense, like assault with a dangerous weapon, was enacted to deal with situations in which bodily harm is likely. He urges that the rule of Hobbs v. State, 363 P.2d 357, 358, n. 3 (Alaska 1961), requiring a loaded weapon for assault with a dangerous weapon, should be extended to this offense. The state points out that "assault with a dangerous weapon" contains the word "dangerous," and that while a firearm is dangerous only when it is loaded and operable, it is a firearm all the time. The state also notes that, "I didn't think it was loaded, I just wanted to scare him," are famous last words, and that there ought to be a criminal penalty for the intentional pointing of any firearm, loaded or unloaded, at a human being. The careless use statute prohibits several varieties of conduct other than the one at issue here. All the others beside "points or aims a firearm at or toward a person" require explicitly or implicitly that the firearm be discharged and, therefore, that it be loaded and operable. The statute reads in full as follows: "Sec. 11.15.200. Careless use of firearms. (a) A person who intentionally, and without malice, points or aims a firearm at or toward a person, or discharges a firearm so pointed or aimed at a person, or points and discharges a firearm at or toward a person or object without knowing the identity of the object and maims or injures a human being, is guilty of the careless use of firearms, and upon conviction is punishable by a fine of not more than $1,000, or imprisonment for not more than one year, or by both. If an offense specified in this section was committed by a person licensed to hunt and was committed while he was hunting, upon conviction, the court shall, in addition to the penalty imposed in this section, revoke the person's hunting license. A person whose license has been revoked may not purchase another hunting license of any class for a period of not less than one year nor more than 10 years from the date of revocation as determined by the court. If an offense specified in this section was committed by a person not licensed to hunt and was committed while he was hunting, the court shall, in addition to the penalty imposed in this section, prohibit the person from purchasing any class hunting license for a period of not less than one year nor more than 10 years as determined by the court. (b) If death ensues from the maiming or injuring, the person discharging the firearm may, in the discretion of the prosecuting officer or grand jury, be charged with the crime of manslaughter. (c) This section does not apply to a case where firearms are used in self-defense or in the discharge of official duty, or in case of a justifiable homicide." In our view the statute is broad enough to reach the use of firearms for other than assaultive purposes. Firearms can be instruments of intimidation, even though they are unloaded. The statute was, in our opinion, designed to cover types of conduct which in many instances would not amount to an assault. A loaded and operable firearm is not a necessary element of the offense where what is charged is the pointing or aiming of the firearm at a person. The instruction given in this case was proper. REVERSED and REMANDED. . In the reply brief, Green suggests a remand for a new evidentiary hearing before a judge applying the proper test of ineffective assistance. He assumes that the use of the wrong standard is per se reversible error and urges that this court should not itself apply the correct standard to the evidence taken by the trial court. He cites Steussi v. State, 512 P.2d 589 (Alaska 1973), in which a case tried under the M'Naghten insanity standard was remanded after this court adopted the American Law Institute's test as set forth in the Model Penal Code. We do not find the instant case comparable, and the record is adequate for an appellate determination. . We note that Mr. Link had four years of experience in civil litigation, and had conducted trials. . Regarding the rule that constitutional decisions cannot be insulated from appellate review by deeming indispensable subsidiary questions to be questions of fact, see generally Hicklin v. Orbeck, 565 P.2d 159 at 163 n. 6 (Alaska 1977), prob. juris, noted, 434 U.S. 919, 98 S.Ct. 391, 54 L.Ed.2d 275 (1977), and authorities cited therein. . The trial was stayed pending this court's decision on a petition for review. Trial eventually commenced January 6, 1976. . The warrant officer of the state troopers testified over defense objection that he had a caseload of more than 700 warrants and no one to assist him. The defense insists that this is no excuse. On appeal, the state does not use this fact in an effort to excuse its conduct; it insists that the search made was adequate: . We do not know whether upon retrial an objection will be made to the giving of a lesser included offense instruction. For this reason we have no need to determine whether the giving of such an instruction, over the defendant's objection, would be proper. . There was expert testimony that the gun, an antique shotgun, was possibly inoperable. It was in fact loaded, although Green said he did not believe it was. It is an entirely plausible explanation for the verdict that the jurors believed the gun was not operable. If so, then this issue is a crucial one.

10465637

Bates B. WITT, Appellant, v. Clyde WATKINS, Appellee

Witt v. Watkins

1978-06-09

No. 3287

1065

1071

579 P.2d 1065

579

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:54:24.577259+00:00

CAP

Before BOOCHEVER, Chief Justice, and RABINO WITZ, CONNOR, BURKE and MATTHEWS, Justices.

Bates B. WITT, Appellant, v. Clyde WATKINS, Appellee.

Bates B. WITT, Appellant, v. Clyde WATKINS, Appellee. No. 3287. Supreme Court of Alaska. June 9, 1978. William D. Artus, Anchorage, for appellant. Dale J. Walther, Murphy L. Clark Law Offices, Anchorage, for appellee.

3512

20904

OPINION Before BOOCHEVER, Chief Justice, and RABINO WITZ, CONNOR, BURKE and MATTHEWS, Justices. BOOCHEVER, Chief Justice. Bates B. Witt sued Clyde Watkins for damages arising out of injuries sustained on October 28, 1975 in an automobile collision. Witt was a passenger in an automobile driven by Watkins. As an affirmative defense, Watkins alleged that the suit was barred because Witt had entered into an agreement releasing Watkins from all claims. Based on the release, Watkins' motion for summary judgment was granted. Witt has appealed, claiming that the release is unenforceable because it is the result of a mutual mistake as to the nature of his injuries. The motion for summary judgment is supported by the affidavit and deposition of Mark S. Rauch, who was the Field Claims Representative for State Farm Insurance Company, Watkins' insurer. In opposition, Witt filed an affidavit and the written report of Dr. F. Leland Jones, one of the physicians who treated him. From those documents, it appears that Witt was initially treated in the emergency room of Providence Hospital where he was advised by the attending physician that he had sustained several bruised ribs in the accident. He was fitted with a rib belt and released that same day. On November 3, 1975, complaining of right rib and back pain, he was examined by Dr. Laufer. The doctor informed him that he had one or two cracked ribs and several bruised ribs. On November 17, 1975, he received a complete physical examination from Dr. F. Leland Jones. Witt complained of discomfort in the right flank and right chest areas. Dr. Jones confirmed the diagnosis of cracked ribs and also discovered a slight elevation of alkaline phosphatase. Because the area of injury was near the kidneys, Dr. Jones decided to perform some kidney func tion tests and to refer Witt to Dr. Prindi-ville, a specialist in internal medicine, and Dr. Coles, a urologist. Dr. Jones advised Mr. Rauch of Witt's condition and told Rauch that to the best of his knowledge, Witt's continued back and flank pain was not related to the accident. Dr. Jones also indicated to Witt that the back pain was not related to the accident. Further examination by Drs. Prindiville and Coles revealed a bladder problem, for which surgery was recommended. Dr. Prindiville informed Witt that the symptoms were probably not related to the automobile accident and further stated that the back problem would probably be alleviated by the bladder operation. Witt first engaged in settlement negotiations by contacting Mr. Rauch early in March 1976. Rauch offered $1,500.00 plus medical bills submitted to date. This offer was declined by Witt. According to Rauch, Witt indicated that he had discussed the matter with his attorney who had advised him to take not less than $5,000.00, plus medical bills, if he decided to settle. On March 8, 1976, the parties agreed on a settlement figure of $3,000.00, plus paid medicals. An agreement was executed by Witt which released Watkins from any and all claims "on account of all injuries, known and unknown, both to person and property, which have resulted or may in the future develop" from the accident of October 28, 1975. On or about May 3, 1976, Witt's bladder was removed by Dr. Sayers who, according to Witt's affidavit, "discovered that my back had been broken in two places (two broken vertebrae), . . . " and told him that the broken vertebrae were "quite probably related to the automobile accident of October 28, 1975." Witt alleges that, in signing the release, he acted under the mistaken belief that the only injury sustained in the accident was to his ribs and that, had he known of the broken vertebrae, he would not have executed the document. Rauch indicated in his deposition that from what Witt and Dr. Jones had told him, he could not be sure whether Witt's internal problems were related to the accident or not. In his conference with Witt, Rauch could recall no mention of a back injury. Rauch did say he believed that there was something "unknown as to the exact nature, . . . extent . . . [and] cause of all Mr. Witt's medical problems." In his opinion, the possibility of unidentified problems entered into the settlement. The trial judge concluded that there was a unilateral mistake of fact on Witt's part as to the nature of his injuries when he signed the release, but that there was no such mutual mistake as would render the release unenforceable. As might be anticipated, there are a vast number of eases raising the issue of whether releases for personal injuries are enforceable under varying circumstances. Generally, a release may be avoided for fraud or mutual mistake of fact. The traditional approach is summarized by Willi-ston as follows: A release though general in terms will be reformed so as to cover merely the right with regard to which the parties were dealing and exclude rights of which they were ignorant. This principle has sometimes been extended so as to exclude from the operation of a release unknown or unexpected consequences of a known right to which the release applied and was intended to apply. Thus, where a release is given by one injured in an accident and more serious injuries develop than were supposed to exist at the time of the settlement, it is a question of fact whether the parties assumed as a basis of the release the known injuries, or whether the intent was to make a compromise for whatever injuries from the accident might exist whether known or not. On a fair interpretation not only of the language of the instrument, but of the intention of the parties, the latter supposition is more likely, but presumably out of tenderness for injured plaintiffs some courts have gone very far in finding the facts in accordance with the former possibility. Equity will reform or rescind in a direct proceeding a release given for accidental injuries, but the more common recognition of the equitable principle that a release will be avoided in case of an injury unknown at the time of settlement occurs where the release is avoided in an action at law brought to recover damages for the injury, (footnotes omitted) Except where the mistake is known to the other party to the transaction, Willi-ston criticizes extending relief for a unilateral mistake because of its contradiction of the objective theory of mutual assent in the formation of contracts. If one views the parties to the contract from the standpoint of objective reasonable parties, one cannot consider the subjective mistake of fact under which one of the parties was laboring, where the other party is unaware or has no reason to be aware of such a mistake. Judge Frank, in his perceptive concurrence in Ricketts v. Pennsylvania R. Co., 153 F.2d 757, 765 (2d Cir. 1946), criticizes this artificial test and points out that some courts have abandoned the "objective" test, saying boldly that a non-negligent unilateral mistake justifies cancellation or rescission of a contract. Similarly, Wigmore indicates that the modern trend is not to lay down rules of thumb but to develop a special doctrine liberally relieving the party who has signed the release. It should make little difference whether or not the releasor, alone, was laboring under a mistake as to his physical or mental condition at the time of executing a release. If all the circumstances are fully revealed to him before signing, he should have essentially the same information as the releasee. When the mistake is of substantial consequence, it would seem that relief should be afforded in the absence of persuasive reasons to the contrary. Obviously, the preservation of agreements entered into in good faith and the encouragement of settlement of disputes constitute strong arguments for enforcing releases. We believe that these interests may still be preserved without adhering to rigid formulas dependent upon whether mistakes are unilateral or mutual. The test should be whether, at the time of signing the release, the releasor intended to discharge the disability which was subsequently discovered. Relevant to the determination of this question are all of the facts and circumstances surrounding execution of the release. Also relevant to the determination is whether a reasonable person in the position of the releasor under the circumstances then existing would have had such an intent. In enunciating this test, we deliberately have not preserved the additional artificial distinction between cases involving a known injury which proves to be much more serious than believed, and an injury different in type from that originally known. In some cases where the injury is of a different type, it may be no more disabling than originally anticipated, whereas a known injury may initially be believed to be innocuous and later prove to be totally debilitating. There may be three types of mistakes with reference to an injury. First, there may be a mistake as to the fact of injury. A release may be signed by a party believing that property damage only was sustained, whereas later it becomes apparent that a physical injury was suffered. Second, there may be a mistake as to the character of the injury. One could believe that he had an injury only of his ribs, whereas later, a fracture of vertebrae might be discovered. Third, there may be a mistake as to the extent of injuries. For example, one could believe he has but a mild knee injury which later proves to be crippling. In many cases, there may be an overlap between the second and third categories, dependent upon the accuracy of the diagnosis. A knee injury may appear to be a mild ligament strain and prove to involve a ruptured cartilage. One analysis could consider the difference as one of degree; another could consider the difference as one of fundamental character. To an extent, such an ambiguity is presented here. Witt complained of pain in his back which could have been related to the accident, although not believed by the doctor to be so related. It is now indicated that he suffered fractured vertebrae in the accident. This may be regarded as a difference in the extent of his back injuries or as a different character of injury. Niceties of distinction between the extent of a known injury or a difference in the character of the injury should not be determinative. In either event, the decision as to whether the release is enforceable should hinge on whether the releasor, at the time of signing the release, intended to discharge the disability which was subsequently discovered. A party may very well enter into an agreement contemplating the possibility that his condition may substantially worsen in the future, but hoping that it will not. The occurrence of the worsening condition under those circumstances is not a basis for disregarding the release. As Corbin states: If a claim is made for damages for an injury, a compromise settlement is ordinarily not made voidable for mistake because the injury was greater and lasted longer than was expected at the time of the settlement, if the parties knew or had reason to know that the extent of the injury was uncertain and that was the very reason for the compromise, (footnotes omitted) Once the party relying on a release establishes that it was given with an understanding of the nature of the instru ment, the burden is on the releasor to show by clear and convincing evidence that the release should be set aside. Factors that may be considered are the manner in which the release was obtained — including whether it was hastily secured at the instigation of the releasee; whether the releasor was at a disadvantage because of the nature of his injuries; whether the releasor was represented by counsel; whether he relied on representations of the releasee or a physician retained by the releasee and whether liability was seriously in dispute. The relative bargaining positions of the parties and the amount to be paid should also be considered. In applying these criteria to the facts in this case, we agree with the trial judge that there is no evidence of any coercion or fraud, nor does it appear that the release was hastily entered into or even induced by the insurance company. Moreover, Witt indicated to Rauch that he was represented by counsel. The sole issue regarding summary judgment was whether there was a mistake so as to justify not enforcing the release. Even if we were to adhere to the mutual mistake requirement, we cannot agree that on the basis of the evidence presented on the motion for summary judgment that it can be said as a matter of law that no mutual mistake existed. Here, it is not disputed that Witt had no knowledge at the time of executing the release that he had incurred an injury involving fractured vertebrae. While Mr. Rauch's testimony was not as clear, a factual issue was presented as to whether he was laboring under a mistake as to Witt's back injury. Under our view of the law, however, it is immaterial whether any such mistake was unilateral or mutual. The focal and difficult question presented is whether the condition caused by the fractured vertebrae was a category of disability intended to be discharged by Witt at the time he signed the release. Here, both parties were aware that Witt was suffering from internal problems which, while not likely to have been caused by the collision, could have been attributable to it. The settlement was probably made in part with this in mind. A question is presented as to whether the fractured vertebrae caused any increased disability, and particularly, as to whether such disability, if any, was of a type substantially different from the possibilities of disability considered by Witt at the time he signed the release. The parties have argued the case to the court below and to us on the former standard of whether there was a mutual mistake. Since we believe that a factual issue was presented on that question, we hold that the trial court was in error in granting summary judgment. Additionally, the trial court, without a controlling decision applicable, quite understandably followed the rule of law under which releases could not be avoided for unilateral mistake. Since this is our first opportunity to pass on the issues, we normally would deem it advisable to remand the case to the superior court for the purpose of ascertaining whether the nature of Mr. Witt's disability, if any, resulting from the fractured vertebrae is of such character that Witt did not intend that it be discharged at the time of signing the release. A remand in the instant case is unnecessary, however. Subsequent to the drafting of this opinion, we have been informed that the parties have settled their dispute. While our holding will not, therefore, affect the litigants at bar,, we deem the issues of sufficient importance to justify publication of this opinion. .In oral argument on the motion for summary judgment, Witt's attorney denied that Witt had conferred with an attorney prior to settlement, but no counter-affidavit was filed so that, for purposes of summary judgment, Mr. Rauch's affidavit must be accepted. . See annotations at 117 A.L.R. 1022; 164 A.L.R. 402 and 71 A.L.R.2d 82. . See Note 8, Creighton L.Rev. 30, 35-36 (1974) by William D. Artus, attorney for appellant herein. The note focuses on Swartz v. Topping, 191 Neb. 41, 213 N.W.2d 718 (1974). . 5 Williston on Contracts, § 1551 at 4347 — 49 (1937). . Id. § 1573 at 4399. Williston also excepts cases where the one against whom relief is sought is a volunteer or where there is a non-negligent mistake in executing the instrument. . Id. § 1579 at 4412. But in most cases of unilateral mistake, the other party is aware of that fact. If the party seeking the release knows the true nature of the releasor's injuries and withholds that information, fraud may be found. See cases cited in 71 A.L.R.2d 133-35. . Judge Frank cites Rosenblum v. Manufacturers Trust Co., 270 N.Y. 79, 200 N.E. 587, 105 A.L.R. 947 (1936); Meade v. Brown, 218 Mich. 556, 188 N.W. 514 (1922); In re Clark's Estate, 233 App.Div. 487, 253 N.Y.S. 524 (1931); Harper, Inc. v. City of Newburgh, 159 App.Div. 695, 145 N.Y.S. 59 (1913); City of New York v. Seely-Taylor Co., 149 App.Div. 98, 133 N.Y.S. 808, 811 (1912), affirmed on opinion below, 208 N.Y. 548, 101 N.E. 1098 (N.Y.1913); Seidman v. New York Life Ins. Co., 162 Mise. 560, 296 N.Y.S. 55, 56 (Sup.Ct.1937). Although Judge Frank found significance in the fact that the releasor in Ricketts was an employee of the defendant railroad, 153 F.2d at 768-69, we do not believe the reasoning of his concurrence is limited to such situations. The relative bargaining position of the parties is one factor to be considered, see discussion infra; but an employer/employee relationship is not determinative. See, e. g., Ranta v. Rake, 91 Idaho 376, 421 P.2d 747, 751 (1966), and Clancy v. Pacenti, 15 Ill.App.2d 171, 145 N.E.2d 802, 805 (1957). Both of these cases involved automobile accidents where releases were set aside, referring to Judge Frank's concurrence. .9 Wigmore on Evidence, § 2416 at 55 (3d ed. 1940). .Our test is similar to that enunciated in Ranta v. Rake, 91 Idaho 376, 421 P.2d at 573. See also, Finch v. Carlton, 84 Wash.2d 140, 524 P.2d 898, 900-01 (1974); Casey v. Proctor, 59 Cal.2d 97, 28 Cal.Rptr. 307, 378 P.2d 579, 588-89 (1963); Clancy v. Pacenti, 15 Ill.App.2d 171, 145 N.E.2d at 805. . "Cady v. Mitchell, A New Look at the Personal Injury Release in Pennsylvania," 28 U.Pitt.L.Rev. 109, 111 (1966). . A great difference in degree may be more important than a difference in kind. 6 Corbin on Contracts, § 1292 at 183 (1962). . 6 Corbin on Contracts, § 1292 at 181-82 (1962). . 71 A.L.R.2d 82, 172. . 71 A.L.R.2d 82, 172; Lion Oil Ref. Co. v. Albritton, 21 F.2d 280, 282 (8th Cir. 1927); Ranta v. Rake, 91 Idaho 376, 421 P.2d at 752; Fraser v. Glass, 311 Ill.App. 336, 35 N.E.2d 953, 956 (1941). . See generally, Schmidt v. Smith, 216 N.W.2d 669, 673 (Minn. 1974); Casey v. Proctor, 378 P.2d at 589. . A much more liberal rule applies in cases of personal injury releases involving seamen because of their relatively poor bargaining position. Garrett v. Moore-McCormack Co., 317 U.S. 239, 248, 63 S.Ct. 246, 252, 87 L.Ed. 239, 245 (1942). It has also been suggested that releases executed by employees should be more readily set aside for this reason. Ricketts v. Pennsylvania R. Co., 153 F.2d 757, 760 (2d Cir. 1946) (Frank, J., concurring). .The court would also consider whether Mr. Witt entered into the settlement in contemplation that his disability might prove to be much more serious than indicated when the release was signed and the other factors enumerated, supra. . The peculiar nature of releases for personal injuries warrants a single treatment since we are concerned with the human mind and body and not an article of commerce. Mistakes are made, and the consequences thereof cannot be appraised as in matters involving property or services. Thus, our holding is limited to contracts involving releases of liability in personal injury cases and has no application to issues of mistake in commercial transactions. See Clancy v. Pacenti, supra. . We have previously stated that mootness is "a matter of judicial policy, not constitutional law." R.L.R. v. State, 487 P.2d 27, 45 (Alaska 1971). Where a resolution of a particular question is of significant public interest, we may, in our discretion, resolve it despite the fact that the parties have settled their dispute. In Liberty Mutual Insurance Co. v. Fales, 8 Cal.3d 712, 106 Cal.Rptr. 21, 505 P.2d 213, 215 (1973), the Supreme Court of California resolved a question concerning the right of an insurance company to pursue a subrogated claim under the terms of an uninsured motorist clause in an insurance policy, even though the judgment entered by the trial court had been satisfied. The court stated: "It is evident that the question at bar involves a matter of continuing public interest." Id. 106 Cal.Rptr. at 23, 505 P.2d at 215. See also, Leonard v. City of Bothell, 87 Wash.2d 847, 557 P.2d 1306, 1308 (1976); Hartman v. Washington State Game Commission, 85 Wash.2d 176, 532 P.2d 614, 615 (1975); Leak v. High Point City Council, 25 N.C.App. 394, 213 S.E.2d 386, 388-89 (1975); In re Recall of Certain Elected Officials, City of Delafield, 63 Wis.2d 362, 217 N.W.2d 277, 279 (1974); City of Albuquerque v. Campos, 86 N.M. 488, 525 P.2d 848, 851 (1974); Maguire v. Fulton, 179 N.W.2d 508, 509-10 (Iowa 1970); Arizona Osteopathic Medical Association v. Fridena, 105 Ariz. 291, 463 P.2d 825, 826, cert. denied, 399 U.S. 910, 90 S.Ct. 2201, 26 L.Ed.2d 562 (1970); 132 A.L.R. 1185.

10471584

ALASKA STATE BANK, Appellant, v. GENERAL INSURANCE CO. OF AMERICA, Appellees; GENERAL INSURANCE CO. OF AMERICA, Cross-Appellant, v. ALASKA STATE BANK, Cross-Appellee

Alaska State Bank v. General Insurance Co. of America

1978-02-10

Nos. 2638, 2713

1362

1372

579 P.2d 1362

579

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:54:24.577259+00:00

CAP

Before BOOCHEVER, C. J., and RABI-NOWITZ, CONNOR, ERWIN and BURKE, JJ.

ALASKA STATE BANK, Appellant, v. GENERAL INSURANCE CO. OF AMERICA, Appellees. GENERAL INSURANCE CO. OF AMERICA, Cross-Appellant, v. ALASKA STATE BANK, Cross-Appellee.

ALASKA STATE BANK, Appellant, v. GENERAL INSURANCE CO. OF AMERICA, Appellees. GENERAL INSURANCE CO. OF AMERICA, Cross-Appellant, v. ALASKA STATE BANK, Cross-Appellee. Nos. 2638, 2713. Supreme Court of Alaska. Feb. 10, 1978. As Amended on Grant of Rehearing June 16, 1978. Herbert Berkowitz, Ely, Guess & Rudd, Anchorage, for appellant-cross-appellee. John Anthony Smith, Anchorage, for ap-pellee-cross-appellant.

6373

38980

OPINION Before BOOCHEVER, C. J., and RABI-NOWITZ, CONNOR, ERWIN and BURKE, JJ. BURKE, Justice. The dispute in this case centers on whether a bonding company's interest in earned progress payments qualifies as a security interest subject to the filing and priority provisions of the Alaska Uniform Commercial Code. The events leading to this controversy began when Gilman's Construction, Inc., formerly Gilman's Excavating, Inc., contracted with the State of Alaska to construct Project No. F-046-l(16) and LSF-046-1(4), commonly known as the Tok Cutoff Project. The contract was executed on September 18,1970. Needing payment and performance bonds, Gilman's approached appellee General Insurance Company of America (hereinafter the bonding company). The bonding company agreed to write the necessary bonds and acquired collateral against possible losses by requiring Gil-man's to execute an instrument entitled "General Agreement of Indemnity for Contractors." Among other things, this agreement, which was executed in July of 1970, assigned to the bonding company Gilman's right to monies earned under bonded contracts. The agreement contained a'provision for perfection by the bonding company, under the Uniform Commercial Code, of the alleged security interest granted to it by Gil-man's. [The parties] [ajgree that this agreement may at any time be completed and filed by [the bonding company] in such a manner that it will qualify as a financing statement under the applicable provisions of any statute of any state which has adopted the Uniform Commercial Code, and that [the bonding company] may add such schedules to this agreement, describing specific items of security covered hereunder as shall be necessary under such statutes. The bonding company, however, chose not to file the agreement or any other document as a financing statement. Subsequently, the bank, in financing Gilman's operations, acquired security for its loans by inducing Gilman's to execute on July 23, 1970 a security agreement assigning to the bank, inter alia, all of Gilman's contract rights. The bank attempted to perfect this security interest by filing a financing statement on August 5, 1970 with the Alaska Department of Administration, as required by the Uniform Commercial Code. Gilman's commenced work on the Tok Cutoff job. On or about September 8,1971, however, Gilman Watts, the principal of Gilman's, presented himself at the offices of the bonding company in Seattle and acknowledged that he could not complete his contract. Gilman's had at that tim.e fully earned a progress payment.of $169,895.00, but the money had not, as yet, been disbursed by the State. Thereafter, representatives of the bonding company attended a meeting in Anchorage with officers of the bank. The meeting resulted in the establishment of a trust account at the bank for use by the bonding company in connection with the Tok Cutoff job. In mid-September the State was informed by telegram and letter from the bonding company and Gilman, respectively, that Gilman's was in default; had suspended work on the project; was unable to complete the contract with the State; and was unable to pay its laborers, materialmen and suppliers. The State was further informed that the bonding company was completing the project. Nine days later, on September 29, the State issued a check in the amount of $169,895.00 payable to the bonding company. The check was sent to the bank where it was deposited in the trust account without signature and collected. On October 11, 1971, a cashier's check in the amount of $169,895.00 was sent by the bank to the bonding company. When subsequent investigation revealed that the bonding company had failed to perfect its alleged security interest in the earned progress payment, the bank commenced this action. The respective positions of the parties can be summarized as follows: The bonding company argues that when a contractor defaults and a bonding company steps in to complete the job and pay laborers and materialmen, it is subrogated to the rights of the owner, the contractor, the laborers, and the materialmen. Since the owner could have used funds still in its hands to complete the job, there would have been no sums available for the contractor and, therefore, for the contractor's secured creditor who stands in the contractor's shoes. Under this view the bonding company has first rights to the progress payment, although it may have been fully earned by the contractor's prior performance. The bank argues that progress payments are contract rights and that the bonding company's subrogation theory merely purports to impose on them a hidden lien. The bank urges that both it and the bonding company had the power to take advantage of Article 9 of the Uniform Commercial Code and perfect their respective security interests. Under this view, the bank had prior rights since it utilized the U.C.C. while the bonding company did not. Judge Eben Lewis, in a Memorandum Decision handed down on February 10, 1975, accepted the bonding company's view. He utilized as his standard the "Fifth Circuit Doctrine" which holds that only when the bank's money can be shown to have gone into a project to earn an undisbursed progress payment does the bank have a superior equitable claim since it relieved the bonding company of a burden that it would otherwise have had to bear. Judgment was entered for the bonding company on cross motions for summary judgment when Judge Lewis found that the bank had failed to establish that its money was traceable to the Tok Cutoff job. The first major issue that confronts this court is whether the lower court erred in finding that the unperfected assignment by Gilman's to its bonding company, of earned progress payments, was a security interest governed by the Uniform Commercial Code, as adopted in Alaska. The bank urges the court that this "classic dispute" between bank and bonding company should be resolved under the Uniform Commercial Code. It cites various cases decided by this court in an attempt to buttress its argument that the adoption of the Uniform Commercial Code reflects a legislative judgment to apply U.C.C. principles even where the U.C.C. by its terms is not applicable. Even though the U.C.C. does not specifically deal with the case at bar, the bank argues that the policy of the U.C.C. is to draw distinctions based on functional rather than formal lines. According to the bank, both it and the bonding company initially had an interest in a "contract right;" that is, "a right to payment under a contract not yet earned by performance and not evidenced by an instrument or chattel paper." It should be noted that the Indemnity Agreement assigns to the bonding company: Monies due or to become due Contractor on any Contract, including all monies earned or unearned which are unpaid at the time of notification by [the bonding company] to the Obligee of [the bonding company's] rights hereunder. It follows, the bank stresses, that the bonding company has by assignment intended to enter a transaction creating an interest in personal property that secures payment or performance of an obligation subject to the filing and priority provisions of the U.C.C. When this position is coupled with the fact that there is no mention of this type of agreement in the U.C.C. provisions excluding certain transactions, the Bank proposes that the U.C.C. scheme is applica ble and that the lower court was in error. Yet the bank offers no direct case authority to support its position. The bonding company counters that the equitable principle of subrogation should control and that the court properly found that a surety's right of subrogation is not a security interest governed by the U.C.C. As one court has stated: Our effort will be to see what subrogation means in the transaction before us, to see what extent Article 9 [of the U.C.C.] is devised to deal with such a transaction, and to apply relevant case law. Subrogation is an old term, rooted in equity, and semantically stemming from words meaning 'ask under'. Today we use the parallel phrase, 'stand in the shoes of'. The equitable principle is that when one, pursuant to obligation — not a volunteer, fulfills the duties of another, he is entitled to assert the rights of that other against third persons. In attempting to address the problem presented we find that the majority of American jurisdictions which have considered the question have accepted the theory of equitable subrogation as the rule in situations such as the one before us. In National Shawmut Bank of Boston v. New Amsterdam Casualty Co., Anderson Bros., Inc., a general contractor, entered into three construction contracts with the United States Air Force for work at Otis Air Force Base in Massachusetts and Dow Air Force Base in Maine. As Required by the Miller Act, Anderson Bros., Inc. applied to a surety for payment and performance bonds. Contained in the application for the bonds was an assignment to the surety of "earned monies that may be due or become due under the contract." This assignment to the surety was not recorded under the U.C.C. The contractor thereafter defaulted. In holding that the surety was subrogat-ed to the government's right to apply to the cost of completion the earned but unpaid progress payments in its hands at time of default the court allowed recovery of such payments although the bank had previously filed a financing statement. The court based this result on several factors. (1) The Code's definition of a security interest as "an interest in personal property or fixtures which secures payment or performance of an obligation . . . [and which] includes any interest of a buyer of accounts . or contract rights" does not seem to fit the construction contract surety. The essence of the "security" is the opportunity, on default, to finish the job and apply any available funds against its cost of completion. This was held not to fall within the purview of personal property. (2) The term surety does not fit into the definition of a buyer of contract rights. The right to finish a job "is not the kind of independently valuable asset that such synonyms as 'goods, documents, instruments, general intangibles [and] chattel paper' suggest." (3) Section 9-102(2) [AS 45.05.692(b)] requires security interests to be "created by contract." The real security was "not the assignment of accounts receivable — which could be, failing the completion of performance, set off by the government — but the eventual right to be in the shoes of the government upon job completion. This is not 'created by contract' but rather [results from it], inhering in a surety, quite independently of the expressed terms of the contract." (4) The drafters of the U.C.C. rejected a proposed § 9-312(7) to the Code which would have provided that "a security interest which secures an obligation to reimburse a surety secondarily obligated to complete performance is subordinate to" the claim of a later lender with a perfected security interest. The view that the right of equitable sub-rogation is not a security interest for the purposes of Article 9 of the U.C.C. has been adopted by the Eighth Circuit Court of Appeals in In Re Gleason Co. and by the United States Court of Claims in Home Indemnity Company v. United States. The states of Kansas, Kentucky, Mississippi, Pennsylvania, New York and Massachusetts also adhere to this position. We note that one of the basic policies embodied in the Uniform Commercial Code is a desire to make the law of commercial transactions uniform throughout the various jurisdictions. To that end we hold that a surety's right to earned progress payments does not qualify as an interest in personal property subject to the filing provisions of the Alaska Uniform Commercial Code since the surety has the right to complete the job it has bonded and apply any earned funds against its costs. This does not secure the payment or performance of an obligation as a "security interest" as that term is defined in AS 45.05.-020(37). We note with approval the opinion of the court in National Shawmut Bank that a surety also does not fall into the definition of a buyer of contract rights and that a surety's interest in completing a project is not sufficient to be a security interest "created by contract." The bonding company contended in the lower court that a letter executed by the President of the Bank constituted a waiver of the bank's right to any earned progress payment. Judge Lewis after hearing testimony on that issue found there had been no waiver. The second major issue presented in this case arises on a cross-appeal and concerns the failure of the lower court to award costs to the bonding company for expenses it incurred in litigating that waiver issue. The bonding company's argument that the court abused its discretion in failing to award it its costs on the waiver issue is without merit. In DeWitt v. Liberty Leasing Company of Alaska, 499 P.2d 599, 600-01 (Alaska 1972) we held: Under AS 09.60.010 and Civil Rule 54(d), the prevailing party is entitled to costs, including an award for attorney's fees. The determination of which party prevailed is committed to the discretion of the trial court and is reviewable on appeal only for abuse, (footnotes omitted). Our opinion in that case quoted Buza v. Columbia Lumber Company, 395 P.2d 511, 514 (Alaska 1964), where we discussed the meaning of the term "prevailing party:" The dictionary states that 'Prevailing applies esp. to that which is predominant,' and it has been established by case law that the prevailing party to a suit is the one who successfully prosecutes the action or successfully defends against it, prevailing on the main issue, even though not to the extent of the original contention. He is the one in whose favor the decision or verdict is rendered and the judgment entered, (footnotes omitted; emphasis added). Applying the standard of DeWitt, it can be seen that the bonding company is the "prevailing party," and an award of attorney's fees was appropriate. However, it does not follow that the superior court abused its discretion by declining to award attorney's fees on each of the contested issues comprising the litigation. The superior court ruled against the bonding company on the waiver question, and it is not "manifestly unreasonable" that it should take that factor into consideration in determining what overall amount of attorney's fees and costs should be awarded to the prevailing party. Such an approach is consistent with the observation we made regarding denial of costs to a prevailing party in Cooper v. Carlson, 511 P.2d 1305 (Alaska 1973). There we said: [W]e do not believe that this is an appropriate case to authorize a denial of all costs to the prevailing party. . [T]he trial court should determine whether particular items on the cost bill should be disallowed as unnecessary to the litigation, but should award proper items of costs. As a second argument the bonding company asserts that Judge Lewis was in error in awarding only $5,000 for its attorney's fees, refusing to calculate the amount of attorney's fees according to the schedule contained in Civil Rule 82(a)(1). The bonding company urges that Civil Rule 82(a)(1), which provides for a schedule of attorney's fees when a money judgment is recovered, should have been applicable since the result in this case had the same practical effect as a money judgment in its favor. We find such argument unpersuasive. The only money judgment in favor of the bonding company was some $1,300 on its counterclaim. On the main issue, there was no such judgment; that is, the financial status quo of the bonding company was preserved. Thus, Judge Lewis correctly ruled that attorney's fees were to be awarded, under Rule 82(a)(1), "in a reasonable amount," rather than according to the schedule contained therein. The determination of attorney's fees is committed to the discretion of the trial court and reviewable on appeal only for abuse. That abuse, is present only where it appears the trial court's determination was manifestly unreasonable, arbitrary or designed for a purpose other than justly deserved compensation. Our review of the record has led us to conclude that the trial judge properly considered those factors which are salient to such a decision on attorney's fees. Therefore, we find there was no abuse of discretion in the court below. AFFIRMED. . AS 45.05. . AS 45.05.734(a) provides: When filing is required to perfect security interest; security interests to which filing provisions do not apply, (a) A financing statement must be filed to perfect all security interests... . Morrow v. New Moon Homes, Inc., 548 P.2d 279 (Alaska 1976); Adams v. Waddell, 543 P.2d 215 (Alaska 1975); Kupka v. Morey, 541 P.2d 740 n. 3 (Alaska 1975); McGalliard v. Liberty Leasing Co. of Alaska, Inc., 534 P.2d 528 (Alaska 1975); Prince v. LeVan, 486 P.2d 959 (Alaska 1971); Rego v. Decker, 482 P.2d 834 (Alaska 1971). Appellant's Brief at 9-10. . AS 45.05.690 provides: Short Title. Sections 690-794 of this chapter shall be known and may be cited as Uniform Commercial Code — Secured Transactions. The Official Comment to U.C.C. § 9-101:1 (AS 45.05.690) provides in pertinent part: This Article sets out a comprehensive scheme for the regulation of security interests in personal property and fixtures. It supersedes existing legislation dealing with such security devices as chattel mortgages, conditional sales, trust receipts, factor's liens and assignments of accounts receivable. The aim of this Article is to provide a simple and unified structure within which the immense variety of present day secured financing transactions can go forward with less cost and with greater certainty. He ⅜ ⅜ ⅜ The scheme of the Article is to make distinctions, where distinctions are necessary, along functional rather than formal lines. Anderson, Uniform Commercial Code Vol. IV pp. 1, 3 (2nd ed. 1971) . AS 45.05.700. . AS 45.05.692(a)(1) provides in pertinent part: Policy and Scope, (a) Except as otherwise provided in § 694 of this chapter on multiple state transactions and in § 696 of this chapter on excluded transactions, § 690-794 of this chapter apply, as far as concerns personal property and fixtures in the jurisdiction of the state, (1) to a transaction (regardless of its form) which is intended to create a security interest in personal property or fixtures including goods, documents, instruments, general intangibles, chattel paper, accounts, or contract rights; . . . . AS 45.05.020(37) provides in pertinent part: General Definitions. Subject to additional definitions contained in the subsequent articles of this chapter which are applicable to specific articles or sections, and unless the context otherwise requires, in this chapter, (37) 'security interest' means an interest in personal property or fixtures which secures payment or performance of an obligation. . AS 45.05.692(b) provides in pertinent part: (b) Sections 690-794 of this chapter apply to security interests created by contract, including pledge, assignment, chattel mortgage, chattel trust, trust deed, factor's lien, equipment trust, conditional sale, trust receipt, other lien or title retention contract, and lease or consignment intended as security. Sections 690-794 of this chapter do not apply to statutory liens except as provided in § 750 of this chapter. . See note 2 supra. . AS 45.05.754(e)(1) provides in pertinent part: Priorities among conflicting security interests in the same collateral. (e) In all cases not governed by other rules stated in this section (including cases of purchase money security interests which do not qualify for the special priorities set forth in (c) and (d) of this section), priority between conflicting security interests in the same collateral shall be determined as follows: (1) in the order of filing if both are perfected by filing, regardless of which security interest attached first under § 722(a) of this chapter and whether it attached before or after filing. . AS 45.05.696 provides: Transactions excluded. Section 690-794 of this chapter do not apply (1) to a security interest subject to any statute of the United States such as the Ship Mortgage Act, 1920, to the extent that the statute governs the rights of parties to and third parties affected by transactions in particular types of property; or (2) to a landlord's lien; (3) to a lien given by statute or other rule of law for services or materials except as provided in § 750 of this chapter on priority of the liens; (4) to a transfer of a claim for wages, salary, or other compensation of an employee; (5) to an equipment trust covering railway rolling stock; (6) to a sale of accounts, contract rights, or chattel paper as part of a sale of the business out of which they arose, or an assignment of accounts, contract rights, or chattel paper which is for the purpose of collection only, or a transfer of a contract right to an assignee who is also to do the performance under the contract; (7) to a transfer of an interest or claim in or under a policy of insurance; (8) to a right represented by a judgment; (9) to a right of setoff; (10) except to the extent that provision is made for fixtures in § 756 of this chapter, to the creation or transfer of an interest in or lien on real estate, including a lease or rents under the interest; (11) to a transfer in whole or in part of any of the following: a claim arising out of tort; a deposit, savings, passbook, or like account maintained with a bank, savings and loan association, credit union, or like organization; or (12)to a security interest created by or on behalf of the state or any of its political subdivisions (including but not limited to the unorganized borough or any city or borough of any class, whether home rule or not) or any service area, public enterprise, public corporation, agency or instrumentality of the state or of any of its political subdivisions. . National Shawmut Bank of Boston v. New Amsterdam Casualty Co., 411 F.2d 843, 844 (1st Cir. 1969). There is authority in Alaska for the proposition that: A surety who completes a contract or satisfies the claims of laborers and materialmen has established a subrogation right to all . progress payments, which are in the hands of the contractee. Reliance Insurance Co. v. Alaska State Housing Auth., 323 F.Supp. 1370 (1971). However, that case is distinguishable on the fact that it involved a straight assignment versus the applicability of the U.C.C. at issue here. It should be noted that due to the interstate nature of a surety's business much of the case law finds its source in Federal court. . 411 F.2d at 843. . 40 U.S.C. § 270a et seq. . 411 F.2d at 844. . Id. at 844. . Id. at 845-46. . Id. at 846. . Id. . Id. at 846. In addition, the court quoted the U.C.C. Editorial Board's Comments which we also find persuasive. The ' Surety Companies' representatives convincingly took the position that subsection (7) as it stands is a complete reversal of the case law not only of the Supreme Court of the United States but also of the highest courts of most of the states. They cited Prairie State National Bank v. United States, 164 U.S. 227, 17 S.Ct. 142, 41 L.Ed. 412 (1896); Henningsen v. U. S. F. & G., 208 U.S. 404, 28 S.Ct. 389, 52 L.Ed. 547 (1908); United States v. Munsey Trust, 332 U.S. 234, 67 S.Ct. 1599, 91 L.Ed. 2022 (1947) at 240; 9 Am.Jur. 72, § 114, 115; 43 Am.Jur. 939, § 197 et seq.-, 60 C.J. Subrogation § 87; Steams Law of Suretyship, 5th Ed. (1951), Page 472; Appeal of Lancaster County Natl. Bk" 304 Pa. 437, 155 A. 859 (1931); and 127 A.L.R. 974, 976. . . . Under the cited case law, the surety's rights come first as to the funds owing by the owner unless the surety has subordinated its right to the bank. Subsection (7) of the Code as written would reverse the situation and give the bank priority in all cases. 'Under existing case law, both the contractor and the bank are in a position to bargain with the surety which may or may not be willing to subordinate its claim. Under subsection (7) as written in the Code the surety company would have nothing to bargain about.' Uniform Laws Annotated, Uniform Commercial Code, Official Draft. Text and Comments, at 773, 777 (1952); Uniform Laws Annotated, Uniform Commercial Code, Changes in Text and Comments, at 25-26 (1953). . 452 F.2d 1219 (8th Cir. 1971). . 433 F.2d 764 (Ct.C1.1970). The court here was asking whether the Illinois U.C.C. was intended to supersede the right of equitable subrogation. . United States F. & G. Co. v. First State Bank of Salina, 208 Kan. 738, 494 P.2d 1149 (1972). . National Surety Corp. v. State National Bank of Frankfort, 454 S.W.2d 354 (Ky.Ct.App.1970) (dicta). . Travelers Indemnity Co. v. Clark, 254 So.2d 741 (Miss.1971). . Jacobs v. Northeastern Corp., 416 Pa. 417, 206 A.2d 49 (1965). . Aetna Casualty and Surety Co. v. Perrotta, 62 Misc.2d 252, 308 N.Y.S.2d 613 (1970). . Canter v. Schiager, 358 Mass. 789, 267 N.E.2d 492 (1971). . AS 45.05.004(b)(3). . AS 45.05.020(37). . See note 1 supra. . See National Shawmut Bank, supra at 845-46. . Id. at 846. . Id. As a secondary argument the bank claims that the bonding company's theory of equitable subrogation should be rejected because "equity will only intervene where there is no adequate remedy at law." The Massachusetts Supreme Judicial Court answered this argument in Canter v. Schiager, 358 Mass. 789, 267 N.E.2d 492, 494 (1971). In affirming its view that the U.C.C. was inapplicable to a surety's right to equitable subrogation, the court stressed Section 1-103 [AS 45.05.006] of the Code provides in part 'Unless displaced by the particular provisions of this chapter, the principles of law and equity . . . shall supplement its provisions.' 'No provision of the Code purports to affect the fundamental equitable doctrine of subrogation.' (citation omitted). We find the Massachusetts court's statement dispositive on this issue. . In DeWitt, we reaffirmed the balancing of recovery approach previously applied in Nor-din Construction Company v. City of Nome, 489 P.2d 455, 474 (Alaska 1971): A simple balancing of the recovery in favor of each party makes it clear that the [appellant] was the prevailing party in this lawsuit and should have been awarded costs. Other factors have also been used in determining who the prevailing party is. At the trial of Cooper v. Carlson, 511 P.2d 1305 (Alaska 1973), neither party recovered money damages and the trial court refused to. grant attorney's fees. On appeal, this court found the "prevailing party" by considering "the central issues of the case and the trial court's resolution of them." Id. at 1307. Even though [appellant] did not prevail on . [a particular] subsidiary issue, it is clear . . . that a party may be the 'prevailing party' if he is successful with regard to the 'main issues in the action.' " Id. at 1308. . In Palfy v. Rice, 473 P.2d 606, 613 (Alaska 1970), we stated: An abuse of discretion is established where it appears that the trial court's determination as to attorney's fees was manifestly unreasonable. (footnote omitted). The same standard was applied in DeWitt v. Liberty Leasing Company of Alaska, 499 P.2d 599, 601 n. 6 (Alaska 1972). .Cooper v. Carlson, 511 P.2d 1305, 1309 (Alaska 1973). See DeWitt v. Liberty Leasing Company of Alaska, supra at 602 n. 13. .Rule 82(a) states: (a) Allowance to Prevailing Party as Costs. (1)Unless the court, in its discretion, otherwise directs, the following schedule of attorney's fees will be adhered to in fixing such fees for the party recovering any money judgment therein, as part of the costs of the action allowed by law: ATTORNEY'S FEES IN AVERAGE CASES Should no recovery be had, attorney's fees for the prevailing party may be fixed by the court as a part of the costs of the action, in its discretion, in a reasonable amount. (2) In actions where the money judgment is not an accurate criteria for determining the fee to be allowed to the prevailing side, the court shall award a fee commensurate with the amount and value of legal services rendered. (3) The allowance of attorney's fees by the court in conformance with the foregoing schedule is not to be construed as fixing the fees between attorney and client. . DeWitt v. Liberty Leasing Company of Alaska, 499 P.2d 599, 601 (Alaska 1972). . Palfy v. Rice, 473 P.2d 606, 613 (Alaska 1970). . See Preferred General Agency of Alaska, Inc. v. Raffetto, 391 P.2d 951, 954 (Alaska 1964). . Fairbanks Builders, Inc. v. Sandstrom Plumbing & Heating, 555 P.2d 964, 966-67 (Alaska 1976). . See Patrick v. Sedwick, 413 P.2d 169, 179 (Alaska 1966); Fairbanks Builders, supra at 968.

10465502

Paul M. VOZAR and Sandra J. Vozar, Appellants, v. Richard FRANCIS and Kay Francis, Appellees

Vozar v. Francis

1978-05-26

No. 3173

1056

1062

579 P.2d 1056

579

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:54:24.577259+00:00

CAP

Before BOÓCHEVER, C. J., CONNOR, BURKE and MATTHEWS, JJ., and DIMOND, J. Pro Tem.

Paul M. VOZAR and Sandra J. Vozar, Appellants, v. Richard FRANCIS and Kay Francis, Appellees.

Paul M. VOZAR and Sandra J. Vozar, Appellants, v. Richard FRANCIS and Kay Francis, Appellees. No. 3173. Supreme Court of Alaska. May 26, 1978. Helen L. Simpson, Anchorage, for appellants. Edward L. Garnett, Kenai, for appellees. Before BOÓCHEVER, C. J., CONNOR, BURKE and MATTHEWS, JJ., and DIMOND, J. Pro Tem.

3917

23291

OPINION DIMOND, Justice Pro Tem. Paul and Sandra Vozar, the plaintiffs in the Superior Court, and Richard and Kay Francis, the defendants, executed a document called an "Option to Purchase Agreement." Under its terms, plaintiffs agreed to rent to defendants a certain lot with a house on it in or near Kenai, Alaska, with an option to purchase the property. Payment "of the said property" was to be $250.00 a month including interest at nine percent per annum. The agreement provided that if defendants "abides [sic] by the State of Alaska Uniform Residential Landlord and Tenant Act and desires in either his name or his wifes [sic] name by June 30, 1975 he may request to Owners (plaintiffs) to exercise this Option . . . " The defendants were to pay all taxes after 1974. Neither party was to allow any encumbrance, such as material, labor or mechanics liens or mortgages, "to encumber the said property at any time." The plaintiffs were to "give Optionee (defendants) a clear title to said property when paid off in full if Optionee elects to exercise this option." Paragraph 4 of the agreement provided: POSSESSION: Optionee shall, upon execution hereof have the right to enter into possession and use of said property and shall be required to make all repairs and necessary improvements to put and keep premises in a fit and habitable condition, to provide and maintain appropriate receptacles and conveniences for the removal of ashes, garbage, rubbish, and other waste incidental to the occupancy of the dwelling unit and arrange for their removal, and shall be restricted to no more than 2 pets on the premises which shall be tied or confined in some manner within none days of this agreement. It was further provided that defendants could not sublease or rent the property without the written consent of the plaintiffs. On or about May 9, 1975, the defendants received a letter from an attorney representing the plaintiffs. The letter was entitled "Notice of Noncompliance With Rental Agreement and Revocation of Option to Purchase." In this document, the defendants were advised that they were in violation of certain terms of the option to purchase agreement. In addition, the defendants were advised that they were in breach of the Alaska Uniform Residential Landlord and Tenant Act by (1) subletting or assigning the premises to another without the plaintiffs' consent and (2) permitting waste, rubbish, vehicles and debris to accumulate and remain on the premises. Finally, the letter stated that "notice is hereby given that twenty (20) days from receipt of this notice your tenancy will terminate unless within 10 days from the date of this notice you cure all breaches." On June 3,1975, plaintiffs commenced an action against defendants by filing a complaint for forcible entry and detainer. The principal relief sought by this action was to require defendants to restore the property to the plaintiffs. The defendants filed an answer and counterclaim. They alleged that they had exercised their option to purchase and requested that plaintiffs be required to convey the premises to them. Following a trial, the superior court found that the option agreement was a rental agreement with an option to purchase, that the defendants had exercised their option by simply telling the plaintiffs they wished to have the property put in their names, and that defendants were entitled to judgment for specific performance. The judgment required plaintiffs to convey the property to defendants and required the defendants to deliver to plaintiffs a promissory note, secured by a deed of trust, in the amount of $16,996.05 with interest at the rate of nine percent per annum, to be paid in monthly installments of $250.00 including interest. Plaintiffs have appealed from that judgment. Plaintiffs contend that if defendants had attempted to exercise their option to purchase the property, the attempt was unsuccessful because they had not abided by the Uniform Residential Landlord and Tenant Act as required by the option to purchase agreement. Plaintiffs refer specifically to the provisions of the Act requiring the tenant to pay the rent on time, to keep the premises in a good and orderly manner, and to not sublet the premises without the landlord's consent. It is true that from time to time in the latter part of 1974 and early in 1975 the defendants were behind in their monthly rental payments of $250.00. But when plaintiffs served defendants with a "Notice of Noncompliance With Rental Agreement and Revocation of Option to Purchase," on May 11, 1975, the failure to make the monthly payments on time was not mentioned as one of the breaches for which termination of the tenancy was sought. In addition, the record does not indicate that defendants were then in arrears as to their rental payments and, in fact, shows that the plaintiffs acknowledged receipt of the sum of $250.00 from defendants on May 6, 1975, shortly before the notice was given. It is fair to gather from this that the failure to pay the rent on time was not a factor which would prevent defendants from exercising their option to purchase. As to the allegation that the defendants sublet the premises without the plaintiffs' consent, there is no evidence that this occurred. Defendants did permit some people with a house trailer to reside on the premises for about three months, but did not charge any rent. This was not an act of subletting the premises. The last alleged breach of the Uniform Residential Landlord and Tenant Act was that defendants had failed to comply with AS 34.03.120 by not keeping the premises clean and by allowing waste, rubbish, and debris to accumulate and remain on the property. There was evidence that defendants were at fault in this regard. But there was also evidence that defendants burned up all debris and cleaned up the premises in the spring of 1975. Plaintiffs' counsel tried to establish the day as May 16, 1975. If that was the date the premises were cleaned up, then since defendants remedied the breach within ten days from the date they were served with notice on May 11, 1975, the rental agreement could not be terminated for that reason. In their notice to defendants of the termination of the rental agreement, plaintiffs also asserted that defendants had breached the agreement in other respects. Regarding the lien of Kraxberger for well drilling, the record shows that the lien was released within the ten-day period given to defendants by plaintiffs' counsel for curing breaches of the agreement. As to the pets on the premises, Francis testified that Mrs. Vozar knew that there were more than two dogs but said nothing to him about violating the terms of the agreement. In any event, this was not such a substantial breach as would justify disregarding the option. Finally as to the other alleged breaches mentioned in note 7, more of them fall within the tenants' obligation under the Uniform Act. In order to exercise their option to purchase, the agreement required only that defendants abide by the Act and "request" the plaintiffs "to exercise their option" by June 30, 1975. There was no condition imposed as to defendants' abiding by any other rule of conduct in order to exercise their option. This brings us to the question of whether the notice of the option to purchase was given as required by the agreement. The pertinent part of that document states: . If Optionee abides by the State of Alaska Uniform Residential Landlord and Tenant Act and desires in either his name or his wifes [sic] name by June 30, 1975 he may request to Owners to exercise this Option and receive the Two Hundred Fifty Dollars a month paid into Owners at that time to apply in full towards the purchase price of Twenty Thousand Dollars ($20,000.00) at Nine (9) Percent Interest per Annum upon the outstanding balance from the date of execution hereof. . . • . The agreement does not require that the notice to exercise the option to purchase be in writing. In the absence of such an express requirement, an option may be exercised verbally or by any other meth od indicated in the optionor's election to avail himself of the option. That was done in this case. On a number of occasions, defendants requested that the title to the property be placed in their names which is what the agreement indicates was the manner of exercising the option. In addition, on February 4, 1975, defendants' counsel wrote to plaintiffs stating that defendants had previously exercised their option to purchase. The agreement does indicate that the exercise of the option to purchase may have been conditioned upon the defendants abiding by the Uniform Residential Landlord and Tenant Act. At times, defendants were in default in this respect. But there is nothing in the agreement providing that a notice to exercise the option given prior to the defendants' curing the breaches under the Act would not be effective after the breaches were remedied, without further notice to exercise the option. In the absence of such an express requirement, it may have been the understanding of the parties that after curing breaches under the Act, notices by defendants to exercise their option, previously given on numerous occasions, would then become effective. We adopt this view because the agreement is not clear in this respect and should be construed most strongly against the party by whom the agreement was prepared, i. e., the plaintiffs. The court entered a judgment requiring plaintiffs to convey the property to defendants by a good and sufficient deed. Defendants were required to execute and deliver to the plaintiffs a promissory note, secured by a deed of trust, in the sum of $16,996.05, with interest at the rate of nine percent a year. Plaintiffs contend that this disposition of the dispute was erroneous, and that defendants ought to have been required to make one payment to plaintiffs of the entire $16,996.05, plus interest, in exchange for a conveyance of the property by plaintiffs to the defendants. In relevant part, the option to purchase agreement provides: . The Payment of the said property shall be Two Hundred Fifty Dollars and no cents ($250.00) per month . If Optionee abides by the State of Alaska Uniform Residential Landlord and Tenant Act and desires in either his name or his wifes [sic] name by June 30, 1975 he may request to Owners to exercise this Option and receive the Two Hundred Fifty Dollars a month paid into Owners at that time to apply in full towards the purchase price of Twenty Thousand Dollars ($20,000.00) at Nine (9) Percent Interest per Annum upon the outstanding balance from the date of execution hereof. Owners will give Optionee a clear title to said property when paid off in full if Optionee elects to exercise this option. Monthly payments to be due and payable in legal tender and mailed or delivered to owner at 3110 West Northern Lights, Apt. 3, Anchorage, Alaska 99503 by the fifteenth of each month. It is not clear from this or other provisions of the agreement whether it-was intended that, at the time of exercising the option to purchase, defendants were (1) to get a deed from the plaintiffs and be obligated to pay the balance of the purchase price in monthly increments of $250.00 including interest or (2) to pay the entire balance of the purchase price in one payment in cash at that time. Since the agreement is ambiguous in this respect, resort must be had to extrinsic evidence to ascertain, if possible, the reasonable expectations of the parties. Originally, when defendants expressed an interest in purchasing the property, plaintiff Sandra Vozar drew up and submitted to defendants a form of "purchase agreement" in August 1974. This document provided for the sale of the property by plaintiffs and the purchase by defendants. The purchase price was $20,000.00. Provision was made for the defendants (buyers) to pay the purchase price at the rate of $250.00 a month, including nine percent interest, with a "balloon payment" of $5,000.00 being due by December 31, 1977. Plaintiff Sandra Vozar testified that this agreement called for a three-year payoff. This agreement was never executed by the parties. Instead, the option to purchase agreement was prepared and executed. The reason for this was that defendant, Richard Francis, was in arrears in support payments due his former wife and children and had other debts to pay. The defendants were afraid that if the property were put in their names, the former Mrs. Francis could "get the property." They therefore agreed with the plaintiffs on the option to purchase agreement, which is the subject of this dispute. It was believed that defendants could fix up and improve the property and sell it by June 30,1975, the last date set in the option agreement for exercise of the option and then have enough money to pay their debts — particularly the support payments owed by Richard Francis to his former wife. The plaintiffs cooperated in this plan of defendants by offering, on a number of occasions, to list the property and attempt to sell it on behalf of defendants. It seems reasonably clear that defendants wished to sell the property before the $20,-000.00 purchase price was paid in installments of $250.00. Early in 1975, defendants had entered into a contractual agreement to sell the property by executing an earnest money agreement and receiving $400.00 from a proposed purchaser. In addition, they had entered into a real estate broker's employment contract on February 20, 1975. In fashioning a decree to establish what he thought was the reasonable expectations of the parties, the trial judge chose to specifically enforce the contract on an installment basis. He required plaintiffs to convey the property to defendants by the execution and delivery of a deed to the property. In turn, defendants were to execute and deliver to plaintiffs a promissory note for the balance due on the purchase price and, as security for the note, a deed of trust. Payments of the balance of the purchase price were to be made at the rate of $250.00 a month, which included interest at 9 percent per annum. We believe that the major uncertainty in this case is whether, once the option was exercised by defendants, the purchase price was to be paid in cash or in monthly installments. Considering the entire record and the dealings between the parties, we believe it is appropriate to allow specific performance but on a cash basis rather than on an installment basis. In RegO v. Decker, 482 P.2d 834, 840 n. 19 (Alaska 1971), we quoted from Corbin on Contracts as follows: If the only uncertainty is as to the period of credit to be allowed, the right to interest not being involved, the vendee may surmount the difficulty and entitle himself to specific performance by asking no credit whatever and offering to pay the whole amount in cash. Corbin, Contracts § 1174, at 284-85 (1964). We believe it would be a fair solution to the problem present in this ease to require defendants, as a condition of obtaining specific performance of the agreement, to pay the balance of the purchase price in cash or else be in default under the deed of trust. This requirement will be an incentive for defendants to either sell the property or, in some other fashion, to secure the necessary funds to pay off the deed of trust and thus be in a position to pay the arrearages and support payments owed by Richard Francis to his former wife and to pay other debts that defendants said they owed. We believe it would be fair to require defendants to make the cash payment for the balance of the purchase price within 60 days from the mandate of this court. This case is remanded to the superior court for modification of the judgment in accordance with the views set forth in this opinion. As so modified, the judgment is AFFIRMED. RABINO WITZ, J., not participating. . The agreement provides in part: . . . If Optionee abides by the State of Alaska Uniform Residential Landlord and Tenant Act and desires in either his name or his wifes [sic] name by June 30, 1975 he may request to Owners to exercise this Option and receive the Two Hundred Fifty Dollars a month paid into Owners at that time to apply in full towards the purchase price of Twenty Thousand Dollars ($20,000.00) at Nine (9) Percent Interest per Annum upon the outstanding balance from the date of execution hereof. . . AS 34.03.020(c) provides in part: Rent shall be payable without demand or notice at the time and place agreed upon by the parties. . . . . AS 34.03.120 provides in relevant part: The tenant shall (1) keep that part of the premises that he occupies and uses as clean and safe as the condition of the premises permit; (2) dispose from his dwelling unit all ashes, rubbish, garbage, and other waste in a clean and safe manner; . . AS 34.03.060(a) provides: Unless otherwise agreed in writing, the tenant may not sublet his premises or assign the rental agreement to another without the landlord's consent. . AS 34.03.220 provides in subsection (b): If rent is unpaid when due and the tenant fails to pay rent within 10 days after written notice by the landlord of nonpayment and his intention to terminate the rental agreement if the rent is not paid within that period of time, the tenancy terminates unless the landlord agrees to allow the tenant to remain in occupancy, and the landlord may terminate the rental agreement and immediately recover possession of the rental unit; only one written notice of default need be given the tenant by the landlord as to any one default. . Plaintiffs' counsel notified defendants that their tenancy would terminate in 20 days from the date of the receipt of the notice (May 9, 1975) unless they cured all breaches within ten days "from the date of this notice." This latter period should have been ten days after receipt of the notice and not from the date of the notice. This seems clear from AS 34.03.220, which provides: (a) Except as provided in this chapter, if there is a material noncompliance by the tenant with the rental agreement or noncompliance with § 120 of this chapter materially affecting health and safety, the landlord may deliver a written notice to the tenant specifying the acts and omissions constituting the breach and specifying that the rental agreement will terminate upon a date not less than 20 days after receipt of the notice. If the breach is not remedied in 10 days, the rental agreement terminates as provided in the notice subject to the provisions of this section. If the breach is remediable by repairs or the payment of damages or otherwise and the tenant adequately remedies the breach before the date specified in the notice, the rental agreement will not terminate. . . The alleged breaches were as follows: (1)The presence of numerous animals, none of which were tied, restrained or confined', on the premises in breach of that portion of the agreement which states that the defendants should be restricted to no more than two pets on the premises which shall be tied or confined in some manner. (2) Incurring an indebtedness to Superior Builders Supply, Inc. representing materials purchased from them for installation on, in or about the subject premises in the amount of $1,748.88, which sum may become a court action. (3) Incurring a lien in favor of Frank Krax-berger d/b/a Kraxberger Drilling in the amount of $1,269.37 plus costs and interest existing as of May 6, 1975. (4) Entering into a contractural agreement for sale of the premises with a realtor thereby creating a possible encumbrance and court action. (5) Contracting with a third party for installation of cabinets on the premises and the payment and installation of such cabinets. .AS 34.03.130(a) provides in part: A landlord may adopt rules and regulations, which shall be posted prominently on the premises, concerning the tenant's use and occupancy of the premises. . . Kuhn v. Hamilton, 117 N.W.2d 81, 83-84 (N.D.1962). . Tsakres v. Owens, 561 P.2d 1218, 1220 n. 2 (Alaska 1977). . This amount apparently represents the original purchase price of $20,000.00, less the total of the monthly payments of $250.00 with interest, made by defendants up to the time of the trial. .Martin v. Maldonado, 572 P.2d 763, 767 (Alaska 1977); Stordahl v. Gov. Employees Ins. Co., 564 P.2d 63, 65-66 (Alaska 1977); Wes- sells v. State, 562 P.2d 1042, 1052 n. 39 (Alaska 1977). See Tsakres v. Owens, 561 P.2d 1218, 1223 (Alaska 1977) (concurring opinion of Chief Justice Boochever, joined by Justice Ra-binowitz). . Plaintiffs were real estate agents and brokers.

10465708

ALASKA PUBLIC UTILITIES COMMISSION, Appellant, v. MUNICIPALITY OF ANCHORAGE, d/b/a Anchorage Telephone Utility, Appellee

Alaska Public Utilities Commission v. Municipality of Anchorage

1978-06-09

No. 2934

1071

1074

579 P.2d 1071

579

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:54:24.577259+00:00

CAP

Before BOOCHEVER, Chief Justice, and RABINO WITZ, CONNOR, BURKE and MATTHEWS, Justices.

ALASKA PUBLIC UTILITIES COMMISSION, Appellant, v. MUNICIPALITY OF ANCHORAGE, d/b/a Anchorage Telephone Utility, Appellee.

ALASKA PUBLIC UTILITIES COMMISSION, Appellant, v. MUNICIPALITY OF ANCHORAGE, d/b/a Anchorage Telephone Utility, Appellee. No. 2934. Supreme Court of Alaska. June 9, 1978. Jeffrey B. Lowenfels, Asst. Atty. Gen., Anchorage, Avrum M. Gross, Atty. Gen., Juneau, for appellant. Roger R. Kemppel, Kemppel and Huffman, Anchorage, for appellee. Before BOOCHEVER, Chief Justice, and RABINO WITZ, CONNOR, BURKE and MATTHEWS, Justices.

1869

11623

OPINION BURKE, Justice. In this case, the Alaska Public Utilities Commission (hereinafter the Commission) appeals an order of the superior court regarding an interim rate increase requested by the Municipality of Anchorage d/b/a Anchorage Telephone Utility (hereinafter ATU). On December 4,1975, ATU filed with the Commission an application requesting both a permanent rate increase and an interim increase. The Commission suspended the request for a permanent increase but ordered that a hearing be held on February 10, 1976, with regard to an interim rate increase. On March 15,1976, following this hearing, the Commission issued Order No. 4 granting a partial rate increase for additional revenues in the amount of $1,127,032. However, in arriving at this figure, the Commission refused to grant a further revenue increase of $1,290,088 to meet ATU's "interfund expenses." It is this refusal which is the subject of this appeal. Interfund expenses are those charges made to ATU by the Municipality of Anchorage for certain common services provided by the Municipality to all municipally-owned utilities. These services include data processing, administration records management, legal assistance, financial control and auditing, and utility customer services including customer billing, customer mailings, new customer applications, and collections. Each utility pays interfund charges to the General Fund based on its pro rata use of the services provided by the Municipality. In Order No. 4, the Commission acknowledged that interfund charges were a justifiable expense of ATU. The basis for its refusal to recognize these as valid expenses was that it felt that ATU had presented insufficient evidence at the February 10 hearing concerning the specific amounts and allocations of these expenses to meet its burden of proof under AS 42.05.511(c). The Commission concluded that there was "not sufficient proof that the interfund charges allocated to various expense categories of ATU properly represent the true expenses that should be borne by ratepayers of ATU." However, the Commission stated that it would allow these expenses upon a proper showing of proof. On March 25, 1976, ATU brought a complaint for injunctive relief against the Commission and the individual commissioners in superior court. The utility alleged that it was in fact incurring interfund expenses and that the defendant's refusal to consider these expenses as valid during the interim period constituted an unconstitutional confiscation of ATU's property. ATU further alleged that if the Commission's order were allowed to stand, that ATU would suffer irreparable harm because it could not later recover its losses from the rate-payers. Finally, ATU asserted that the court could protect the utility's customers by ordering that ATU refund to its customers any portion of the increase eventually determined unjustifiable. On March 30, 1976, the superior court entered a Memorandum of Decision and Order. Applying the standards set forth in Alaska Pub. Util. Comm. v. Greater Anchorage Area Borough, 534 P.2d 549 (Alaska 1975), the court stated that it was convinced that ATU was entitled to the requested preliminary injunction. The court was concerned, however, with ATU's failure to adequately justify its claimed inter-fund expenses. Accordingly, the court remanded the case to the Commission for a determination as to whether there was a reasonable probability that ATU's projected interfund expenses would become part of its final rate base or in the alternative, whether ATU was entitled to only part of these expenses. Upon remand, the Commission found that there was a reasonable probability that the requested interfund expenses would be included in the final revenue determination of ATU. The Commission then ordered that an additional interim increase in the amount of $1,290,088 be allowed to go into effect. The Commission further ordered, pursuant to AS 42.05.421(c), that ATU put any amounts thus received into an escrow account at a reasonable rate of interest. The Commission gave two reasons for the escrow requirement: (1) that it was likely that ATU would eventually have to give some sort of refund once a permanent rate was established, and (2) that the Commission did not wish utilities to make groundless filings for interim rate increases fully expecting to have to refund some of those increases but nevertheless having the advantage of additional cash in the intervening time. Following entry of the Commission's order, the parties returned to the superior court. At that time, the court granted ATU what appears to be a permanent injunction, making the increase retroactive to April 1, 1976. The court overruled the Commission's order that the additional revenues be put into an escrow account, however, and instead simply ordered that should a refund become necessary, ATU would be required to refund these amounts with interest at the rate of 8% per annum. The Commission has raised two issues on appeal. First, it challenges the superior court's granting of the interim rate increase and its failure to require that ATU meet its statutory burden of proof under AS 42.05.-511(c). Second, the Commission asserts that the superior court erred in overruling the Commission's order that the additional revenues be placed in an escrow account. With regard to the Commission's first contention, we do not feel that it is appropriate for us to rule on this issue for the reason that the Commission is appealing its own order. After determining that ATU was entitled to an injunction under Alaska Pub. Util. Comm. v. Greater Anchorage Area Borough, the superior court remanded the case to the Commission for a determination as to whether there was a reasonable probability that ATU's inter-fund expenses would be included in its final rate base. Upon remand, in an order dated April 9, 1976, the Commission not only found that there was such a reasonable probability but also ordered that the additional interim rate increase be allowed to go into effect. The superior court accepted the Commission's order and itself then ordered that the increase be retroactive to April 1, 1976. As these facts indicate, it was the Commission that ordered the rate increase to go into effect and the superior court merely accepted that order, adding only that it be retroactive to 9 days prior to the Commission's order. Although the court might have ordered all or part of the rate increase had the- Commission not done so, the fact remains that the Commission itself ordered the increase. In our opinion, it would violate implicit concepts of appellate review if we were to rule on the Com mission's challenge to its own order. Accordingly, we decline to review the validity of the interim rate increase. The Commission also contends that the superior court erred in overruling the Commission's order that the additional interim funds collected by ATU be placed in an escrow account pending the final rate determination. The Commission had established this requirement pursuant to AS 42.-05.421(c), which provides: In the case of a proposed increased rate, the commission may by order require the interested public utility or utilities to place in escrow in a financial institution approved by the commission and keep accurate account of all amounts received by reason of the increase, specifying by whom and in whose behalf the amounts are paid. Upon completion of the hearing and decision the commission may by order require the public utility to refund to the persons in whose behalf the amounts were paid, that portion of the increased rates which was found to be unreasonable and unlawful. No funds shall be released from escrow without the commission's prior written consent and the escrow agent shall be so instructed by the utility, in writing, with a copy to the commission. The utility may, at its expense, substitute a bond in lieu of the escrow requirement. The superior court overruled the Commission's order because it felt that requiring a bond or escrow account would serve no useful purpose and that ATU had sufficient funds upon which to draw in the event a refund was necessary. We hold that it was error for the superior court to dispense with the Commission's order that ATU place the funds received pursuant to the interim increase in an escrow account. AS 42.05.421(c) specifically authorizes the Commission to take the action it did. Absent a showing that the Commission abused its discretion, we do not believe that the superior court was justified in substituting its own judgment for that of the Commission. AFFIRMED in part and REVERSED in part. . AS 42.05.511(c) provides: In a rate proceeding the utility involved has the burden of proving that any written or unwritten contract or arrangement it may have with any of its affiliated interests for the furnishing of any services or for the purchase, sale, lease or exchange of any property is necessary and consistent with the public interest and that the payment made therefor, or consideration given, is reasonably based, in part, upon the submission of satisfactory proof as to the cost to the affiliated interest of furnishing the service or property and, in part, upon the estimated cost the utility would have incurred if it furnished the service or property with its own personnel and capital. In a previous order, the Commission had specifically informed ATU that the Commission was very concerned with the matter of ATU's interfund expenses and that ATU should be prepared to present proper and complete evidence regarding these expenses at the February 10 hearing. . In reaching our decision we have also considered AS 09.35.080(6), which makes "all property of a public or municipal corporation" exempt from execution.

10456055

Kenneth P. GOULD, Appellant, v. STATE of Alaska, Appellee

Gould v. State

1978-06-02

No. 3261

535

541

579 P.2d 535

579

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:54:24.577259+00:00

CAP

Before BOOCHEVER, Chief Justice, and RABINO WITZ, CONNOR, BURKE and MATTHEWS, Justices.

Kenneth P. GOULD, Appellant, v. STATE of Alaska, Appellee.

Kenneth P. GOULD, Appellant, v. STATE of Alaska, Appellee. No. 3261. Supreme Court of Alaska. June 2, 1978. F. P. Pettyjohn, Pettyjohn & Pestinger, Anchorage, for appellant. John Scukanec, David J. Walsh, Asst. Dist. Attys., Joseph D. Balfe, Dist. Atty., Anchorage, and Avrum M. Gross, Atty. Gen., Juneau, for appellee. Before BOOCHEVER, Chief Justice, and RABINO WITZ, CONNOR, BURKE and MATTHEWS, Justices.

3837

23072

OPINION RABINO WITZ, Justice. Appellant, Kenneth P. Gould, was found guilty after trial by jury of armed robbery in violation of AS 11.15.240 and was sentenced to a term of imprisonment for 12 years. We have concluded that Gould's conviction must be set aside, and the case remanded for a new trial. On April 24, 1976, at approximately 1:00 p.m., Dixie Gipe was working as a sales clerk in the Phase I clothing store located in Anchorage, Alaska. A white male entered and Ms. Gipe asked if she could help him. After he was shown to a display of Levi jackets, he approached the cashier's counter, placed a piece of clothing over his arm, exhibited what appeared to be the barrel of a gun and demanded she open the register. Her supervisor, Vera Grimes, sensing something amiss came to the register and told the robber to take all the money and leave. The robber then left with approximately $550 in currency. Officer Marsters of the Anchorage Police Department responded to a call from the store, talked with Grimes, Gipe and Peggy Letts, another employee, and broadcast a description of the robber as an adult white male, 68 inches in height, slim, long black curly hair with a mous-tache, dark black suede jacket with a Harley-Davidson emblem on the back and motorcycle boots. Officer Stambaugh of the Anchorage Police Department came on duty at 4:00 p.m. and became aware of the robbery and the robber's description. Suspecting Gould, he put together a collection of five mug shots from the department's files and combined them in a photographic lineup with a picture of Gould taken from his driver's license. Officer Stambaugh then proceeded to the store where the lineup was shown to Ms. Grimes who identified Gould as the robber. Ms. Letts was also shown the lineup and stated that the picture of Gould most resembled the robber but that she could not positively identify him. Two days later, Officer Otte of the Anchorage Police Department showed the lineup to Ms. Gipe, who also identified Gould as the perpetrator of the robbery. On April 30th, Officer Walker of the Anchorage Police Department observed Gould at approximately 14th and Fairbanks Avenues in Anchorage. He stopped Gould and arrested him. Gould was wearing jeans and a Levi jacket with a Harley-Davidson emblem on the back. Later that day, Gould was interrogated by Officer Otte. During the course of this interrogation, Gould stated he had a $300 a day heroin habit, "hustled" for his funds, and lived with a woman who had applied for welfare. At the time, Officer Otte observed needle marks on Gould's arms. On May 5th, a corporeal in-custody lineup was held and Dixie Gipe identified Gould as the robber. Subsequently, Gould filed motions to suppress all evidence relating to the photographic lineup and all evidence relating to the corporeal lineup. The motions were denied. Thereafter, Gould's counsel filed a petition for review seeking review of the superior court's denial of the suppression motions. In its answering brief, the state stipulated that it would not use evidence of the in-custody corporeal lineup since Gould's attorney had not been present. After trial had commenced, Gould moved for a protective order to prevent the prosecution from introducing the statements made by Gould to Officer Otte relating to Gould's lifestyle and heroin addiction. The prosecution stipulated to the order but reserved the right to reopen the issue if it determined it desired to use this evidence. Prior to the conclusion of its case-in-chief, the prosecution decided to introduce evi dence of Gould's heroin addiction and lifestyle. After extensive argument out of the presence of the jury and over defense counsel's objection, the superior court ruled the evidence admissible. Officer Otte was then called and testified to the statements Gould had made to him at the time of his arrest. More particularly, Officer Otte related that Gould had stated he had a $300 a day heroin addiction, that he was not working, that he "hustled" for money and that he was living with Barbara Wineck, who had applied for welfare. Officer Otte further testified that at the time he interrogated Gould he observed what appeared to be fresh needle marks and scar tissue on the underside of Gould's forearms. In final argument, the prosecutor alluded to Officer Otte's testimony concerning Gould's lifestyle, heroin habit and lack of funds. The prosecution argued that these factors established a motive for the robbery. In his first specification of error, Gould asserts that the superior court erred in admitting the testimony concerning the pretrial photographic identifications, contending the photographic lineup employed by the police was so impermissibly suggestive as to violate constitutional standards of due process. In Buchanan v. State, 561 P.2d 1197, 1204 (Alaska 1977), we held that "[a] procedure is unfair which suggests in advance of identification by the witness the identity of the person suspected by the police." In Buchanan, since three of the six photographs used in the lineup matched the victim's description of the assailant, we concluded "that the photographic lineup was not so suggestive as to create 'a very substantial likelihood of irreparable misidenti-fication.' " Id. at 1205. Similarly, in Noble v. State, 552 P.2d 142, 146 (Alaska 1976), we stated that although Noble had the longest hair of the six men portrayed in a photographic lineup and the police knew that the victim had emphasized his assailant's long hair, "the photos [did] not depict men so different in appearance that Noble's picture [could] be said to be truly distinctive among the six." (footnote omitted) In holding that the photographic lineup in Noble was not so suggestive as to create a substantial likelihood of irreparable mis-identification, we noted that the lineup was conducted while the incident was still fresh in the mind of the victim and that he "had ample opportunity at the time of the crime to observe the features and physiognomy of his assailant." Id. Our examination of the photographs used in the case at bar to make up the questioned photographic lineup has convinced us that it was not so suggestive as to create "a very substantial likelihood of irreparable misidentification." The description given the police by the witnesses to the robbery matches at least three of the persons depicted in the photographic lineup. We also deem it of significance that the prosecution witnesses had ample opportunity to observe the robber during the time he was on the premises of the Phase I clothing store. Gould's next specification of error concerns the admissibility of evidence of his heroin addiction introduced by the state in an attempt to show a motive for the robbery. Gould contends that the evidence was more prejudicial than probative and amounts to reversible error. This court previously has held that a mere association with heroin, "without more," is inadmissible for the purpose of proving motive or intent. Eubanks v. State, 516 P.2d 726, 729 (Alaska 1973). In Eubanks, the state introduced evidence that defendant had purchased heroin from proceeds obtained by pawning items forming the basis for a grand larceny charge. We explained: Purchase of heroin, without more, does not advance the inquiry into the defendant's state of mind when he participated in pawning the items . . . . Drug users may sometimes steal in order to support their habit; people who steal may sometimes be drug users. However, to introduce a possible drug association without more in order to indicate that the defendant must be a thief requires precisely the type of leap of faith the evidence rules have been designed to prevent. Id. We have held evidence of prior narcotics transactions admissible "on the issue of motive for homicide when the accused's prior drug dealings with the deceased were tinged with acrimony and anger." Id., citing Gafford v. State, 440 P.2d 405, 408 (Alaska 1968), cert. denied, 393 U.S. 1120, 89 S.Ct. 996, 22 L.Ed.2d 125 (1969). In Gafford, we stated that "in our view evidence of [the victim's] refusal to assist appellant in disposing of narcotics was relevant to the issue of motive, viz., that appellant was angry or disgusted with [the victim] because of his unequivocal refusal to help in the disposal of narcotics." Id. Other jurisdictions have allowed evidence of drug use or addiction circumstantially to prove motive when the crime charged involved the theft of narcotics. Thus, evidence of drug use or addiction is relevant to motive when there exists some affirmative link between the crime and the use or addiction. On the other hand, "[t]o admit such testimony without showing some affirmative link between the theft and narcotics would show only that the accused is 'a criminal generally.' " Powell v. State, 478 S.W.2d 95, 98 (Tex.Crim.App.1972). In Powell v. State, 478 S.W.2d 95 (Tex.Crim.App.1972), the defendant was convicted of theft. Testimony was admitted at trial of an officer's observance of "needle tracks" on the defendant's arm and that such marks were associated with narcotics addiction. The testimony was admitted to show a motive for the theft. The state contended that " 'a narcotic habit requires money to support it and committing the theft would further appellant's habit.' " Id. at 98. The Texas court held: The chain of inferences is too long and contains too many gaps to allow the introduction of evidence of needle marks alone to show possible motive for theft. The prejudicial effect of such evidence far outweighs any probative value it might have. Id. In the case at bar, there is an absence of any "affirmative link" between the robbery and Gould's alleged heroin addiction. The only possible relevance of this evidence goes to the hotly contested issue of identification. The state's argument for relevance is based on reasoning that because Gould was unemployed and had a $300 a day heroin habit, he had to commit the robbery to support his habit. Like the court in Powell v. State, we find the proffered inference too attenuated and possessing "too many gaps" to show motive and thus the identity of the robber. Since we have concluded that it was error on the superior court's part to admit evidence of his heroin addiction, we must determine whether such error was prejudicial or harmless. Under the harmless error test articulated in Love v. State, we hold that the error in question was prejudicial. Excluding the erroneously admitted evidence as to Gould's heroin addiction, the record indicates that the major witnesses for the prosecution were eye witnesses to the robbery who identified Gould from a photographic lineup compiled by Anchorage police. Gould was subsequently identified at trial by the same witnesses. Four witnesses for the defense testified that Gould had a full beard the day of the robbery and therefore did not match the description given by the identifying witnesses. One of the defense witnesses testified that Gould was with her during the time the robbery occurred. Subsequently, during their deliberations, the jury asked to rehear basically all of the testimony they had heard in the trial. After the court asked the jury to limit its request for replay, the jury asked to hear the testimony of one of the eyewitnesses to the robbery and the testimony of two of the defense witnesses. One of these defense witnesses was the person who had testified that Gould had been with her during the time the robbery occurred. Given the foregoing cleavage in the identification testimony in the record, we cannot say with fair assurance that the erroneous admission of evidence of Gould's heroin addiction did not have a substantial impact on the jury's deliberations. We thus conclude that the superior court's admission of this evidence of heroin addiction, in the particular factual context of this record, was prejudicial error requiring that Gould's conviction be set aside and the matter remanded for a new trial. Reversed and remanded for a new trial. . AS 11.15.240 provides: Robbery. A person who, by force or violence, or by putting in fear, steals and takes anything of value from the person of another is guilty of robbery, and is punishable by imprisonment in the penitentiary for not more than 15 years nor less than one year. . In regard to this questioned evidence, the jury was instructed: Evidence was introduced that the defendant was using heroin on or about April 30, 1976. This evidence may only be considered by you in determining whether the defendant had a motive for robbery. You must not be prejudiced against the defendant because he may have used heroin in April of 1976. . Cf. Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199, 1206 (1967) (footnote in original). . Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247, 1253 (1968) (footnote in original). . In Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401, 411 (1972), the United States Supreme Court, in dealing with a pretrial police station showup, not a photographic lineup, held that it must consider whether under the 'totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). . Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968); Buchanan v. State, 561 P.2d 1197, 1205 (Alaska 1977); Noble v. State, 552 P.2d 146 (Alaska 1976). . We further note that Gould was positively identified from this photographic lineup within five hours to two days after the robbery. . Eubanks v. State, 516 P.2d 726, 729 (Alaska 1973), citing State v. Howell, 3 Or.App. 484, 474 P.2d 778 (1970); Riley v. State, 168 Tex.Cr.R. 417, 328 S.W.2d 306 (1959); People v. Rodis, 145 Cal.App.2d 44, 301 P.2d 886 (1956). . In People v. Bartlett, 256 Cal.App.2d 787, 64 Cal.Rptr. 503, 508-09 (1967), the defendants were tried and found guilty of second degree burglary. At trial, a police officer was permitted to testify at great length, over defense objection, that at the time of defendants' arrest they were under the influence of narcotics. The officer observed the defendants' condition, including needle marks on the inside of their elbows. The officer testified that during the later interview he was of the opinion that the defendants were undergoing heavy withdrawal symptoms. The officer was permitted to testify that in his opinion the defendants had been heavy users of narcotics, with a habit of $25 to $50 a day. The California court, in reversing the convictions, noted that without the evidence of narcotics use or addiction there existed a "reasonable probability that a different verdict would have been reached had the objectionable evidence had been excluded." Id., 64 Cal.Rptr. at 509.' The court held: Such evidence should have been excluded because its tenuous probative value to show motive was far outweighed by its tendency to incite a jury to resolve the issue of guilt or innocence on defendants' character, rather than on the proof of the essential elements of the crime. Id. A similar situation existed in People v. Davis, 233 Cal.App.2d 156, 43 Cal.Rptr. 357 (1965), in which the defendant was convicted of first degree robbery. At trial, the state introduced evidence of defendant's narcotics use in an attempt to prove motive for the robbery. The court there noted that the other evidence adduced at trial turned on the credibility of four witnesses and that [t]he law entitled appellant to stand before the jury presumptively innocent and of good character. In characterizing him as a narcotics user, a charge he was unprepared to meet except by his own denial, the prosecution branded him as a habitual lawbreaker, a loathsome, unworthy person, predisposed to rob or steal to support his habit. Appellant is entitled to have the conflicting evidence reweighed without that kind of handicap. Id., 43 Cal.Rptr. at 361. Two other California cases have found admission of such evidence to be error but not sufficiently prejudicial to require a reversal. In People v. Guiterrez, 152 Cal.App.2d 115, 312 P.2d 291, 295 (1957), the defendant was convicted of attempted burglary. Evidence was allowed that following his arrest the defendant stated he had had a "shot of heroin." The court rejected the view that such evidence was admissible to show motive, but in view of the overwhelming evidence of guilt, the error was held to be non-prejudicial. In People v. Enriquez, 190 Cal.App.2d 481, 11 Cal.Rptr. 889 (1961), cert. denied, 368 U.S. 1002, 82 S.Ct. 634, 7 L.Ed.2d 540 (1962), evidence of narcotics addiction was introduced in a trial where the charge was murder and kidnap with intent to commit robbery. The court held it was error to introduce the evidence; but in view of the abundance of evidence of guilt, the error did not require reversal. . In Kugzruk v. State, 436 P.2d 962, 967 n.20 (Alaska 1968), we quoted Judge Bazelon's statement in Harper v. United States, 99 U.S.App.D.C. 324, 325, 239 F.2d 945, 946 (1956): [T]he rule is that evidence of other offenses is admissible when substantially relevant to the offense charged; inadmissible when its relevance is insignificant; and, in borderline cases, admissible when its relevance outweighs the undue prejudice that may flow from it. [citations omitted] . In Love v. State, 457 P.2d 622, 631 (Alaska 1969), we adopted the standaru for determination of harmless error in non-constitutional issues as follows: "But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand." Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557, 1566-67 (1946). Thus, using the Love standard, we must determine whether the erroneously admitted evidence had a substantial influence on the verdict so as to amount to reversible error. .Barbara Wineck was called by appellant. She testified that on the day of the robbery Gould had a full beard. She further testified that his beard was shaved off on Monday, April 26, two days after the robbery at Phase 1. Laura Cannon, Gould's sister, testified that appellant "always" had had a full beard, and that he had the beard less than a week before he was arrested on April 30, 1976. Lisa Hiler was called for the defense. She testified that Gould had a full beard on Sunday, April 25, and did not have one the following Tuesday, April 27. Charles Dunnagan testified he had an interview with Vera Grimes at which she stated the robber was clean-shaven except for a mous-tache. Elizabeth Payton was called by the defense. She testified that Gould had come to her apartment at approximately 11:00 a.m. on the day of the robbery and that Gould had stayed with her until 3:00 p.m. or 3:30 p.m. on April 24. She testified that appellant had attempted to repair a bicycle for her. She stated Gould had a beard on that day but did not have a beard a few days later. . The jury requested to hear the replay of Gipe's testimony, as well as the testimony of defense witnesses Payton and Cannon. . See note 12, supra. . As Professor Wigmore has succinctly stated: The deep tendency of human nature to punish, not because our victim is guilty this time, but because he is a bad man and may as well be condemned now that he is caught, is a tendency which cannot fail to operate with any jury, in or out of court. I. J. Wigmore, Evidence in Trials at Common Law § 57, at 456. (3d ed. 1940). . In light of the conclusion that a new trial is necessary, we shall not address Gould's claim that the sentence he was given by the superior court was excessive.

10471648

Frederick RICHARDSON, Appellant, v. STATE of Alaska, Appellee

Richardson v. State

1978-06-16

No. 3262

1372

1377

579 P.2d 1372

579

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:54:24.577259+00:00

CAP

Before BOOCHEVER, C. J., and RABI-NOWITZ, CONNOR and BURKE, JJ. and DIMOND, J. Pro Tern.

Frederick RICHARDSON, Appellant, v. STATE of Alaska, Appellee.

Frederick RICHARDSON, Appellant, v. STATE of Alaska, Appellee. No. 3262. Supreme Court of Alaska. June 16, 1978. Mark E. Ashburn, Asst. Public Defender, Fairbanks and Brian Shortell, Public Defender, Anchorage, for appellant. Rhonda F. Butterfield, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks and Avrum M. Gross, Atty. Gen., Juneau, for appellee.

2771

16245

OPINION Before BOOCHEVER, C. J., and RABI-NOWITZ, CONNOR and BURKE, JJ. and DIMOND, J. Pro Tern. DIMOND, Justice Pro Tern. A jury found Frederick Richardson guilty of possession of the narcotic drug heroin. He appeals on a number of different grounds. The case was tried in the Fourth Judicial District in Fairbanks by Judge Ripley, whose official station was in the Third Judicial District in Anchorage. After the case had gone to the jury, Judge Ripley departed for Anchorage. Apparently Judge Van Hoomissen, the presiding judge of the Fourth Judicial District in Fairbanks, was to receive the verdict. After debating for an unknown length of time, the jury foreman gave a note to the bailiff, stating that the jury would like to rehear the recorded testimony of three witnesses. The bailiff telephoned Judge Van Hoomissen sometime after the dinner hour, and he told the bailiff to go ahead and let the jury hear the testimony. An in-court deputy called the judge later and said she had played the tapes for the jury and was going home. The judge was not present when the replay of the tapes was made. Although the bailiff had the telephone numbers of counsel for the state and the defense, no attempt was made to notify them. Neither they nor the defendant were present at the replay of the testimony. It is not entirely clear from the record what particular testimony was played back to the jury, although defense counsel stated that he thought it was the testimony of the state's witnesses Aldridge, Brown, and Thomas. But there is no certainty as to this, and there is nothing to indicate if all or only a portion of a particular witness' testimony was played back to the jury. No recording of the replay proceedings was made in court, so there is no way of ascertaining whether the in-court deputy or the bailiff, or anyone else who might have been present, in anyway communicated with the jury, or whether the jury communicated among themselves or with anyone else at this time. In short, about all we know from the record is that the jury was permitted to hear a replay of a portion of some testimony given at the trial and that neither the judge, the state's attorney, the defense counsel, nor the defendant was present at the time. In the absence of an express waiver by a defendant in a criminal case, we have held that it is constitutional error for a judge to permit the playback of testimony in the defendant's absence. State v. Hannagan, 559 P.2d 1059, 1065 (Alaska 1977). Where such constitutional error exists, as it does here, the judgment of conviction must be reversed unless the court is able to declare that the error is harmless beyond a reasonable doubt. Hannagan, supra. The state must establish beyond a reasonable doubt that such an error "did not contribute to the verdict obtained." Braham v. State, 571 P.2d 631, 645 (Alaska 1977). Except for what we have stated, the record is silent on what transpired when the playback took place. It is not inconceivable that portions of the testimony selected by the jury for rehearing would have placed undue emphasis on the state's case against Richardson, whereas other testimony, not played back, would have had the effect of modifying the impact of what the jury reheard. At least, had the judge, counsel, and defendant been present, Richardson's attorney might have made objections or suggestions that could have affected the judge's discretion in determining what portions of the recorded testimony the jurors should have been permitted to have played back to them. But we need not conjure up possibilities of prejudice to Richardson in these circumstances. Preservation of his fundamental constitutional right to be present when the playback took place "should not depend on the imaginative abilities of appellate judges." R. L. R. v. State, 487 P.2d 27, 43 (Alaska 1971). It was constitutional error to allow the playback of testimony to the jury in Richardson's absence, and the state has not demonstrated that the error was harmless beyond a reasonable doubt. This is enough to require reversal and a new trial. Since there must be a new trial, it is not necessary that we pass upon other points of alleged error raised by Richardson in his brief on appeal. But some of those issues may arise again at a new trial, and thus we believe it appropriate to dispose of them here. The heroin that Richardson was charged with possessing was a brownish colored, powdery substance contained in five small plastic bags, which were enclosed in the larger plastic bag. The heroin had been identified as such by a chemist, had been introduced in evidence as an exhibit at the trial of James Aldridge, and had been placed on the desk of the deputy clerk in the courtroom. Attached to the larger plastic bag was a red evidence tag of the Alaska State Troopers and a white tag used by the court clerk to identify the bag and contents as an exhibit. On February 11, 1976, Richardson was a spectator, along with several other persons, at Aldridge's trial. Another spectator, Wilbert Brown, testified that during a court recess, when the judge, counsel, and the deputy clerk were out of the courtroom. Richardson walked up to the clerk's desk and took the heroin. Brown stated that he stopped Richardson at the door to the courtroom and asked him what he was doing. In response, Richardson showed Brown a plastic bag in which were enclosed small packets containing a brownish substance. Brown remonstrated with Richardson, but Richardson continued out of the courtroom. Later in the day, the deputy clerk discovered that the bag of heroin was missing. This event allegedly occurred between 3:30 and 4:40 p. m. Robert Thomas testified that on the same day and between those same hours, Richardson and a man named Gordon Pascu showed up at Thomas' house. Also present was a woman named Patricia Hawley. Thomas said he saw Richardson in possession of the plastic bag with a brown substance within and a red card attached to the bag and asked Richardson where he got the heroin. Richardson replied that it came from the courthouse. There was testimony that the heroin was used or "shot up" by Thomas, Richardson, and Hawley. A few moments later someone came to the front door of Thomas' house. Thomas testified at the trial that while he was in the front room to answer the door, Pascu, Richardson, and Hawley were in the kitchen. Thomas said that he heard a male voice from the kitchen directing someone to flush the bags and the tags down the toilet. His testimony was as follows: Q [Mr. Ray] Mr. Thomas, I was asking you about the voices that you heard— the words that you heard. Would— relate to us, and specifically the ladies and gentlemen of the jury, what it was that you heard from the kitchen? A Someone said to flush the bags and tags down the toilet . Q And . A . get rid of them. Q . did you hear any toilet being flushed after that? A Yes. Richardson objected to the introduction of this testimony as hearsay, but his objection was overruled. On this appeal, Richardson claims that the admission of the evidence was erroneous and calls for a new trial. In Watson v. State, 387 P.2d 289, 293 (Alaska 1963), we held: Evidence of a statement made other than by a witness who is testifying is excluded as hearsay only when it is offered to establish the truth of the fact stated. Where it is offered without reference to its truth, but for some other relevant purpose, then the hearsay rule does not apply, (footnote omitted) The statement that was made here, other than by the witness Thomas, was this: "[Fjlush the bags down the toilet — get rid of them." This utterance is, of course, an out-of-court statement made by someone other than Thomas, the witness testifying. The question is whether its value depends on the truth of the statement or the credibility of the person who made it. The statement made was a directive from one person to another to perform an act. As such, the statement, taken literally, is not susceptible of being characterized as being a true statement or a false one and thus could not, as such, be offered to "establish the truth of the facts stated." (emphasis added) Watson v. State, supra. But there is a clear inference from the statement and that is that the bags and tags referred to were likely to be the same ones Richardson had taken from the clerk's desk in the courtroom. This inference, being one of fact, is capable of being considered a true or false statement and was undoubtedly offered by the prosecution to establish its truth. Thus, its value depended upon its truth and in turn, upon the credibility of the person (not identified) who made it. The statement made was hearsay. Generally speaking, the rule is that hearsay is not admissible in evidence. But there are numerous exceptions to that rule. One that is pertinent here is what is termed as the "Present Sense Impression," i. e., "A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." See Federal Rules of Evidence, 803(1), which is identical to Alaska's proposed Rule of Evidence, 803(a). The statement we are concerned with falls within that exception. The directive to dispose of the bags and tags was given by someone in the kitchen immediately after he or she had perceived the event, i. e., had heard the knock on the door. As stated by the Advisory Committee to the Federal Rules of Evidence, the underlying theory of this exception to the rule excluding hearsay "is that substantial contemporaneity of event and statement negative the likelihood of deliberate or conscious misrepresentation." This exception to the hearsay rule fits the situation we are dealing with in this ease, and therefore, the statement was properly admitted into evidence. The prosecuting attorney was Mr. Ray. After it was discovered that the heroin was missing, Ray made a statement to the police regarding the persons he had seen in or about the courtroom on the day the heroin was taken. One week prior to the beginning of Richardson's trial, Richardson subpoenaed Ray as a witness. The court granted the state a protective order under which Ray would not have to testify since he was prosecuting the case, and the only other person available to prosecute was at Barrow, Alaska. In lieu of his testimony, there was read to the jury a statement, taken from the police report, as to whom Ray had seen in or about the courtroom, but this statement did not mention Ray by name. This has been referred to as a "stipulation" between the state and defense counsel, although it is not clear from the record that Richardson's counsel had really agreed to its content. Richardson claims on this appeal that it was an abuse of discretion on the part of the trial judge to not require Ray to appear as a witness under the subpoena Richardson had served upon him. We need not enter into a discussion as to the propriety of the court's ruling. Since there must be a new trial, there will be sufficient time for Richardson to subpoena Mr. Ray as a witness, with some other person from the District Attorney's Office designated to prosecute the action. Gordon Pascu, who had been a spectator in the courtroom during the Aldridge trial and had also been at Thomas' house when Richardson was there with the heroin, testified before the grand jury when the charge against Richardson was being considered. Pascu denied that he had seen Richardson take the heroin and denied that he had been at the Thomas house that night. Pascu was subsequently indicted for perjury. At the time of Richardson's trial, it was clear that Pascu would invoke his constitutional privilege against self-incrimination in any area covered by his grand jury testimony, and for that reason the court ruled at Richardson's trial that Pascu would be unavailable as a witness. Richardson's request that Pascu's grand jury testimony be read to the jury was denied. Richardson claims reversible error on the ground that he was denied his constitutional rights to be confronted with the witnesses against him and to have compulsory process for obtaining witnesses in his favor. We need not decide this point. The perjury indictment against Pascu was dismissed a couple of months following Richardson's trial. We do not know whether Pascu would still wish to invoke the privilege against self-incrimination at Richardson's new trial. If he does, we believe it should be left for the determination of the trial court whether the privilege would still exist. At the close of Richardson's trial, he requested the court to give the following instruction regarding Gordon Pascu: This court has ruled that one witness, Gordy Pascu, is unavailable to testify in this trial. Mr. Pascu is unavailable because he would take the Fifth Amendment as to any questions about the events at issue in this case. Mr. Pascu would take the Fifth Amendment, on the advice of his attorney, because he has been indicted on two counts of perjury. Those charges are based on Mr. Pascu's testimony to the Grand Jury in the case of State v. Richardson, the cause presently at trial before you. The trial court refused to give the instruction, and Richardson claims this was error. We need not decide this point because at a new trial of Richardson the instruction would be inappropriate in light of the dismissal of the perjury indictment against Pascu. Richardson requested from the court a protective order which would have prohibited the prosecuting attorney from impeaching Richardson by presenting evidence that he had been convicted of petty larceny (shoplifting) in 1974. The request was denied, and Richardson contends that this ruling was error. He argues that impeachment of a defendant by a prior conviction violates due process, and that petty larceny is not a crime involving dishonesty or false statement, within the meaning of Criminal Rule 26(f)(1). The same arguments were made and decided adversely to Richardson's contentions in our recent decision in Lowell v. State, 574 P.2d 1281 (Alaska 1978). In that decision we held that impeachment of a defendant by a prior conviction does not deny the defendant due process of law, and that larceny is a crime involving dishonesty or false statement. Richardson argues further that this decision has a chilling effect on the determination he had to make of whether or not to take the stand and testify in his own behalf, and that it resulted here in his not taking the stand. That was Richardson's choice. He was not required to testify on his own behalf. But if he had decided to do so, there is no reason that we can conceive why he should not be treated as any other witness, with full opportunity given to the state to cross-examine him and to impeach him with former crimes involving dishonesty or false statement under Criminal Rule 26. There was no error here. The judgment is REVERSED and the case is REMANDED' for a new trial. . "Perceive" means to become aware of directly through any of the senses; especially to see or hear. The American Heritage Dictionary at 972 (1973). . This disposes of Richardson's claim that the indictment should have been dismissed since his contention in this regard is based on substantially the same testimony given by Thomas before the grand jury, which Richardson claims was inadmissible hearsay. . Out of the presence of the jury, Pascu stated in open court that he would invoke his privilege against self-incrimination if asked any questions regarding the events on February 11, 1976. . U.S.Const. Amend. VI; Alaska Const, art. I, § 11- . Crim.R. 26(f)(1) provides: For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is admissible but only if the crime involved dishonesty or false statement. . See Lowell v. State, 574 P.2d 1281 (Alaska 1978).

10471720

Gail Y. FARO, Appellant, v. Robert J. FARO, Appellee

Faro v. Faro

1978-06-23

No. 3465

1377

1381

579 P.2d 1377

579

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:54:24.577259+00:00

CAP

Before BOOCHEVER, C. J., and RABI-NOWITZ, CONNOR, BURKE and MATTHEWS, JJ.

Gail Y. FARO, Appellant, v. Robert J. FARO, Appellee.

Gail Y. FARO, Appellant, v. Robert J. FARO, Appellee. No. 3465. Supreme Court of Alaska. June 23, 1978. James H. Ottinger, M. Ashley Dickerson, Anchorage, for appellant. Timothy H. Stearns, Anchorage, for ap-pellee.

1739

10346

OPINION Before BOOCHEVER, C. J., and RABI-NOWITZ, CONNOR, BURKE and MATTHEWS, JJ. BURKE, Justice. This appeal arises from the custody and support provisions of a divorce decree. Appellant Gail Faro contends that the trial court abused its discretion by awarding custody of the parties' four minor children to appellee, Robert Faro. Appellant also contests the "limited" visitation rights contained in the order, the provision that she contribute $50 per month per child for their support commencing June 1, 1978, and the denial to her of any alimony or support award. It is well established that this court will disturb the trial court's resolution of custody issues only if the record shows an abuse of discretion or if controlling findings of fact are clearly erroneous. Horutz v. Horutz, 560 P.2d 397, 399 (Alaska 1977). In Wetzler v. Wetzler, 570 P.2d 741, 743 (Alaska 1977), we recently reiterated the standard to be applied in making custody determinations, namely, that the best interests of the child or children will control. In her oral argument appellant suggested that Wetzler represents a return to the "tender years" doctrine. That doctrine was specifically rejected in Johnson v. Johnson, 564 P.2d 71, 75 (Alaska 1977). A careful reading of our opinion in Wetzler would have revealed to appellant that it in no way revived the "tender years" doctrine. We find no abuse of discretion in the custody determination in the instant case. The court found both appellant and appellee to be fit parents. The court's marriage counsellor was unable to make a recommendation as to which parent should be granted custody. Another expert, a social worker for the State of Alaska, recommended that Mr. Faro be awarded custody of the children. She concluded that he was the more emotionally stable and financially secure of the parties. Given these factors and the great weight accorded to the trial judge's first-hand assessment of the parties, we cannot agree with appellant's assertion that the custody award constituted an abuse of discretion. Our review of visitation privileges is based upon the same standard applied in other custody matters, that is, we need only determine whether the trial court abused its discretion in fashioning suitable visitation rights. Curgus v. Curgus, 514 P.2d 647, 649 (Alaska 1973). Citing AS 09.55.205 as it read prior to its amendment in 1977, appellant asserts that the court erred by failing to award her visiting privileges which are "necessary or proper" as directed by the statute. We believe that the record supports the court's allocation of visiting rights. To the extent that the visitation schedule is limited, such limitation appears to be warranted by the demonstrated bitterness between the parties, which has resulted in violent confrontations. Because of the deleterious effects such outbursts might have on the children, the trial court was justified in limiting the visitation schedule as it did. If and when it can be shown that the bitterness between the parties has dissipated, the visitation privileges can always be liberalized to allow Mrs. Faro to visit the children more frequently. Appellant next contends that the trial court abused its discretion by ordering her to pay $50 per month per child for child support beginning June 1, 1978. As stated in Houger v. Houger, 449 P.2d 766, 771 (Alaska 1969), "[W]e shall not find an abuse of discretion unless we are left with the definite and firm conviction on the whole record that the judge made a mistake in awarding the child support he did." In the instant case we are convinced that the order as to child support constituted an abuse of discretion. At the time of the order Mrs. Faro was unemployed. Though she was optimistic about her opportunities for obtaining work as a musician, she had not worked as a musician for approximately 10 years and had no definite offers of employment at the time of the trial. Furthermore Mr. Faro testified that he did not feel he needed child support. In ordering Mrs. Faro to commence payments as of June 1, 1978, the trial court engaged in sheer speculation as to her ability to make such payments. If in fact Mrs. Faro at some time in the future is in a position to contribute to the support of the children, Mr. Faro can apply for a modification of the support arrangements. Our conclusion that the court abused its discretion in no way is meant to suggest that Mrs. Faro, as a non-custodial mother, could not be required to contribute to her children's support if it could be shown that she was financially able to do so. However, as of the date of the order, nothing in the record suggests that Mrs. Faro could or would be able in the near future to make such payments. Finally, Mrs. Faro challenges the court's refusal to award her alimony or support. The trial court is vested with broad discretion in making alimony determinations. Where there is no clear abuse of that discretion this court will not interfere. Schoning v. Schoning, 550 P.2d 373, 374 (Alaska 1976). In Schoning we set forth the following factors which the trial court is to consider in determining alimony and division of property: the respective ages of the parties; their earning ability; the duration and conduct of each during the marriage; their station in life; the circumstances and necessities of each; their health and physical condition; their financial circumstances, including the time and manner of acquisition of the property in question, its value at the time and its income producing capacity if any. 550 P.2d at 374 (citing Merrill v. Merrill, 368 P.2d 546, 547-48 n. 4 (Alaska 1962)). Mr. Faro is employed by the Army and earns $875 per month in addition to military benefits. He lives on the military base and receives free government housing in lieu of a $500 per month housing allowance. Although presumably this amount has been sufficient to make ends meet, the trial judge's order that Mrs. Faro pay child support payments suggests that he believed $875 per month was something less than enough to make ends meet. In any event it seems clear that there are no excess funds out of which support payments could be made. The parties had debts of approxi mately $4300 of which $2800 were assumed by Mr. Faro and $1500 by Mrs. Faro. The parties own three parcels of land which the court ordered sold, the proceeds to be divided equally along with the other personal property of the • parties. In light of Mr. Faro's minimal income, the fact that he will provide all of the support for the minor children, his assumption of more than half of the parties' debts, and the prospect of ready cash for Mrs. Faro following the sale of the property, we cannot agree with appellant that the trial court's denial of any support payments to her was an abuse of discretion. Accordingly this case is AFFIRMED as to the provisions relating to custody, visitation privileges, and the denial of support payments to appellant. It is REVERSED as to the provision ordering appellant to pay child support. AFFIRMED in part, REVERSED in part. . See Horton v. Horton, 519 P.2d 1131, 1132 (Alaska 1974); Carle v. Carle, 503 P.2d 1050, 1052 (Alaska 1972). . AS 09.55.205. . Under the "tender years" doctrine, other factors being equal, a mother will be given preference for custody. Wetzler, supra at 742; Johnson v. Johnson, 564 P.2d 71, 73-74 (Alaska 1977); King v. King, 477 P.2d 356, 357 (Alaska 1970). . In Johnson we concluded that determination of the child's best interest must turn on a balancing of the unique facts of each case rather than upon outmoded presumptions. . Sheridan v. Sheridan, 466 P.2d 821, 824 (Alaska 1970). . Similarly, we are unpersuaded by appellant's contention that the trial court placed undue emphasis upon Mrs. Faro's demeanor at trial and upon the fact that the eldest son suffers from Duchenne's muscular dystrophy. Appellant suggests that the facts in the instant case are comparable to those in Horton v. Horton, 519 P.2d 1131 (Alaska 1974), in which we concluded that the trial court abused its discretion in finding that the child's need for a "father figure" outweighed the father's history of participating in and encouraging incestuous relations among his children. The facts here support the trial judge's determination as to what is in the best interests of the children, and do not suggest the sort of bias found in Horton. In addition these facts bear no resemblance to the situation in Horton in which the trial court's custody award was potentially detrimental to the children. .The order in this case was entered on May 5, 1977, before the effective date of the amendments. Prior to the 1977 amendments, AS 09.-55.205 contained the following provisions: Judgments for custody. In an action for divorce or for legal separation the court may, during the pendency of the action, or at the final hearing or at any time thereafter during the minority of any child of the marriage, make an order for the custody of or visitation with the minor child which may seem necessary or proper and may at any time modify or vacate the order. In awarding custody the court is to be guided by the following considerations: (1) by what appears to be for the best interests of the child and if the child is of a sufficient age and intelligence to form a preference, the court may consider that preference in determining the question; (2) as between parents adversely claiming the custody neither parent is entitled to it as of right. AS 09.55.205, as amended, contains the same "necessary or proper" language so the outcome in this case as to visitation would be identical under the statute as amended. . Mrs. Faro was accorded visiting rights every other weekend, from Friday at 6:00 p. m. until Sunday at 6:00 p. m., two weeks during the summer, and limited rights at Christmas and on the children's birthdays. . We recently reiterated this standard in Brenton v. Brenton, 564 P.2d 1225 (Alaska 1977). . Mr. Faro assumed miscellaneous debts of the parties and Mrs. Faro assumed the debt outstanding on the organ which she required for her prospective work as a musician.

10448459

Mike G. SMILOFF, Appellant, v. STATE of Alaska, Appellee

Smiloff v. State

1978-05-26

No. 3006

28

38

579 P.2d 28

579

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:54:24.577259+00:00

CAP

Before BOOCHEVER, C. J., and RABI-NOWITZ, CONNOR and BURKE, JJ.

Mike G. SMILOFF, Appellant, v. STATE of Alaska, Appellee.

Mike G. SMILOFF, Appellant, v. STATE of Alaska, Appellee. No. 3006. Supreme Court of Alaska. May 26, 1978. Barbara Miracle and John M. Murtaugh, Asst. Public Defenders, Brian Shortell, Public Defender, Anchorage, for appellant. Glen C. Anderson, Asst. Dist. Atty., Joseph D. Balfe, Dist. Atty., Anchorage, and Avrum M. Gross, Atty. Gen., for appellee.

6060

36671

OPINION Before BOOCHEVER, C. J., and RABI-NOWITZ, CONNOR and BURKE, JJ. RABINO WITZ, Justice. Appellant Mike Smiloff was indicted for the crime of lewd 'and lascivious acts towards a child in violation of AS 11.15.134. Prior to trial Smiloff moved to dismiss the indictment on the grounds that AS 11.15.-134 is unconstitutionally void for vagueness, and that the grand jury selection procedures did not comport with either applicable statutory requirements or constitutional mandate. Smiloff also filed a pretrial motion in which he sought to prevent the prosecution's exercise of any peremptory challenges to petit jurors. The three motions were subsequently denied. After the jury had been selected and immediately prior to opening statements, Smiloff's counsel requested the superior court to examine the accused's competency to stand trial in light of the problems he had encountered in attempting to obtain assistance from Smiloff. The superior court, relying on the prior reports of the examining physician, concluded that there was "no evidence to suggest Mr. Smiloff is other than competent to stand trial." After trial, the jury returned a verdict of guilty, and the superior court sentenced Smiloff to a term of imprisonment of 5 years. This appeal followed. Before this court, appellant has asserted five separate specifications of error. We turn first to Smiloff's contention that AS 11.15.134 is unconstitutionally vague and overbroad. This specification of error is controlled by Anderson v. State, 562 P.2d 351 (Alaska 1977). There, in the face of assertions of vagueness and overbreadth, we upheld the constitutionality of AS 11.-15.134(a), stating, in part: However, the State argues that AS 11.-15.134(a) is meant to punish only lewd and lascivious physical contact with children. We agree. We construe the words 'lewd or lascivious act . . upon or with the body of a child' to require physical contact of the child's body by the adult or by some instrumentality controlled by the adult. Smiloff next contends that the superior court erred in denying his motion to dismiss the indictment because unlawful and unconstitutional procedures were utilized in selecting grand jurors. Smiloff's assertions of illegality are bottomed on the contention that the Area Court Administrator from the Third Judicial District added an additional requirement for jury service, namely, that the prospective jurors have lived in the State of Alaska for at least one year. In appellant's view, this one year residency requirement is violative of AS 09.20.050(b) and the equal protection pro- visions of both the Federal and Alaska Constitutions. In Hampton v. State, 569 P.2d 138 (Alaska 1977), we were presented with a challenge that went to the array of both the grand and petit jurors. Parallel arguments were advanced in that case to these now urged by Smiloff. In rejecting Hampton's attack upon the jury array, we said, in part: There is a one-year residency requirement for jury service in the federal courts. The legislative history of the provision illustrates that the purpose of the provision is to guarantee 'some substantial nexus between a juror and a community whose sense of justice the jury as a whole is expected to reflect.' The constitutionality of the provision has been uniformly upheld. Applying the 'cognizable group' standards to less-than-one-year residents, we conclude that Hampton's sixth amendment right to an impartial jury was not impaired. The excluded group is not a static one with definite parameters. There is no common thread, 'a basic similarity in attitudes or ideas or experience,' except the lack of familiarity with the community. While circumstances can be imagined in which bias against a defendant member of the excluded group might exist, that possibility is too remote to justify reversal in the absence of a more specific suggestion of prejudice. (footnotes omitted) Thus, we conclude that Hampton is disposi-tive of Smiloff's constitutional attack on the grand jury selection procedures employed in the case at bar. As to the contention that the jury selection procedures were also violative of AS 09.20.050(b), we hold that Hampton, as well as the provisions of AS 09.20.040 mandate that Smiloff's assertions of statutory violation be rejected. Smiloff also challenges the constitutionality of Criminal Rule 24(d) insofar as it purports to allow the prosecution peremptory challenges of jurors. Prior to the commencement of his trial, Smiloff sought a protective order arguing that the substantive right of peremptory challenges could not be conferred by rule. The superior court denied the motion; at the trial the state exercised one peremptory challenge. Smiloff argues that in "American jurisprudence, the prosecutorial peremptory challenge is solely the creature of the legislature — absent any express grant, it is merely an inactive historical oddity." He then points to the fact that the right to prosecutorial peremptories in Alaska stems not from the legislature but from this court in Criminal Rule 24(d). Thus, he argues Rule 24(d) is not merely a procedural rule but confers a substantive right as well. From the foregoing, Smiloff concludes that the rule was not promulgated within the constitutional powers of this court and is thus unconstitutional. The state takes the position that the prosecution at common law was allowed the functional equivalent of a peremptory challenge and, thus, that AS 01.10.010 operates to preserve that right. Furthermore, the state argues Rule 24(d) is procedural rather than substantive, since it merely implements the constitutional right to an impartial jury. Lastly, the state argues that the legislature has provided for supreme court authority to promulgate Criminal Rule 24(d) in AS 09.20.090. The prosecution's authority to peremptorily challenge jurors is rooted in the common law. The Ordinances for Inquests (1305), an act of Parliament during the reign of Edward I, limited prosecutorial challenges to those for cause. Prior to that act, the Crown could challenge peremptorily without limitation as to number. However, by rule of the court, the Crown was not required to show cause until the entire panel had been called. Thus, through the "stand aside" procedures employed, the Crown was limited in its challenges only when there was a deficiency of veniremen in the box. In this country Congress enacted a statute in 1790 which established the right of defendants to 35 peremptories in trials for treason and 20 in trials for specified capital felonies. However, the courts held that the government's right to have jurors "stand aside" was inherited as part of the common law and that the 1790 statute did not abrogate that right. The right to a specified number of peremptories was given to the government by Congress in 1865. Although there is no constitutional requirement of the United States or the states to grant peremptory challenges to either the accused or the prosecution, most jurisdictions provide for such challenges by either rule or statute. Assuming, arguendo, that Smiloff is correct in his assertion that Criminal Rule 24(d) concerns substantive rights, we conclude that the rule is not unconstitutional. AS 09.20.090 provides, in part, that "the prospective jurors shall be examined, challenged, and sworn as provided by the rules of the supreme court." We construe AS 09.20.090 as a legislative declaration of the right to peremptory challenges, as well as authorization to this court to deal with the procedural aspects of the right through our rule-making powers. We next examine the contention that the superior court erred in its denial of defense counsel's request for a competency hearing. After the jury had been sworn, defense counsel raised the issue of Smiloff's competency to stand trial. The prosecution had recently made an offer, in the context of a plea bargain, to Smiloff which defense counsel had recommended accepting; Smiloff refused it. Counsel had had other problems in securing Smiloff's assistance with the defense of the case. A psychiatrist had previously examined Smi-loff and found him competent to stand trial. The superior court chose not to conduct an evidentiary hearing, finding no ba sis to support an assertion of incompetency. Smiloff argues that the superior court's refusal to conduct an evidentiary hearing to determine his competency to stand trial resulted in a denial of due process.. He asserts that he had the right to examine the experts as to the basis of their opinions; that the new factors presented by his trial counsel mandated a fresh determination; and that he had met the burden prerequisite to a hearing. The state, on the other hand, argues that Smiloff's competency to stand trial had been fully and adequately explored. Thus, the state contends that the superior court did not abuse its discretion by refusing to hold an evidentiary hearing on the issue of Smiloff's competency. AS 12.45.100, patterned after 18 U.S.C. § 4244, provides that defendants who lack the capacity to understand the proceedings or to assist in the defense may not be tried, convicted or sentenced so long as the incapacity endures. The statute provides that if the examining psychiatrist reports that the defendant is incompetent to stand trial, "the court shall hold a hearing, upon due notice." However, the statute is silent on the procedures to be employed if the psychiatrist's reports indicate that the accused is competent. In Schade v. State, 512 P.2d 907, 914 (Alaska 1973), we held that where "the psychiatric examination of the defendant yields professional findings that the defendant is competent to stand trial, the question of whether to hold . . . evi-dentiary hearings is addressed to the sound discretion of the trial court." Thus, the question is whether the problems that counsel had encountered mandated an independent determination by the superior court of Smiloff's competency to stand trial at that time. In Fajeriak v. State, 520 P.2d 795, 802-03 (Alaska 1974), the court stated: Great deference is to be accorded defense counsel's assessment in [competency] matters, insofar as he is better able than the trial judge or the prosecutor to assess the defendant's ability to participate in his defense and to understand the nature of the proceedings against him. (footnote omitted) Fajeriak was subsequently distinguished in McKinney v. State, 566 P.2d 653, 660, opinion on rehearing, 570 P.2d 733 (Alaska 1977). There we stated: In Fajeriak, the defense counsel indicated that his client was competent. Obviously, the same weight need not be given to a defense counsel's assertions of incompetence. An attorney's duty as an advocate will often require him to present those arguments on behalf of his client, and while his opinion is still relevant, it is not determinative. Thus, the evaluation by defense counsel of the defendant's competency is only of evi-dentiary value and is not dispositive of the issue. One of the leading cases in the competency area is Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). Robinson had been convicted of murder in the Illinois state court system. The Illinois Supreme Court affirmed the conviction, finding that no competency hearing had been requested, and-that the evidence failed to raise sufficient doubt as to Robinson's competency to require the court to conduct a hearing on its own motion. The United States Supreme Court reversed the conviction on Robinson's petition for habeas corpus, concluding that he was constitutionally entitled to a hearing on the issue of the competence to stand trial The evidence suggested that Robinson had a long history of remarkably irrational behavior. Despite the presence in the record of colloquies between the trial judge and Robinson showing alertness and understanding by Robinson, the Supreme Court held that the evidence entitled Robinson to a competency hearing. The importance of competency determinations was reiterated by the Supreme Court in Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). Drope had been indicted with two others for the forcible rape of his wife. In procedures replete with attorney error and oversight, the case proceeded to trial despite the objection of his counsel that Drope was not of "sound mind" and needed a second psychiatric examination before trial. Midway through trial, Drope attempted suicide; the trial proceeded without him. The Supreme Court avoided the question as to whether the evidence was sufficient to require a competency examination, holding that when the attempted suicide was considered, together with the psychiatric information available before trial and the testimony of Drope's wife at trial, a sufficient doubt as to Drope's competence to stand trial was presented so as to require further inquiry. The Court noted that even when a defendant is competent to stand trial at the beginning of his trial, the trial court must always be alert to circumstances indicating that the accused is no longer competent to stand trial. In Hansford v. United States, 124 U.S.App.D.C. 387, 365 F.2d 920 (1966), the court of appeals also considered the need for re-determination of competency. There, the hospital to which the defendant was sent for narcotics detoxification reported that he was competent to stand trial, and the district court, without a hearing, determined that he was competent. However, the circuit court found a duty on the part of the trial court to conduct a competency hearing during trial where it appeared that the defendant had been using drugs and may have been suffering from acute brain syndrome produced by narcotics during trial. The court stated: In the present case, the predictive value of the [h]ospital report and of the initial judicial determination of appellant's competency was vitiated by appellant's resumption of his use of narcotics following his examination. This fact, brought out at trial, should have put the trial court on notice that appellant might then have become incompetent. From these cases, we conclude that the duty to determine competency is not one that can be once determined and then ignored. Thus, the question becomes one of possible abuse of discretion by the superior court in denying defendant's request for an evidentiary hearing. There are many federal cases decided under 18 U.S.C. § 4244, or on habeas corpus petitions, which hold that where the medical witness has reported that the accused is competent to stand trial the refusal to hold a hearing is not denial of due process. In Chenault v. Stynchcombe, 546 F.2d 1191, 1193 (5th Cir.), cert. denied, 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158 (1977), the Court of Appeals for the Fifth Circuit noted that three factors should be considered: a history of irrational behavior, defendant's demeanor at trial, and prior medical opinion. Although this court has never laid down specific criteria to be used in judging incompetence to stand trial, we have noted that memory loss, whether partial or total, is not an adequate ground for a declaration of incompetency. Concerning the question of "understanding," we have stated: But this does not mean that a defendant must possess any high degree of legal sophistication or intellectual prowess. In determining competency, the standard of judgment must be a relative one. Some comparison, must be made between the apparent competency of the accused and the ability level of the average criminal defendant. That level of ability is often not great. Numerous persons are subjected to criminal prosecution, and properly so, even though they are of relatively low intelligence or are suffering from some significant emotional or physical impairment. Not every emotional flaw renders one incompetent to stand trial. (footnote omitted) In the case at bar, we have concluded that the showing made by the defense was not sufficient to trigger the holding of a competency hearing. The main thrust of the trial counsel's showing was the fact that he had encountered difficulties and disagreements with Smiloff over whether to accept a plea bargain and whether to have a jury trial. Defense counsel did not refer to any bizarre behavior on Smiloff's part or any specific facts indicating Smi-loff's incompetency. In these particular circumstances, we hold that the superior court did not err in ruling that a fresh competency hearing was not required. In his final specification of error, Smiloff claims that the superior court erred in failing to give instructions on assault and battery and contributing to the delinquency of a child as lesser included offenses of the crime of lewd or lascivious acts toward children. Defense counsel requested the assault and battery instruction, but did not request the other instruction. The state has asserted that the assault and battery instruction was not requested timely. The record shows during the trial the superior court ordered that respective counsel were to submit requested instructions by Friday morning. On the following Monday morning, just prior to submission of the case to the jury for deliberation, the court and counsel discussed the instructions which the superior court proposed to give to the jury. It was during the conference that Smiloff's counsel, for the first time, requested an instruction concerning the offense of assault and battery on the theory that the offense is a lesser included offense of the lewd and lascivious acts toward a child. At this point in the proceedings, the state objected to this requested instruction on the ground that it was requested untimely. The superior court, in denying the request, based its ruling, in part, on the failure to timely request the instruction. We think the superior court's ruling was correct in light of Smiloff's untimely request. Criminal Rule 30(a) authorizes the trial court to set a reasonáble time for the submission of written requested instructions. In this regard, the rule provides, in part: At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. There is no contention made that the time set for the submission of requested instructions by the trial court was unreasonable. The rationale of the above-quoted portion of Criminal Rule 30(a) is to accord the trial court adequate time to consider the requested instructions and to prepare appropriate instructions. This portion of Criminal Rule 30(a) is one of the procedural devices given to the trial courts to enable them to govern trial proceedings. Given the authorization of Criminal Rule 30(a) and its purposes, we conclude that the superior court did not err in refusing to give Smiloff's untimely requested instruction on assault and battery. Affirmed. . AS 11.15.134(a) provides: A person who commits a lewd and lascivious act, including an act constituting another crime, upon or with the body of a child under 16 years of age, intending to arouse, appeal to, or gratify his lust, passions, or sexual desires, or the lust, passions, or sexual desires of the child is punishable by imprisonment for not more than 10 years nor less than one year. . Anderson v. State, 562 P.2d 351, 353 (Alaska 1973). In the case at bar, appellant adopted and incorporated by reference appellant's briefs in the Anderson case. . AS 09.20.050(b) provides: The jury list shall be based on a list of all persons who purchased a resident trapping, hunting or fishing license during the preceding calendar year which showed an Alaskan address (to be prepared by the Department of Fish and Game), a list of all persons who filed a state income tax return during the preceding calendar year which showed an Alaskan address (to be prepared by the Department of Revenue), and a list of all persons who have registered to vote in this state (to be prepared by the lieutenant governor). The departments and the lieutenant governor shall submit their respective files to the Department of Administration not later than January 15 of each year. To the extent that it is available, the files submitted by the departments and the lieutenant governor shall contain the following information for each person on the list for the preceding calendar year: his first name, middle initial, and last name; his residence address as well as his mailing address, including the zip code for each; his social security number; his birth date; and the number of years and months he has been a resident of the state. The files submitted by the departments and the lieutenant governor shall be recorded on magnetic tape compatible with Department of Administration data processing equipment. . Hampton v. State, 569 P.2d 138, 149 (Alaska 1973). In Hampton, at 148, we further stated: The term 'cognizable group' was defined by the federal district court in United States v. Guzman, 337 F.Supp. 140, 143-44 (S.D.N.Y.), aff'd, 468 F.2d 1245 (2d Cir. 1972), cert. denied, 410 U.S. 937, 93 S.Ct. 1397, 35 L.Ed.2d 602 (1973), in the following manner: A group to be 'cognizable' for present purposes must have a definite composition. That is, there must be some factor which defines and limits the group. A cognizable group is not one whose membership shifts from day to day or whose members can be arbitrarily selected. Secondly, the group must have cohesion. There must be a common threat which runs through the group, a basic similarity in attitudes or ideas or experience which is present in members of the group and which cannot be adequately represented if the group is excluded from the jury selection process. Finally, there must be a possibility that exclusion of the group will result in partiality or bias on the part of juries hearing cases in which group members are involved. That is, the group must have a community of interest which cannot be adequately protected by the rest of the populace, (citation omitted) . See note 3, supra, for the text of AS 09.20.-050(b). . AS 09.20.040 provides: The selection of jurors shall be made in substantial compliance with the following provisions. A failure in substantial compliance which prejudices the rights of a party is reversible error. In our view, the statutory jury selection procedures were substantially complied with in the case at bar. . Criminal Rule 24(d) provides: Peremptory Challenges. After all challenges for cause are completed, the parties shall make or waive their peremptory challenges. First the plaintiff and then the defendant may exercise one or more peremptory challenges alternately until each party successively waives further peremptory challenges or all such challenges have been exercised. A party who waives peremptory challenge as to the jurors in the box does not thereby lose the challenge but may exercise it as to new jurors who may be called. A juror peremptorily challenged is excused without cause. If the offense is punishable by imprisonment for more than one year, the state is entitled to 6 peremptory challenges and the defendant or defendants jointly to 10 peremptory challenges. If the offense charged is punishable by imprisonment for not more than one year, or by fine or both, each side is entitled to 3 peremptory challenges. If there is more than one defendant, the court may allow the defendants additional peremptory challenges and permit them to be exercised separately or jointly. . Article IV, section 15 of the Alaska Constitution reads: The supreme court shall make and promulgate rules governing the administration of all courts. It shall make and promulgate rules governing practice and procedure in civil and criminal cases in all courts. These rules may be changed by the legislature by two-thirds vote of the members elected to each house. . See Thomas v. State, 566 P.2d 630, 636-38 (Alaska 1977); Allred v. State, 554 P.2d 411, 426-27 (Alaska 1976) (Rabinowitz, J., concurring); Winegardner v. Greater Anchorage Area Borough, 534 P.2d 541 (Alaska 1975); Channel Flying, Inc. v. Bernhardt, 451 P.2d 570 (Alaska 1969). . AS 01.10.010 provides: So much of the common law not inconsistent with the Constitution of the State of Alaska or the Constitution of the United States or with any law passed by the legislature of the State of Alaska is the rule of decision in this state. . AS 09.20.090 provides: When a civil case which is to be tried by a jury is called for trial, the clerk shall draw from the trial jury box containing the names of those on the jury panel a number of names or numbers sufficient to name a jury of 12 unless the court directs otherwise. The prospective jurors shall be examined, challenged, and sworn as provided by the rules of the supreme court. This section is made applicable to criminal cases by AS 12.45.010. . Hayes v. Missouri, 120 U.S. 68, 70-71, 7 S.Ct. 350, 30 L.Ed. 578, 580 (1887). Accord, Swain v. Alabama, 380 U.S. 202, 213, 85 S.Ct. 824, 13 L.Ed.2d 759, 768 (1965). . Id. . Swain v. Alabama, 380 U.S. at 214, 85 S.Ct. at 832, 13 L.Ed.2d at 769. . Id. at n. 13. . Swain v. Alabama, 380 U.S. at 219, 85 S.Ct. at 835, 13 L.Ed.2d at 772. See Stilson v. United States, 250 U.S. 583, 40 S.Ct. 28, 63 L.Ed. 1154 (1919). . See Swain v. Alabama, 380 U.S. at 217 n.20, 85 S.Ct. at 834, 13 L.Ed.2d at 771 n.20. ABA Standards Relating to Trial by Jury § 2.6 (Approved Draft, 1968) states: The number of peremptory challenges and the procedure for their exercise should be governed by rule or statute. . For the full text of AS 09.20.090 see note 11, supra. . Smiloff asserts: Since challenges for cause are a common law heritage and constitutionally mandated as an element of a fair and impartial jury, it seems most reasonable that the statute speaks to these challenges. Had the legislature intended to grant the right to peremptory challenges, first they would have utilized the word 'peremptory' and second, the grant would have been express. The legislative history of these sections is devoid of any allusion to peremptory challenges. He argues that under the doctrine of ejusdem generis "challenged" is a procedural word because "examined" and "sworn" are procedural words. While the rule of interpreting a word in conjunction with those words associated with it is an appropriate analytical tool, the primary inquiry in legislative interpretation is the intent of the legislature. In this situation, where there is a lengthy history of peremptory challenges and where the most often litigated question is the number of peremptories to be allowed rather than the existence of perempto-ries, we think our construction of AS 09.20.090 is reasonable. We have recognized that the line between substance and procedure is an elusive one. If one examines Alaska Criminal Rule 24(d) as it affects the conduct of business in the courts, it is procedural. However, if one looks for a prior existing right of prosecutorial peremptory challenge and does not find one, the rule would create a right and thus be substantive. This is the test laid down in Channel Flying, Inc. v. Berndardt, 451 P.2d 570, 575-76 (Alaska 1969). As to the precise issue before the court, the ultimate question is whether the right of the prosecution to peremptory juror challenges is a right created outside of Rule 24(d). We note that the history previously alluded to provides support for the proposition that the right did exist at common law and thus could have been carried over by AS 01.10.010. . This is apparently not the first time that the issue had been raised, since two psychiatrists had already examined Smiloff with respect to competency. . Defense counsel stated: It's my experience in the last 2'/⅛ days of jury selection, it's — the problems we had in Mr. Smiloff deciding whether he wanted a jury trial and run all the risks of the prejudice of people hearing this kind of evidence as opposed to a court trial, in my long discussions with him of how he evaluates the evidence, whether or not he can really understand the impact of the testimony upon a jury and make a rational decision of how the jury might view the testimony and once again, helping to decide whether he should contest the case as guilty or contest or whatever. . On appeal, Smiloff points out that the Olivier examination was two months before trial with a recent addendum based on earlier tests. This information does not appear in the record. . The court was concerned about the time of the request and stated: I wish we'd raised this matter before. I've got 13 jurors out there and they think this system [has] got a broken gear. After urging by defense counsel that competency was ultimately a legal decision, the court held: All right. Then I find no evidence to suggest Mr. Smiloff is other than competent to stand trial. I have no evidence to the contrary. . AS 12.45.100 states: Determination of mental disease or defect during trial or probation, (a) No person who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense may be tried, convicted or sentenced for the commission of an offense so long as the incapacity endures. (b) When, after arrest and before the imposition of sentence or before the expiration of any period of probation, the attorney general, the district attorney, or the attorney for the accused has reasonable cause to believe that a person charged with an offense may be presently suffering mental disease or defect or is otherwise so mentally incompetent that he is unable to understand the proceedings against him or properly to assist in his own defense, he may file a motion for a judicial determination of the mental competency of the accused. Upon that motion or upon a similar motion in behalf of the accused, or upon its own motion, the court shall have the accused, whether or not previously admitted to bail, examined as to his mental condition by at least one qualified psychiatrist, who shall report to the court. For the purpose of the examination the court may be submitted, including that of the reporting psychiatrist, and court may determine to a suitable hospital or other facility to be designated by the court. If the report of the psychiatrist indicates a state of present mental disease or defect or of other mental incompetency in the accused, the court shall hold a hearing, upon due notice, at which evidence as to the mental condition of the accused may be submitted, including that of the reporting psychiatrist, and make a finding with respect to his mental condition. No statement made by the accused in the course of an examination into his mental competency provided for by this section, whether the examination is with or without the consent of the accused, may be admitted in evidence against the accused on the issue of guilt in a criminal proceeding. A finding by the judge that the accused is mentally competent to stand trial in no way prejudices the accused in a defense based on mental disease or defect excluding responsibility; the finding may not be introduced in evidence on that issue or otherwise be brought to the notice of the jury. . See Bosel v. State, 398 P.2d 651, 654 n.7 (Alaska 1965). . In Fajeriak, at 802, the question was whether the trial court erred in not ordering a psychiatric examination sua sponte. The court emphasized the opinion of defense counsel that Fajeriak was competent to stand trial in holding that there was no error. . Schade v. State, 512 P.2d 907, 913 (Alaska 1973). In Schade, the counsel felt the defendant was competent as did the examining psychiatrists. The court held that the lower court did not err in finding Schade competent to stand trial. . 383 U.S. at 377, 86 S.Ct. at 838, 15 L.Ed.2d at 817-18. . 420 U.S. at 180, 95 S.Ct. at 908, 43 L.Ed.2d at 118. . Id. at 181, 95 S.Ct. at 908, 43 L.Ed.2d at 119. . 124 U.S.App.D.C. at 392, 365 F.2d at 925. . See, e. g., Chenault v. Stynchcombe, 546 F.2d 1191 (5th Cir.), cert. denied, 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158 (1977); United States v. Kaufman, 393 F.2d 172 (7th Cir. 1968), cert. denied, 393 U.S. 1098, 89 S.Ct. 892, 21 L.Ed.2d 789 (1969); United States v. Sharp, 381 F.2d 708 (4th Cir. 1967), cert. denied, 390 U.S. 964, 88 S.Ct. 1068, 19 L.Ed.2d 1163 (1968); United States v. Knohl, 379 F.2d 427, cert. denied, 389 U.S. 973, 88 S.Ct. 472, 19 L.Ed.2d 465 (1967). . Fajeriak v. State, supra, 520 P.2d at 801. See also Kostic v. Smedley, 522 P.2d 535 (Alaska 1974). . Schade v. State, supra, 512 P.2d at 914. . In our view, the superior court's concern regarding the jury which had been empanelled is particularly inapposite. As Pate and Drope so clearly illustrate, considerations of judicial economy are not accorded much weight when compared with the need to conduct a competency hearing. What is significant is that the trial court make an independent judicial determination of the accused's competency to stand trial where a sufficient showing is made of facts which point to the necessity of conducting a competency hearing. See note, Incompetency to Stand Trial, 81 Harv.L.Rev. 454, 470 (1967). . At the time of trial, AS 11.15.230 provided: A person not armed with a dangerous weapon, who unlawfully assaults or threatens another in a menacing manner, or unlawfully strikes or wounds another, is punishable by a fine of not more than $500, or by imprisonment in a jail for not more than six months, or by both. . AS 11.40.130 provides: Contributing to delinquency of child, (a) A person who commits an act, or omits the performance of a duty, which causes or tends to cause, encourage or contribute to the delinquency of a child under the age of 18 years, is guilty of a misdemeanor, (b) A person who by threats, command or persuasion endeavors to induce a child under the age of 18 years to perform an act or follow a course of conduct which would cause or manifestly tend to cause him to become or remain delinquent is guilty of a felony, and upon conviction is punishable by imprisonment for not less than one year nor more than two years. "Delinquent" is defined in AS 11.40.150. . Alaska Criminal Rule 30 provides: (a) Requested Instructions — Objections. At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. At the same time copies of such requests shall be furnished to adverse parties. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. Additionally, the court in its discretion may give the jury such instructions it deems necessary, at any stage of the trial. The instructions shall be reduced to writing and read to the jury and shall be taken to the jury room by the jury. No party may assign as error any portion of the charge of omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objections. Opportunity shall be given to make the objection out of the hearing of the jury by excusing the jury or hearing objections in chambers. (b) Instructions to Be Given. The court shall instruct the jury on all matters of law which it considers necessary for the jury's information in giving their verdict. .THE COURT: I'm not going to give the instructions 5, 6 and 7. I don't think this case warrants it and I don't think assault and battery is a lesser included offense of lewd and lascivious acts. And as I say I've got it at the very last instance. . Inherent in our holding is the conclusion that the superior court's refusal to give an instruction on the lesser included offense of assault and battery does not constitute plain error. No request for or objection was made to the superior court's failure to instruct in the asserted lesser included offense of contributing to the delinquency of a child. Since we do not think the superior court's failure to give such an instruction in this factual context was plain error, we do not reach that contention. See Eliason v. State, 511 P.2d 1066, 1072 n.22 (Alaska 1973).

10455917

Thomas E. CURRAN, Jr. and Mary Jane Curran, Appellants, v. Hermann J. HASTREITER and Daniel T. Zantek, Individually and d/b/a Hastreiter-Zantek and Company, Appellees; Hermann J. HASTREITER and Daniel T. Zantek, Individually and d/b/a Hastreiter-Zantek and Company, Cross-Appellants, v. Thomas E. CURRAN, Jr. and Mary Jane Curran, Cross-Appellees

Curran v. Hastreiter

1978-05-19

Nos. 3026, 3071

524

531

579 P.2d 524

579

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:54:24.577259+00:00

CAP

Before BOOCHEVER, C. J., RABINO-WITZ, J., and BUCKALEW, Superior Court Judge.

Thomas E. CURRAN, Jr. and Mary Jane Curran, Appellants, v. Hermann J. HASTREITER and Daniel T. Zantek, Individually and d/b/a Hastreiter-Zantek and Company, Appellees. Hermann J. HASTREITER and Daniel T. Zantek, Individually and d/b/a Hastreiter-Zantek and Company, Cross-Appellants, v. Thomas E. CURRAN, Jr. and Mary Jane Curran, Cross-Appellees.

Thomas E. CURRAN, Jr. and Mary Jane Curran, Appellants, v. Hermann J. HASTREITER and Daniel T. Zantek, Individually and d/b/a Hastreiter-Zantek and Company, Appellees. Hermann J. HASTREITER and Daniel T. Zantek, Individually and d/b/a Hastreiter-Zantek and Company, Cross-Appellants, v. Thomas E. CURRAN, Jr. and Mary Jane Curran, Cross-Appellees. Nos. 3026, 3071. Supreme Court of Alaska. May 19, 1978. Janalee R. Strandberg and John S. Hed-land, Rice, Hoppner & Hedland, Anchorage, for appellants and cross-appellees. James A. Parrish, Parrish Law Office, Fairbanks, for appellees and cross-appellants. Before BOOCHEVER, C. J., RABINO-WITZ, J., and BUCKALEW, Superior Court Judge.

4288

26423

RABINO WITZ, Justice. Appellant Mary Jane Curran brings this appeal from the superior court's judgment which granted the claim of Hastreiter and Zantek for specific performance compelling appellant to convey an individual 49 per cent interest in certain commercial real property located in close proximity to the Alyeska Ski Resort in Girdwood, Alaska. The claim of Hastreiter and Zantek was based on an oral agreement. Appellees Hastreiter and Zantek have cross-appealed from the superior court's failure to award attorney's fees to them as the prevailing parties. Hastreiter and Zantek, who are masonry workers and musical performers, and Mr. and Mrs. Curran, who were owners of the land in the Girdwood-Alyeska area, planned together to develop several of the Currans' properties. In the course of planning the details regarding these projects, the parties discovered that the Currans' sublease on one of the properties (hereinafter referred to as the "commercial property") was encumbered by covenants and restrictions which, unless removed, would preclude development of that property consonant with the parties' hopes. The issue on appeal is the correctness of the following findings and conclusions of the superior court: that Mr. Curran offered to convey to appellees a 49 per cent interest in the commercial property if Hastreiter and Zantek were able to secure the necessary signatures on a waiver of the restrictions; that the contract was formed when appellees obtained the waiver and is not rendered unenforceable by the statute of frauds; and that Mrs. Curran, who is now Mr. Curran's widow, is bound by the agreement and must convey the interest. It is established that a party seeking specific performance of an oral contract to convey an interest in real property must, in addition to adducing evidence taking the agreement out of the statute of frauds, prove a contract sufficiently definite and certain in its terms to warrant the grant of specific performance. Where the existence of an oral contract and the terms thereof are contested and the evidence is conflicting, it is for the trier of fact to determine whether the contract did in fact exist and, if so, the terms of such contract. In addition, a party who challenges the sufficiency of the evidence supporting a trial court's finding of fact must demonstrate that the questioned finding is "clearly erroneous." Where, as in the case at bar, the superior court's decision depends largely on oral testimony and on inferences to be drawn from such testimony, this court must give due regard to the trial court's opportunity to evaluate the credibility of witnesses. In carrying out our appellate review functions, we are required to take the view of the evidence most favorable to the prevailing party at trial. Application of these principles has led us to the conclusion that appellant Cur-ran has demonstrated neither that the superior court's conclusions of law are erroneous, nor that the underlying findings of fact — relating to the issue of an oral contract to convey an undivided interest in the commercial property — are clearly erroneous. Viewing the evidence in the light most favorable to the prevailing parties below, the record contains evidence more than ample to sustain the superior court's determination that an oral contract for the conveyance of an undivided 49 per cent interest in the commercial property was proven. Inherent in our determination that the superior court's findings relating to the issue are not clearly erroneous is our rejection of appellant's argument that there was no separate agreement to convey an interest in the commercial property to Hastreiter and Zantek. Appellant next argues that the superior court erred in concluding that the statute of frauds was not a bar to the claim of Has-treiter and Zantek for specific performance of the oral contract to convey an interest in the commercial property. The superior court concluded that since Hastreiter and Zantek had "fully performed in accordance with the . [appellants'] offer, the contract between the parties is enforceable despite the absence of a written memorandum thereof. Thus, the Statute of Frauds is not a bar to the plaintiffs' action for specific performance." Since the case at bar concerns an oral contract to convey an interest in property, the statute of frauds is implicated. Appellant Mary Jane Curran invokes the statute insofar as it requires written evidence of Thomas Curran's agency on her behalf. The superior court determined that an exception to the statute of frauds applied in the instant case because appellees had "fully performed in accordance with the [Cur-rans'] offer." In this regard, AS 09.25.020 provides: Exceptions of statute of frauds. A contract, promise, or agreement which is subject to § 10 of this chapter, which does not satisfy the requirements of that section, but which is otherwise valid is enforceable if (1) there has been full performance on one side accepted by the ether in accordance with the contract . This proviso, by referring to AS 09.25.-010, applies equally to the requirement of written evidence of agency and to the general requirement of written evidence of a contract for the transfer of an interest in real property. Having reviewed the conflicting evidence and evaluated the parties' demeanor and credibility, the superior court concluded that an offer to convey an undivided one-half interest in the Currans' commercial property was made; and that upon securing the required waiver agreement, appellees accepted that offer and fully performed their obligations under the offer. The superior court's findings of fact do not explicitly cover the question of whether Mary Jane Curran accepted Hastreiter and Zantek's performance for purposes of determining whether the exception to the Statutes of Frauds contained in AS 09.25.020(1) is applicable. The requirement of a writing contained in AS 09.25.010(a)(7) is found in the statutes and case law of numerous other jurisdictions. In California, this requirement of written agency has been specifically applied to husband and wife situations. In O'Banion v. Paradiso, 61 Cal.2d 559, 39 Cal.Rptr. 370, 373, 393 P.2d 682, 685 (Cal.1964), the court stated, in part: Was Mrs. Orduno's orR assent to her husband's written memorandum sufficient to satisfy the statute of frauds although she never signed the memorandum or any document authorizing her husband to act on her behalf? No. An agreement for the sale of real property is invalid unless it is in writing. (Civ.Code, § 1624, subd. 4.) Since authority to enter into a contract which is required to be in writing can be given only by an instrument in writing (Civ.Code, § 2309), any contract by a husband affecting the wife's interest in land is unenforceable against her in the absence of a written authorization signed by the wife, there being no husband-wife exception to the statute of frauds. (Cf. Henry v. Nelms, 113 Cal.App. 587, 591, 298 P. 822; Glazer v. Hanson, 98 Cal.App. 53, 59[2], 276 P. 607. (emphasis deleted) Although the language of AS 09.-25.020(1), "there has been full performance on one side accepted by the other in accordance with the contract," is sufficiently broad to suggest that acceptance by the agent is sufficient, we think the proper construction requires that the acceptance must be by the principal before the exception provided for in AS 09.25.020(1) is applicable to AS 09.25.010(b) (/. e., agreements concerning real property by an agent). We therefore conclude that this aspect of the case must be remanded to the superior court for the entry of appropriate findings of fact and conclusions of law concerning the question of whether Mary Jane Curran accepted the performance of Hastreiter and Zantek. Appellant further argues that the superior court erred in finding that appellant Mary Jane Curran participated in the offer allegedly made by Mr. Curran to ap-pellees concerning the Currans' commercial party. We have concluded that this contention of appellant must be rejected. Review of the record establishes the presence of abundant evidence to support the trial court's finding that "Mrs. Curran did in fact consent to and join in the offer made by Mr. Curran, whereby he agreed to convey a 49% interest in the 'commercial' property to the plaintiffs in the event that they were able to obtain the required signatures on the waiver agreement." Thus, we hold that this finding of the superior court was not clearly erroneous. Appellant's final contention is that the superior court's findings with respect to the agency question do not comport with Civil Rule 52(a) and the concomitant duty of the trial court to make sufficiently detailed and explicit findings in order to give an appellate court a clear understanding of the basis for the trial court's decision and to enable it to determine the ground on which the trial court reached its decision. In our view, this contention must be rejected because the superior court's findings of fact clearly indicate the evidence upon which it relied in reaching a decision. In their cross-appeal, appellees contend that the superior court erred in failing to award attorney's fees to them as the prevailing party. The superior court stated in its findings of fact that "[u]nder the circumstances, justice will best be served if each party bears [its] own costs and attorney's fees." The superior court gave no further indication of the rationale for its decision and did not indicate whether it considered either party to have been the prevailing party. In these circumstances, we think Cooper v. Carlson, 511 P.2d 1305 (Alaska 1973), requires that this aspect of the case be remanded to the superior court. In Cooper, the superior court failed to specify who was the prevailing party and declined to award attorney's fees to either party. Cooper prevailed on every liability issue and was unsuccessful only in his argument that he was entitled to nominal damages on a counterclaim. Although he did not prevail on a subsidiary issue, we concluded that Cooper was the prevailing party because he had been successful with respect to the main issues in the action. Noting that under Civil Rule 82(a) the superior court could have denied attorney's fees for valid reasons, that the award of attorney's fees is discretionary with the trial judge, and that the award is reviewable on appeal only for abuse, we remanded the case for a ruling as to attorney's fees and explained: "We are confronted with the difficulty of not knowing whether the court denied the fee in the exercise of its discretion or under the mistaken belief that Cooper was not the prevailing party." On the basis of the judgment which was entered, we conclude that appellees prevailed. A balancing of the outcomes of the respective claims of the parties demonstrates the basis of our conclusions. Thus, the issue of attorney's fees must be remanded to the superior court for an award of attorney's fees to appellees, or in the alternative, a further explanation of why appellees should not receive an attorney's fee. Affirmed in part and Remanded in part. CONNORS, BURKE and MATTHEWS, JJ., not participating. . Mr. Curran died prior to the commencement of trial. As used herein, the term "appellant" refers only to Mrs. Curran. . At trial, appellees additionally sought a decree of specific performance compelling appellant to convey a 50 per cent interest in property known as the Barnes property, damages for the Currans' refusal to convey the interests in the two properties, and money allegedly owed for work performed on the construction of two cabins for the Currans. With respect to the cabins, the Currans alleged in a counterclaim that appellees' delay and improper construction caused a loss of rental income to the Currans. The trial court ruled against appellees' claim with respect to the Barnes property, against their claim for damages for delay in conveyance, and against their claim for work performed on the cabins. The court also ruled against appellant's counterclaim. Only the ownership of the commercial property is at issue on appeal. . Jackson v. White, 556 P.2d 530, 533 (Alaska 1976); Prokopis v. Prokopis, 519 P.2d 814 (Alaska 1974). . B. B. & S. Constr. Co., Inc. v. Stone, 535 P.2d 271, 273 (Alaska 1975); Nordin v. Zimmer, 373 P.2d 738, 741-42 (Alaska 1962). . Civil Rule 52(a) provides, in part: "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." See Chugach Elec. Ass'n v. Northern Corp., 562 P.2d 1053, 1060 n. 22 (Alaska 1977); State v. Abbott, 498 P.2d 712, 727 (Alaska 1972); Alaska Foods, Inc. v. American Mfr.'s Mut. Ins. Co., 482 P.2d 842, 848 (Alaska 1971). . Frontier Saloon, Inc. v. Short, 557 P.2d 779, 782 (Alaska 1976); Kenai Power Corp. v. Strandberg 415 P.2d 659, 660 (Alaska 1966). . Jackson v. White, 556 P.2d 530, 533 (Alaska 1976). . In this regard, the superior court entered, in part, the following conclusions of law: 3. The statement of Thomas E. Curran, Jr., that the plaintiffs could acquire a 49% interest in the 'commercial' property, by obtaining certain signatures on a waiver agreement to be prepared by him, manifested an intent to be bound upon the performance of the described act by plaintiffs. As such, the statement was an offer which, if accepted prior to revocation, would ripen into a unilateral contract. 4. Upon completion of the performance called for by the offer, a contract was formed between the parties whereby the plaintiffs became entitled to a conveyance of a 49% undivided interest in the commercial property. 10. Plaintiffs are entitled to a decree of specific performance requiring Mary Jane Curran to convey to them, as tenants in common, an undivided 49% interest in the 'commercial' property, such property being more particularly described in the court's finding of fact. . The most significant findings of fact articulated by the superior court in support of its conclusion that Hastreiter and Zantek had established a claim for specific performance are as follows: 14.On July 9, 1972, Mr. Curran acquired an additional interest in land hereinafter described as the 'commercial' property. Such interest was acquired by virtue of an assignment of a long term sublease. By the terms of the assignment, the Currans acquired their interest in the property as tenants by the entireties. 15. The 'commercial' property is more particularly described as Lot One (1), Block Two (2), North Addition # 1, to Alyeska Subdivision, according to Plat 68-95; being within the Anchorage Recording District, Third Judicial District, State of Alaska. 16. During the purchase of the sublease in the 'commercial' property, the parties discussed the future development of such property and prior to the Currans' payment of the full purchase price Hastreiter and Zantek offered to pay for one-half of the same. Their offer was declined. 17. At the time of the purchase of the 'commercial property,' such property was subject to certain covenants and restrictions that would impede its development along the lines envisioned by all of the parties. Such restrictions were discussed on several occasions and there was general agreement among all of the parties that if they could be removed, by obtaining a waiver from those third parties entitled to enforce the same, the commercial property would increase substantially in value. 18. Due to their popularity in the Alyeska area, it was believed that Mr. Hastreiter and Mr. Zantek might be better able to obtain a waiver than would the Currans. 19. During the late summer and fall of 1972 there were several discussions between the parties concerning the obtaining of the desired waiver. Mr. Curran spoke on behalf of the defendants, but Mrs. Curran was often present during such discussions. 20. Mr. Curran informed the plaintiffs that if the plaintiffs could obtain the required signatures on a waiver of restrictions, to be prepared by Mr. Curran, Hastreiter and Zan-tek would received a 49% interest in the above described 'commercial' property. 21. Thereafter, several forms of waiver agreement were prepared by Mr. Curran and presented to the necessary third parties by Mr. Hastreiter and Mr. Zantek. All such proposals were rejected. 22. Finally, on October 31, 1972, a modified form of waiver agreement, again prepared by Mr. Curran, was deemed acceptable by all concerned and plaintiffs obtained the necessary signatures. 23. By such action, the plaintiffs fully performed all that was required of them under the terms of Mr. Curran's offer. 24. Mr. Curran's offer was never revoked prior to the plaintiffs' acceptance thereof by performance of the act called for by such offer. 25. Plaintiffs' belief that Mr. Curran's proposal was a bona fide offer to convey a 49% interest in the 'commercial' property, in return for their obtaining the required signatures, was reasonable under the circumstances. 26. Although the waiver agreement upon which plaintiffs finally obtained the required signatures was less satisfactory to the parties than the earlier proposals prepared by Mr. Curran, Mr. Curran never indicated any intention to revoke or modify the terms of his own offer prior to the plaintiffs' acceptance thereof by their performance in obtaining the necessary signatures. .Appellant argues that the sole agreement between the parties was eventually to create a business association whose purpose would be to develop and manage commercial facilities on the Currans' land. To that association the Cur-rans would contribute property, and appellees would contribute their construction and managerial skills. The consideration for appellees' interest in the business association would be their construction of facilities at cost and their subsequent management of such facilities. Obtaining the waiver was merely a first step in this process rather than consideration for a separate agreement. Although this argument is consistent with Mrs. Curran's testimony, it is inconsistent with the bulk of appellees' and Mrs. Zantek's testimony. Appellant presents an alternative argument in support of her assertion that the superior court erred in finding that an offer by Mr. Curran to convey an interest in the commercial property if appellees could secure the signed waiver agreement. Appellant contends that if an offer to convey an interest in property had been made, the value of appellees' labor on their work performed in the construction of the cabins was partial consideration for that interest. Arguing that appellees are precluded by AS 08.18.151 from being compensated for their general contracting work on the cabins, appellant concludes that appellees only partially per-' formed their obligations by obtaining the waiver agreement and therefore are not entitled to specific performance. Our holding that the superior court's findings of fact were not clearly erroneous disposes of this alternative argument. . AS 09.25.010(b) states in relevant part: No estate or interest in real property, other than a lease for a term no[t] exceeding one year, nor any trust or power concerning the property may be created, transferred, or declared, otherwise than by operation of law, or by a conveyance or other instrument in writing subscribed by the party creating, transferring, or declaring it or by his agent under written authority and executed with the formalities that are required by law. . Sec. 09.25.010 provides in relevant part: (a) In the following cases and under the following conditions an agreement, promise, or undertaking is unenforceable unless it or some note or memorandum of it is in writing and subscribed by the party charged or by his agent: (7) an agreement concerning real property made by an agent of the party sought to be charged unless the authority of the agent is in writing . See note 12, supra. . See note 11, supra. . See note 12, supra. . See e. g., Cal.Civ.Code § 1624(4); Ore.Rev. Stat. § 41.580(6); In re Estate of Boysen, 218 N.E.2d 838, 841 (Ill.App.1966); Rebman v. Reed, 335 So.2d 37, 39 (La.App.1976); Crane v. Rangas, 53 Mich.App. 653, 220 N.W.2d 172, 173 (1974); Wilcher v. McGuire, 537 S.W.2d 844, 847 (Mo.App.1976); Pettit v. Vogt, 495 P.2d 395, 397 (Okl.1972); Charles v. Henry, 460 Pa. 673, 334 A.2d 289, 291 (1975). . See also Cano v. Tyrell, 256 Cal.App.2d 824, 64 Cal.Rptr. 522, 526 (1967). .The following findings of fact pertain to appellants' participation in the offer: 28. Customarily Mr. Curran acted on behalf of both himself and Mary Jane Curran in the purchase of property and other business dealings. 29. The evidence of the past business dealings of Mr. and Mrs. Curran, together with the various items of correspondence introduced at the time of trial, establishes that Mr. Curran customarily acted as Mrs. Cur-ran's agent in matters of business and that in this case he possessed both actual and apparent authority to act as her agent in his dealings with the plaintiffs. 30. Prior to the plaintiffs' performance in obtaining the required signatures on the waiver agreement, Mrs. Curran never expressed to the plaintiffs any limitation on her husband's authority to deal on her behalf. 31. Viewing the evidence as a whole it appears that Mrs. Curran did in fact consent to and join in the offer made by Mr. Curran, whereby he agreed to convey a 49% interest in the 'commercial' property to the plaintiffs in the event that they were able to obtain the required signatures on the waiver agreement. The following conclusions of law are also relevant: 5. Mary Jane Curran was a party to said offer and is bound by the terms of the contract which was later formed. 6. Mary Jane Curran is estopped to deny the agency of her husband and his authority to act on her behalf with respect to the 'commercial' property. . Wigger v. Olson, 533 P.2d 6, 7-8 (Alaska 1975); Graham v. Rockman, 504 P.2d 1351, 1355 (Alaska 1972); Merrill v. Merrill, 368 P.2d 546, 548 (Alaska 1962). . Although appellees specify as error the superior court's failure to award both costs and attorney's fees, they request that the case be remanded only for a determination of attorney's fees. There is no indication in the record that appellees complied with Civil Rule 79(a) which requires a party seeking costs to serve on each of the other parties within 10 days after entry of judgment "a cost bill, together with a notice when application will be made to the clerk to tax costs." The rule also provides that "[fjailure of a party to serve a cost bill and notice as required by this subdivision shall be construed as a waiver of his right to recover costs." Thus, appellees have apparently waived their right to costs. See M-B Contracting Co., Inc. v. Davis, 399 P.2d 433, 436-37 (Alaska 1965). In M-B Contracting, after invoking Rule 79(a) to bar consideration of an appeal as to costs, this court considered the separate issue of attorney's fees. . Civil Rule 82(a) provides that in cases where there is no monetary recovery, "attorney's fees for the prevailing party may be fixed by the court as a part of the costs of the action, in its discretion, in a reasonable amount." See M-B Contracting Co., Inc. v. Davis, 399 P.2d 433, 437 (Alaska 1965). . Cooper v. Carlson, 511 P.2d 1305, 1308 (Alaska 1973). . Reasons deemed valid in Cooper v. Carlson, 511 P.2d 1305, 1311 (Alaska 1973), include: a court's conclusion that the prevailing party interposed a counterclaim for the purpose of delay or confusion; a court's evaluation of the equities of the situation (e. g., where the court enforces a contract which awards the prevailing party property of far more value than he has given in return and the losing party has presented a legitimately arguable claim); and a court's conclusion that a party "having prevailed on his highly favorable contract, should not also receive a 'pound of flesh.' " (footnote omitted) . Cooper v. Carlson, 511 P.2d 1305, 1309 (Alaska 1973). An abuse of discretion is established where it appears that the trial court's determination as to attorney's fees was manifestly unreasonable. Cooper v. Carlson, 511 P.2d 1305, 1310 n. 6 (Alaska 1973); Palfy v. Rice, 473 P.2d 606, 613 (Alaska 1970). . Cooper v. Carlson, 511 P.2d 1305, 1311 (Alaska 1973). . A party may be the "prevailing party" if he is successful with regard to the "main issue in the action." Alaska Placer Co. v. Lee, 553 P.2d 54, 63 (Alaska 1976). Appellees contend that the dispute over the commercial property was the "central focus of the litigation." This characterization underas-sesses the amount of trial time expended on the dispute concerning the cabins and Barnes' property. However, if there was a "main issue" in this case, it was indeed the ownership of the commercial property. . Appellees sought a 49 per cent interest in the commercial property which was purchased for $25,000 (this figure does not take into account the property's increased value due to appellees' obtaining the waiver), a 50 per cent interest in the Barnes property which was purchased for $11,000, damages in an unspecified amount and approximately $1,050 for work performed on the cabins. Appellant resisted these claims and counterclaimed for $2,000 for lost rental value on the cabins. Appellees successfully recovered an interest worth approximately $12,250, and appellant successfully resisted a claim to an interest worth approximately $4,500. The damage claims roughly offset each other. . If, upon remand, the superior court determines that Mary Jane Curran did not accept the performance of Hastreiter and Zantek, then appellees would not be the prevailing parties.

6981147

THEA G., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee

Thea G. v. State, Department of Health & Social Services, Office of Children's Services

2013-01-09

No. S-14663

957

973

291 P.3d 957

291

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:40:56.488970+00:00

CAP

Before: FABE, Chief Justice, CARPENETI and STOWERS, Justices.

THEA G., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.

THEA G., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee. No. S-14663. Supreme Court of Alaska. Jan. 9, 2013. Marjorie K. Allard, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant. Megan R. Webb, Assistant Attorney General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Appellee. Mara Rabinowitz, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for Guardian ad Litem. Native Village of Kotzebue, through its ICWA Representative, Clara Henry. Before: FABE, Chief Justice, CARPENETI and STOWERS, Justices.

9858

61022

OPINION FABE, Chief Justice. I. INTRODUCTION Thea G. challenges the superior court's order terminating her parental rights to her two children, Zach, age 12, and Abbic, age six. The superior court terminated Thea's parental rights based on her unremedied substance abuse issues. Thea raises three issues on appeal: First, she challenges the superior court's finding that the Office of Children's Services (OCS) made active efforts to prevent the breakup of her family. Second, she challenges the finding that if her custody over Zach and Abbie were continued the children would likely suffer serious emotional or physical damage. Finally, she challenges the finding that termination of her parental rights is in Zach's and Abbie's best interests. Because each of these findings is supported by sufficient evidence, we affirm the superior court's order terminating Thea's parental rights to Zach and Abbie. IIL FACTS Thea and her husband, Samuel, had two children, Zach, born in 1999, and Abbie, born in 2005. Thea is a member of the Native Village of Kotzebue (the Tribe) and her children are eligible for membership, so the children are Indian children for purposes of the Indian Child Welfare Act (ICWA). Thea has struggled with substance abuse and domestic violence since at least 2003. In an incident that year, Thea, while intoxicated, physically assaulted her mother and sister in a struggle over the mother's medication. Zach was present during the scuffle. While being arrested, Thea kicked a corrections officer in the groin. Thea was convict, ed on two counts of domestic violence assault. In other, unrelated, incidents that year, Thea was convicted of assault and disorderly conduct. Since that time, Thea has demonstrated a pattern of abusing substances-typically aleohol-resulting in run-ins with law enforcement, followed by attempts at treatment and periods of sobriety, and then, invariably, a relapse and descent into substance abuse again. In July 2004, while Thea was pregnant with Abbie, Zach was taken into OCS's custody. OCS's concerns included the family's inadequate housing, Thea and Samuel's substance abuse, and repeated incidents of domestic violence between the couple in Zach's presence. OCS developed a case plan recommending that Thea participate in substance abuse treatment, a domestic violence assessment, and parenting classes. Thea completed a 85-day residential treatment program at Old Minto Family Recovery Camp. OCS returned Zach to his parents' physical care after about a month but retained legal custody for a year. After completing treatment, Thea remained sober for 18 months, but in January 2006 she relapsed and was arrested for driving while intoxicated on alcohol and Valium with Zach and Abbie in her car. She was convieted of DUI and resisting arrest. Samuel died of natural causes in September 2008, and, following his death, Thea's substance abuse escalated dramatically. She testified that she began abusing alcohol to the extent that her parenting was "terrible," and she was often intoxicated while caring for her children. On May 8, 2009, Thea called the state troopers to report that Zach and Abbie had been missing from her home for hours. According to the emergency adjudication petition, the trooper who responded to her call found Thea to be "highly intoxicated" and unable to care for her children. Thea later admitted that she had been "caring for her children in an intoxicated state without a sober caretaker" and that she was "unaware for a significant period of time" that the children were not in the home. Because of Thea's history of substance abuse, OCS took Zach and Abbie into its custody. The agency placed the children with Thea's neighbors, the Newtons. OCS developed a case plan for the family; the plan required Thea to participate in substance abuse treatment and urine analyses (UAs), refrain from misusing prescription and over-the-counter medications, complete parenting classes, and participate in counseling. The plan provided liberal opportunities for Thea to have contact with the children. Within a month of the children's removal, Thea was involved in a single-car accident that resulted in another DUI conviction. Several days later, Thea was remanded into custody for aleohol sereening, where her breath aleohol content registered .304. In late June 2009, following a referral by OCS, Thea began substance abuse treatment at Akeela House. She did not actively participate in the program, however, and withdrew after only 12 days. Her discharge report recommended that she receive mental health counseling and long-term treatment for mood-altering substances. For several weeks after Thea left Akeela House, she remained sober, she visited her children daily at the Newtons' home, and she applied for admission to treatment at Salvation Army Clitheroe Center. But before Thea entered that program, she relapsed again. By the close of 2009, Thea was once again sober. She attended AA meetings, had a sober support system in place, participated in outpatient treatment at Alaska Family Services (AFS), and worked with OCS to gain admission to a residential treatment program at Southcentral Foundation Dena A Coy. As a result, on December 10, 2009, OCS placed Zach and Abbie with Thea for a trial home visit. In disposition reports filed with the court in January 2010, Thea's social worker and the children's guardian ad litem praised Thea's performance leading up to and during the trial visit. But the trial visit ended later that month because Thea again relapsed. The children were returned to the Newtons' home. By spring 2010, Thea was again drinking heavily. In early March 2010, she was incarcerated on a DUI charge and underwent alcohol detoxification treatment. At the time, she reported that she was drinking half a bottle of vodka daily. The following month, Thea began a four-month residential treatment program at Dena A Coy, on referral by OCS. She successfully completed the program in August 2010, and she was discharged with a recommendation for participation in intensive outpatient care and attendance at AA/NA meetings. She was also referred to AFS for continued substance abuse and mental health counseling. She participated in the AFS program for a few months but did not complete it. In the fall of 2010, Thea and the Newtons asked OCS to place the children with Thea again for another trial home visit. Thea's social worker, Fennisha Gardner, denied the request, stating that Thea was not ready for such a visit and that she did not want to set Thea up for failure. Despite OCS's denial of the request, Thea and the Newtons defied OCS and transferred the children to Thea, after which the Newtons left town for a number of weeks. On November 3, 2010, Thea was arrested for driving while intoxicated on aleohol and Xanax with Zach and Abbie in her car. She pleaded guilty to felony DUI and endangering the welfare of a minor and was sentenced to 34 months incarceration with 31 months suspended. She received four years of felony probation, forfeited her car, permanently lost her driver's license, was fined $10,000 with $7,500 suspended, and was ordered to participate in and graduate from mental health court. The children were not placed back with the Newtons; instead, they were placed with Thea's sister and her husband. As a result of her conviction, the mental health court referred Thea to treatment at Set Free Alaska, where she was assessed on March 28, 2011. During the assessment, she repeatedly "attempted to convince staff she did not need to go to [rlesidential [t}reatment and minimized issues." Thea denied having problems with alcohol or drug use, and she assessed her risk of relapse as low. The assessor, however, diagnosed Thea as being dependent on aleohol, sedatives, and cocaine. She categorized Thea as being in the "precontemplation" stage of treatment, assessed Thea's relapse potential as high, and categorized her motivation to participate in treatment as 100% external. The assessor recommended that Thea participate in high-intensity residential treatment. While awaiting admission to a residential treatment program, Thea was scheduled to begin outpatient treatment at Set Free Alaska on April 21, 2011. But a few days before her treatment was to begin, Thea was hospitalized for suicidal ideation. Her blood aleo-hol level at the time exceeded .250. Upon her release from the hospital, Thea began the outpatient treatment program, but she missed appointments from mid-May through mid-June due to yet another arrest, this time for driving with a revoked license, without insurance, and for avoiding an ignition interlock device. On August 8, 2011, Thea was discharged from Set Free Alaska for violating the program's rules. Her discharge summary graded her progress as "unsatisfactory" and referred her to residential treatment. Late in September 2011, after the termination trial had begun, Thea began residential treatment at Clitheroe Center. The program was to last 90 days, following which Thea would be required to complete an aftercare program. At the time, Thea admitted to having "a problem with aleohol and drugs," but she denied needing residential - treatment. She stated that she had entered the residential program at Clitheroe in part because it was required by the terms of her felony probation. III. PROCEEDINGS In March 2011, OCS filed a petition to terminate Thea's parental rights. Trial was held during two days in September and October 2011. Thea testified, as did her social worker and her counselor from Set Free Alaska. In addition, OCS supervisor Karen Morrison testified as an expert regarding the risks of placing children with parents who have substance abuse problems and the ef-feets on children of delayed permanency. The Tribe, which had intervened in the proceeding early on, participated in the termination trial through its non-attorney tribal representative, Clara Henry. Following the trial, the superior court terminated Thea's parental rights to Zach and Abbie. Thea appeals the termination order. She contests the superior court's findings that OCS made active efforts to preserve her family, that her continued custody of the children would likely result in their suffering serious emotional or physical harm, and that termination of her parental rights is in the children's best interests. IV. STANDARD OF REVIEW A trial court's determination that OCS made active, but unsuccessful, efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of an Indian family presents a mixed question of fact and law. We review factual findings under the "clearly erroneous" standard and conclusions of law-such as whether the trial court's findings satisfy the requirements of ICWA-de novo. Findings are clearly erro neous "if a review of the entire record in the light most favorable to the party prevailing below leaves us with a definite and firm conviction that a mistake has been made." A trial court's determination that a parent's continued custody of a child will likely result in the child suffering serious emotional or physical damage is a factual finding that we review for clear error. A trial court's decision to admit expert testimony is reviewed for an abuse of discretion. 'We will find that the trial court abused its discretion if, after reviewing the record as a whole, we are left with a definite and firm conviction that the trial court erred. Whether expert testimony presented at trial satisfies the requirements of ICWA is a legal question that we review de novo. A trial court's determination that termination of parental rights is in a child's best interests is a factual finding that we review for clear error. v. DISCUSSION A. The Superior Court Did Not Err In Determining That OCS Made Active But Unsuccessful Efforts To Provide Services And Programs To Prevent The Breakup Of The Family. Thea argues that the superior court erred in finding that OCS made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of her family, as required by ICWA. She does not discuss the court's finding or the evidence supporting it; instead she argues that the court erred by entering its finding without taking into account assertions made by the Tribe in its closing argument. Thea's argument fails for several reasons. First, her argument is unpersuasive because it does not address the trial court's finding or the evidence supporting it. The record provides abundant support for the trial court's finding that OCS provided Thea and her family with active reunification efforts. These efforts consisted of multiple case plans; multiple referrals for substance abuse evaluations and support for treatment programs; multiple referrals for mental health evaluations and counseling; medical, dental, and mental health services for the children; regular family contact between Thea and the children; and a trial home visit. Thea seems to argue that despite the evidence demonstrating that OCS provided these numerous services over the years that this case was pending, the trial court could not properly have found OCS's reunification efforts to be adequate without addressing certain claims made by the Tribe in its closing argument. But Thea is incorrect in light of an examination of the Tribe's arguments. The Tribe's first claim was that, early in the case, OCS delayed in holding a placement decision meeting and in obtaining paternity testing. The Tribe asserted that by these actions OCS hindered the Tribe's ability to advocate for the children to be placed with paternal relatives. But even if the Tribe's assertions were accurate, this argument goes to placement, not reunification efforts. Our caselaw establishes that placement is a separate issue from active efforts, and that the two issues must be analyzed separately. The exception to that rule-under which a placement decision may be relevant to an active efforts analysis-applies when a child's placement directly impacts a parent's ability to participate in remedial efforts. That exception is not implicated here. Indeed, in this case OCS placed the children with the Newtons at Thea's request so that the family could remain close, in order to support family contact, which was a core element of Thea's case plan. The Tribe also claimed that OCS's efforts were flawed because the agency delayed in obtaining mental health services for the children. But the record does not support this allegation. Instead, the record reflects that the children received appropriate mental health services throughout the duration of the proceedings. Finally, Thea's argument fails because her allegation that the trial court ignored the Tribe's closing argument is rebutted by the court's statements on the record that "[the parties at trial included . the Native Village of Kotzebue," and "the parties submitted closing argument briefing . and the Court has reviewed all those arguments." The trial court did not err in finding that OCS provided Thea with active efforts to prevent the breakup of her family. B. The Superior Court Did Not Err In Finding That Thea's Continued Custody Would Likely Result In The Children Suffering Serious Emotional Or Physical Harm. Thea argues that the superior court erred in finding that the children would likely suffer serious emotional or physical damage if returned to her care. She raises two challenges to the finding, which, by the terms of ICWA, must be supported by evidence beyond a reasonable doubt, including the testimony of one or more qualified expert witnesses. First, Thea argues that OCS supervisor Karen Morrison was not qualified to testify as an ICWA expert because (1) Morrison was not an expert in Native culture, and (2) as an employee of OCS, Morrison was unable to testify neutrally. Second, Thea argues that even if Morrison satisfied the qualifications to testify as an ICWA expert, her testimony was flawed because it was based solely on her review of the OCS file and the trial exhibits and was not sufficiently specific to this case. 1. The superior court did not abuse its discretion in qualifying Karen Morrison to testify as an expert witness for purposes of ICWA. a. Morrison's lack of expertise in cultural matters did not preclude her from testifying as an ICWA expert. ICWA requires that before a court may terminate parental rights, the court must find "beyond a reasonable doubt . that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." The finding, which must be supported by expert testimony, requires proof that the parent's conduct is unlikely to change and will likely cause serious harm to the child in the future. These elements may be proved through the testimony of one or more expert witnesses, or by aggregating the testimony of lay and expert witnesses. The strict standard of proof required for this finding reflects Congress's goal to prevent the breakup of Native families "solely on the basis of testimony from social workers who lack[] the familiarity with Native culture necessary to distinguish between 'the cultural and social standards prevailing in Indian communities and families' and actual abuse or neglect." A witness may be qualified to testify as an expert under ICWA based on the witness's personal experiences or professional expertise in Native culture. But: When the basis for termination is unrelated to Native culture and society and when any lack of familiarity with cultural mores will not influence the termination decision or implicate cultural bias in the termination proceeding, the qualifications of an expert testifying under § 1912(F) need not include familiarity with Native culture.[ ] In the present case, OCS supervisor Morrison was qualified to testify as an expert without a showing that she was an expert in Native culture. Instead, her expertise was in the effects of substance abuse on families and the effects of delayed permanency on children. Our decisions indicate that, in general, cases involving issues of parental substance abuse do not implicate cultural mores. Thea does not argue that her case is different, and she points to nothing to suggest that cultural issues or cultural bias played a role in OCS's actions, in expert witness Morrison's testimony, or in the superior court's decision to terminate her rights. The superior court thus properly allowed Morrison to testify as an expert despite her lack of expertise in Alaska Native culture. b. Thea has waived her argument that Morrison was disqualified from testifying as an ICWA expert because of her status as an employee of OCS. Thea's brief contains a single sentence alleging that Morrison should have been precluded from testifying as an ICWA expert because, as an OCS employee, she "lacked the impartiality and outside neutrality that the ICWA expert is supposed to provide." Thea points to nothing in the record, nor does she cite any legal authority, to support this allegation. As such, Thea's argument is inadequately briefed and thus is deemed waived. 2. The superior court's finding that the children would suffer harm if returned to Thea's custody was supported by sufficient evidence. Thea argues that the superior court's finding that her continued custody would likely result in serious harm befalling the children was not supported by sufficient evidence. She limits her argument to complaints about Morrison's expert testimony, averring specifically that the testimony was defective because (1) Morrison based her testimony on a review of the OCS file and trial exhibits, having had no personal interactions with Thea or the children, and (2) Morrison's testimony was "overly generalized" and not grounded in the specific facts and issues of this case. Both arguments are based on this court's decision in C.J. v. State, Department of Health & Social Services and its companion case, J.J. v. State, Department of Health & Social Services, Division of Family & Youth Services. Neither argument has merit. As to the first argument, it is well settled that an ICWA expert may testify based on a review of documents in the record, without having had any personal contact with the parties, as long as the witness's testimony is grounded in the facts and issues specific to the case before the court. Thea's argument is based on an erroneous interpretation of our decisions in C.J. and J.J. and is an argument that we have repeatedly rejected in the past. As to the second argument, the expert's testimony in this case was grounded in the specific facts and issues facing this family. Witnesses other than Morrison established that Thea struggled with a longstanding alcohol abuse problem that was sometimes coupled with domestic violence; that she was locked in a repetitive cycle of abusing substances, participating in treatment, experiencing a period of sobriety, and relapsing; that she had twice been convicted of driving while intoxicated with her children in her car; and that her potential for future relapses into abusive behaviors was high. Thea does not challenge this testimony. Morrison then testified that children living with a parent who exhibited this conduct were at risk of harm. She testified that such a lifestyle is particularly alarming for children who are present when their parent is arrested for DUI or who witness the parent's involvement in domestic violence, both of which occurred in this case. She noted that issues facing children who live with such parents include not "know[ing] when their mom's going to be sober, if the mom's going to be able to take care of them, if they're going to be safe, if mom's going to make sure they have all their needs met." In addition, because parents who are in denial about an unsafe situation are unlikely to protect their children from the dangers it poses, Morrison expressed particular concern about Thea's recent statement that she did not require treatment. In summary, Morrison testified that given this family's history, if Zach and Abbie were returned to Thea's care, they would be likely to suffer serious emotional or physical harm. In reviewing a trial court's finding that a parent's continued custody poses a future risk of harm to a child, we are mindful that "ICWA does not require that the experts' testimony provide the sole basis for the court's conclusion; ICWA simply requires that the testimony support that conclusion." Regarding expert testimony in particular, "the issues are whether the expert disregarded or was unaware of contrary evidence, and whether the testimony was so vague and generalized that the trial court clearly erred in according weight to it." Thea points to no evidence to contradict the lay testimony establishing her ongoing substance abuse and her relapse potential, and her conclusory statement that Morrison's testimony was "overly generalized" is not supported by the record. Aggregating the testimony of all the witnesses, substantial evidence demonstrated beyond a reasonable doubt that Thea's pattern of substance abuse was unlikely to change, and that those behaviors would place a child in Thea's eustody at serious risk of physical or emotional damage. Thus, the superior court did not err in finding, beyond a reasonable doubt, that Zach and Abbie would likely suffer serious physical or emotional damage if Thea were to retain custody of them. C. The Superior Court Did Not Err In Finding That Termination Of Thea's Parental Rights Was In Zach's And Abbie's Best Interests. Alaska Statute 47.10.088(c) requires that a court considering whether to terminate a parent's parental rights must "consider the best interests of the child." Alaska Child in Need of Aid Rule 18(c)(8) provides that before a court may terminate a parent's rights, the court must find "by a preponderance of the evidence that termination of parental rights is in the best interests of the child." Neither the statute nor the rule defines best interests, but guidance is found in AS 47.10.088(b), which lists five factors "relating to the best interests of the child" that a court may evaluate in determining whether a parent has timely remedied conduct or conditions that endanger a child. The face-tors are not exclusive, nor is consideration of each factor mandatory. In addition, we have noted that the "best interests" finding required by AS 47.10.088(c) and CINA Rule 18(c)(8) requires a more comprehensive judgment than does determining whether the parent has timely remedied endangering conduct or conditions. Nevertheless, in an appropriate case, the factors listed in AS 47.10.088(b) provide a logical beginning for a trial court's consideration of best interests under AS 47.10.088(c). Here, the trial court addressed each of the listed factors. First, given Thea's history, the court found little likelihood that the children could be returned to her care "within a reasonable time based on their age and need." Second, the court found that although Thea had participated in substance abuse treatment programs multiple times over the course of the case, her motivation was "simply to make the Court happy." She disagreed with the recommendations of her current treatment provider, her probation officer, and OCS that she required residential treatment, and she was in denial about the period of sobriety she had demonstrated leading up to the termination trial. Third, the court found that Thea's behaviors had harmed the children by causing them trau ma, subjecting them to removal from their home three different times, requiring them to experience their mother's incarceration, experiencing physical danger at the hands of an intoxicated driver, and, at least as to Zach, being exposed to domestic violence. Fourth, the court analyzed Thea's history and found that Thea had neither remedied, nor made significant progress in remedying, her substance abuse addiction and that given her history, "there [was] a . strong likelihood that this harmful conduct [would] continue." Finally, the superior court recounted in detail Thea's history of harmful conduct. We have held that "a superior court may consider 'any fact relating to the best interests of the child' in its best-interests analysis," and that the superior court need not accord a particular weight to any given factor. The superior court's analysis in this case conformed to this approach. The court did not stop its analysis with the AS 47.10.088(b) factors but went on to note that Zach and Abbie, who had been traumatized and were in need of trusting relationships, were presently living with Thea's sister and her husband in a safe and protective pre-adoptive relationship. The court observed that the children were reported to be doing well in this home. The court noted that the children had been in OCS's custody for 29 months, a significant portion of their lives, and that further delays in permanency would cause them additional traumas. The superior court also considered Thea's conduct, noting that even though she understood that OCS would not tolerate her abuse of substances around her children, she physically endangered the children by driving intoxicated with them in her car. The court noted that not only had Thea failed to remedy her substance abuse behavior but she had made no significant progress toward that end and had demonstrated that she was not inclined to change those behaviors. The superior court observed that Thea's ongoing abusive behaviors were likely to result in the children suffering serious emotional or physical damage. This case resembles J.H. v. State, Department of Health & Social Services, in which we affirmed the superior court's best interests finding based on evidence that the mother had repeatedly returned to using drugs following her unsuccessful attempts at treatment. In J.H., the mother, like Thea, "remained at high risk of returning to substance abuse." There, we noted that there was "little doubt that a relapse by [the mother] would have placed [the child] at risk had she been returned to her mother's home." And in Hannah B., we recognized that a child's need- for permanence and stability should not be sacrificed indefinitely in order to allow the child's parents to rectify circumstances that placed their child in danger. The evidence presented to the superior court supported the court's finding that termination of Thea's parental rights, in order to free Zach and Abbie for adoption, was in the children's best interests. The superior court thus did not err in making that finding by a preponderance of the evidence. The dissent argues that the superior court erred because additional evidence, not presented to the court, might have demonstrated that a permanency goal other than adoption-presumably a goal such as guardianship or placement with a fit and willing relative-would have better served the children's interests. The dissent is correct in noting that state and federal laws allow CINA cases to be resolved through permanency outcomes other than reunification or adoption But as we have held, the law does not require a court, in the context of a termination proceeding, to consider alternative outcomes, "except to the extent that the statute requires the court to order an arrangement that is in the child's best interest." Indeed, in Dashiell R. v. State, Department of Health & Social Services, Office of Children's Services, we expressly rejected a father's argument that it was error to find that termination of his parental rights was in his children's best interests because the children would likely remain with their paternal grandparents even if the father's parental rights were terminated. We concluded that because the grandparents' custody would be temporary, the children would remain "under the cloud of continuing uncertainty, [and] the children's need for permanence and seeu-rity would not be met." Similarly, in Hannah B., we rejected the mother's argument that the superior court's best interests finding was erroneous because the child was placed with his maternal grandmother, who supported reunification with the mother, In affirming the superior court's best interests finding, we noted that it was "very uncertain whether Hannah would be able to assume responsibility for Jacob, given the significant amount of treatment remaining and her pattern of relapse following residential treatment." Like Hannah, Thea has demonstrated a repeated pattern of relapse following treatment and, at a minimum, has a significant amount of treatment remaining before reunification could even be considered. Thea asserts that in some cases a child's best interests require preserving rather than severing ties to an unfit parent. While such cases may exist, this is not one of them. Zach and Abbie have been in OCS's custody-in effect, in limbo-for nearly two and one-half years, waiting for Thea to act responsibly and step into her role as their parent. These children are not teenagers, on the verge of making their way in the world. They are children who require the guidance and direction that is best provided in a loving, stable family headed by functioning, trustworthy parents. After years of living in uncertainty, these children are finally in a position to be adopted into a permanent family with competent, stable parents, a resolution not available to them under any permanency goal other than adoption. Preserving Thea's parental rights, in order to ensure maintenance of the children's ties to her, would continue to expose the children to Thea's potentially dangerous behaviors and would deprive them of the chance to become part of a permanent, stable family. As the superior court noted, trust is very important for children, as is a sense of permanency, and the lack of this trust and stability may be traumatic and may heighten the risk that a child will engage in antisocial behaviors. The dissent argues that the superior court lacked pertinent information when it found that termination of Thea's parental rights was in her children's best interests. We appreciate the concern that the trial court did not hear about the children from their former or current caregivers or, more importantly, from their therapist. Such testimony, when available, is likely to result in a better-informed decision by a trial court called upon to decide whether to terminate a parent's rights. But here, the superior court based its decision on a preponderance of all of the evidence presented to it. OCS presented sufficient evidence to demonstrate that termination of Thea's rights would serve her children's best interests. Thea declined the opportunity to present any contrary evidence despite her current argument that such evidence was indispensable to the trial court's decision. We thus cannot conclude that based on the record before it, the trial court clearly erred in determining that termination of Thea's rights was in the best interests of Zach and Abbie. Compelling evidence was presented to the trial court that continued custody of the children by Thea would likely result in serious emotional or physical damage befalling them. Evidence was also presented that termination of their parent's rights would provide the children with the opportunity to be welcomed into a permanent, stable family. Absent evidence to the contrary, termination of Thea's parental rights was in the best interests of the children. The trial court's finding is affirmed. D. Thea's Remaining Arguments Are Without Merit. Thea's brief contains several arguments in addition to those addressed above. She argues that the superior court erred by failing to solicit, sua sponte, 12-year-old Zach's preferences regarding termination of Thea's rights or to appoint counsel to represent Zach in the termination proceedings. But these matters, which are properly within the superior court's discretion, were not raised in that court. Thea has not alleged or demonstrated that the superior court committed plain error on these matters, so these arguments are not properly before us. Finally, Thea argues that the trial court erred in allowing the children's guardian ad litem, a non-attorney staff member of the state Office of Public Advocacy, to be "represented" by an OPA staff attorney during the termination proceedings. We reject this argument, noting that OPA, not a named individual, was appointed to act as the children's guardian ad litem in these proceedings. This is in accord with state law. We have reviewed the record and have found no impropriety in the actions of either OPA representative. VI. CONCLUSION For the reasons discussed above, the decision of the superior court terminating Thea's parental rights to her children, Zach and Abbie, is AFFIRMED. WINFREE and MAASSEN, Justices, not participating. CARPENETI, Justice, dissenting. . Pseudonyms are used throughout to protect the privacy of the parties. . 25 U.S.C. § 1901-1963 (2006). . Thea testified that she was raised in an alcoholic family and began drinking as a teenager, but that her drinking problems worsened after Zach was born. In addition to alcohol, her self-reported history of prescribed and non-prescribed drug use includes cocaine, marijuana, opioids, sedatives, and tranquilizers. . At the termination trial, Thea testified that she had been arrested multiple times for domestic violence and that each incident involved alcohol or drugs. . Lucy J. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 244 P.3d 1099, 1111 (Alaska 2010) (citing Sandy B. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 216 P.3d 1180, 1186 (Alaska 2009). . Id. (citing Marcia V. v. State, Office of Children's Servs., 201 P.3d 496, 502 (Alaska 2009). . Id. (citing Carl N. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 102 P.3d 932, 935 (Alaska 2004)). . Brynna B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 88 P.3d 527, 529 (Alaska 2004) (quoting A.B. v. State, Dep't of Health & Soc. Servs., 7 P.3d 946, 950 (Alaska 2000) (internal quotation marks and citation omitted)). . Christina J. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 254 P.3d 1095, 1103-04 (Alaska 2011) (citing Barbara P. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 234 P.3d 1245, 1253 (Alaska 2010)). . Barbara P., 234 P.3d at 1253 (citing Lynden, Inc. v. Walker, 30 P.3d 609, 612 (Alaska 2001)). . Richard B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 71 P.3d 811 (Alaska 2003) (quoting Peter Pan Seafoods, Inc. v. Stepanoff, 650 P.2d 375, 378-79 (Alaska 1982) (internal quotation marks omitted)). . Lucy J., 244 P.3d at 1111 (citing Ben M. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 204 P.3d 1013, 1018 (Alaska 2009)). . Pravat P. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 249 P.3d 264, 270 (Alaska 2011) (citing Dashiell R. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 222 P.3d 841, 850 (Alaska 2009)). . 25 U.S.C. § 1912(d) (2006). . The Tribe joins Thea's brief on appeal, specifically as to this issue. . The superior court considered efforts made on Thea's behalf by the Department of Corrections and the mental health court, as well as those made by OCS. This is consistent with the language of ICWA, which does not specify that any particular entity must make active efforts, see 25 U.S.C. § 1912(d) (requiring a showing that "active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family"), and with our prior decisions. See, e.g., Jon S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 212 P.3d 756, 765 (Alaska 2009) (efforts made by a parent's parole officers count as active efforts for purposes of ICWA); Martin N. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 79 P.3d 50, 56 (Alaska 2003) ("While [a parent] is in prison, the Department of Corrections rather than [OCS] has primary responsibility for providing services to him{.]"). . See, eg., Roy S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 278 P.3d 886, 891 (Alaska 2012) ("[FJailure to follow ICWA's placement preferences cannot provide a basis for determining that OCS failed to undertake active efforts."); David S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 270 P.3d 767, 780 (Alaska 2012) ("[Pllacement decisions present a separate analytical question from termination decisions."). . David S., 270 P.3d at 779. . The superior court approved the non-relative placement, finding that OCS's objective constituted good cause to deviate from ICWA's placement preferences. . Thea provides no legal authority to support her implied assertion that the trial court must individually address every assertion made by a party in a closing argument, and we have never required the trial court to do so. . 25 U.S.C. § 1912(F) (2006). . Id. . Marcia V. v. State, Office of Children's Servs., 201 P.3d 496, 503 (Alaska 2009) (citing L.G. v. State, Dep't of Health & Soc. Servs., 14 P.3d 946, 950 (Alaska 2000)). , L.G., 14 P.3d at 950 (Alaska 2000). . Id. at 951 (citation omitted) (quoting 25 U.S.C. § 1901(5)). . Id. at 951-52. . Marcia V., 201 P.3d at 503. . Thea does not challenge Morrison's expertise in the specified areas, so we do not review her qualifications to testify as an expert on those topics. . See, e.g., Christina J. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 254 P.3d 1095, 1111 (Alaska 2011); Lucy J. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 244 P.3d 1099, 1118 (Alaska 2010); Marcia V., 201 P.3d at 503; L.G., 14 P.3d at 953-54. . In support of her allegation, Thea cites an online publication of the Native American Rights Fund. That publication contains a "Practice Tip" discouraging the use of an employee of an agency seeking termination of parental rights as an expert witness for ICWA purposes, but the practice tip explicitly concedes that using such an employee as an ICWA expert is "not prohibited by the ICWA." Native Am. Rionts Funp, A Practicat Guipe to tHE Inpian CHtto Werrare Act (online ed. rev. Sept. 2011) Practice Tip at Topic 14, Expert Witnesses, Question 14.7, http://narforg/icwa/ faq/expert.htm# Q7 (emphasis added). . See Frank E. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 77 P.3d 715, 719 n. 14 (Alaska 2003) (citing Martinson v. ARCO Alaska, Inc., 989 P.2d 733, 737 (Alaska 1999). . 18 P.3d 1214 (Alaska 2001). . 38 P.3d 7 (Alaska 2001). . See, e.g., Sandy B. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 216 P.3d 1180, 1192 (Alaska 2009); Ben M. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 204 P.3d 1013, 1020 (Alaska 2009). . E.g., Ben M., 204 P.3d at 1020; Marcia V. v. State, Office of Children's Servs., 201 P.3d 496, 507 (Alaska 2009); J.A. v. State, DFYS, 50 P.3d 395, 401 (Alaska 2002). . EA. v. State, Div. of Family & Youth Servs., 46 P.3d 986, 992 (Alaska 2002). . Ben M., 204 P.3d at 1020. . AS 47.10.088(b) provides: In making a determination under (a)(2) of this section, the court may consider any fact relating to the best interests of the child, including (1) the likelihood of returning the child to the parent within a reasonable time based on the child's age or needs; (2) the amount of effort by the parent to remedy the conduct or the conditions in the home; (3) the harm caused to the child; (4) the likelihood that the harmful conduct will continue; and (5) the history of conduct by or conditions created by the parent. . Karrie B. ex rel. Reep v. Catherine J., 181 P.3d 177, 186 (Alaska 2008). . In making this determination, the court took into account that the treatment program Thea began during the trial would require 90 days of residential treatment, followed by nine months of aftercare. . Hannah B. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 289 P.3d 924, 932 (Alaska 2012) (quoting Doe v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 272 P.3d 1014, 1025 (Alaska 2012)). . Id. at 933 (quoting Doe, 272 P.3d at 1025). . Additional support for the trial court's finding is provided by social worker Gardner's testimony that "the children are in dire need of permanency.... They should just be happy and peaceful and know a stable lifestyle. Have to worry about little kid problems like studying and stuff instead of where is my mom, is she in jail or is she relapsed," and by expert witness Morrison's testimony that the children would be at risk if they did not quickly achieve permanency, because they had been unsettled for so much of their lives, and "when you're unsettled and you don't know where you're going to be, you don't know if you're going back, you don't know if you're going to stay, you don't know who your parents are going to be and who's going to take care of you, that's a pretty scary situation to be in." . 30 P.3d 79, 87 (Alaska 2001). . Id. . Id. . 289 P.3d at 933 (quoting Kent V. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 233 P.3d 597 (Alaska 2010). . See, eg., AS 47.05.065, .10.080(c) & (I); 42 U.S.C. § 675(5)(C) (2006). . C.W. v. State, Dep't of Health & Soc. Servs., 23 P.3d 52, 57 (Alaska 2001). . 222 P.3d 841 (Alaska 2009). . Id. at 851. . 289 P.3d at 933-34. . Id. at 934. . We note that while Zach was 12 years old at the time Thea's rights were terminated, he was only nine when Thea's conduct caused OCS to remove him from her care. . Adoption requires termination of Thea's parental rights. See AS 25.23.130(a)(1); AS 47.10.088(a). . The dissent claims that evidence in the record demonstrates that Zach and Abbie were "strongly" or "extremely" bonded to Thea "just before" the termination trial, and that Zach "continually" expressed a fervent desire that the family be kept together. Yet the evidence cited by the dissent consists primarily of a permanency report authored by the children's guardian ad litem nearly a year and a half before the termination trial was held. In her more recent report, authored six months before the trial, the guardian ad litem stated that while the children "remain bonded with their mother . [t}hey cannot continue to wait" for her to become ready to parent them. This report went on to recommend that Thea's parental rights be terminated, so that Zach and Abbie could be adopted. In reaching this recommendation, the report stressed that these children "need permanency. They need stability, consistency and to always be safe-they cannot worry if their mother is going to start drinking again and if they are going to be removed from her again." . AS 25.24.310(c), 47.10.050(a).

10350808

In the Matter of D.D.S., a Minor Under the Age of Eighteen (18) Years. Date of Birth: 07/15/91

In re D.D.S.

1994-03-04

No. S-5687

160

166

869 P.2d 160

869

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:40:58.497062+00:00

CAP

Before MOORE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.

In the Matter of D.D.S., a Minor Under the Age of Eighteen (18) Years. Date of Birth: 07/15/91.

In the Matter of D.D.S., a Minor Under the Age of Eighteen (18) Years. Date of Birth: 07/15/91. No. S-5687. Supreme Court of Alaska. March 4, 1994. Dianne Olsen, Asst. Atty. Gen., Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for petitioner Department of Health & Social Services. Margi Mock and David B. Koch, Asst. Public Defenders, and John B. Salemi, Public Defender, Anchorage, for respondents M.S. and M.N. Before MOORE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.

3141

19807

OPINION MOORE, Chief Justice. INTRODUCTION This case involves a petition filed by the Alaska Department of Health and Social Services (Department) to terminate the parental rights of M.S. and M.N. over their child D.D.S. on the grounds of alcohol-related neglect. The issue presented is whether AS 47.37.210, which provides that "the registration and other records of [alcohol] treatment facilities shall remain confidential and are privileged to the patient," creates an eviden-tiary privilege in Child in Need of Aid (CINA) proceedings. At trial, the superior court denied the Department's motion for access to the parents' treatment records. The Department then filed a petition for expedited review with this court. We reverse the superior court's decision and hold that, to whatever extent AS 47.37.210 may be interpreted to create an evidentiary privilege, such privilege does not apply in CINA proceedings. FACTS AND PROCEEDINGS On October 13, 1991, the Alaska Department of Health and Social Services, Division of Family and Youth Services (DFYS) took custody of D.D.S., an Indian child as defined by the Indian Child Welfare Act, 25 U.S.C. § 1901-1963 (1988). This action was taken as a result of a police response to a disturbance call. The parents were found intoxicated, fighting, and unable to care for the child, then three months old. In addition, there was also evidence of a history of domestic violence. After DFYS assumed custody of the child, the parents agreed to participate in treatment for alcohol abuse. However, numerous attempts at treatment met with little success, as neither parent was able to complete an inpatient treatment program. Following these unsuccessful attempts at rehabilitation, the Department filed a Petition for Termination of Parental Rights on the ground that the parents' continued alcohol abuse made D.D.S. a child in need of aid. To prevail on this petition, the Department must make several showings. First, it must establish by clear and convincing evidence that D.D.S. is a child in need of aid pursuant to AS 47.10.010(a)(2), and that the offending parental conduct is likely to continue to exist absent the termination of parental rights. AS 47.10.080(c)(3). In addition, because the Indian Child Welfare Act is applicable, the Department must prove by evidence beyond a reasonable doubt, including that to be supplied by expert testimony, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. 25 U.S.C. § 1912(f) (1988). Finally, the Department must show that active efforts have been made to provide remedial services to the parents, but these efforts have been unsuccessful. 25 U.S.C. § 1912(d) (1988). Trial on the petition was set for May 1993. Prior to trial, the Department moved for access to the parents' alcohol treatment records from several programs in which the parents had participated. The Department's motion was based upon federal law, which permits a court to order access to the records of federally funded treatment programs upon a showing of good cause. 42 U.S.C.A. § 290dd-2(a), (b)(2)(C) (West Supp.1993). Superior Court Judge Peter Michalski denied the motion on the ground that AS 47.-37.210prohibited the release of the records. The Department then moved to continue the trial on the basis that it could not adequately protect the interests of the minor without the records. The court granted the continuance. The Department then filed a petition for review with this court, which was granted by order dated July 1, 1993. DISCUSSION At issue in this case is whether AS 47.37.210 bars the use of alcohol treatment records in the particular context of a CINA proceeding. This is a question of statutory interpretation subject to de novo review by this court. Zsupnik v. State, 789 P.2d 357, 359 (Alaska 1990). Alaska Statute 47.37.210 provides: Records of alcoholics and intoxicated persons. (a) Except as required by AS 28.35.-030(d),1[ ] the registration and other records of treatment facilities shall remain confidential and are privileged to the patient. (b) Notwithstanding (a) of this section, the director may make available information from patients' records for purposes of research into the causes and treatment of alcoholism. No information may disclose a patient's name. (Emphasis added). The Department first argues that AS 47.-' 37.210 does not create an evidentiary privilege because its enactment did not comply with the requirements of article IV, section 15 of the Alaska Constitution. The Department failed to raise this argument below, and the superior court did not rule upon this question. We therefore deem the argument waived and decline to address the issue. Gates v. City of Tenakee Springs, 822 P.2d 455, 460 (Alaska 1991); see also Whitney- Fidalgo Seafoods, Inc. v. Beukers, 554 P.2d 250, 251 n. 1 (Alaska 1976) (declining to address issue not addressed by trial court in case heard on petition for review). The Department alternatively contends that an alcohol treatment privilege, if recognized, should not apply in child protection proceedings. We find this argument persuasive and conclude that, even if AS 47.37.210 may fairly be interpreted to create such an evidentiary privilege, this privilege is inapplicable in CINA proceedings. There can be no question that the Department's interest in protecting the children of this state is compelling in nature. This compelling interest is reflected in several enactments of the Alaska Legislature. For example, AS 47.17.010-.020 requires practitioners of the healing arts, including social workers and paid employees of substance abuse treatment centers, to report any suspected eases of child abuse or neglect to the Department. In cases arising from such a report, AS 47.17.060 expressly abrogates the physician-patient and husband-wife privilege. The purpose of these provisions, as stated by the Legislature, is to provide protective services in an effort to (1) prevent further harm to the child; (2) safeguard and enhance the general well-being of children in this state; and (3) preserve family life unless that effort is likely to result in physical or emotional damage to the child. AS 47.17.010. Similarly, the testimonial privilege pertaining to domestic violence victim counseling, provided under AS 25.35.100, does not apply to reports of suspected child abuse or neglect made pursuant to AS 47.17 or to CINA proceedings under AS 47.10. AS 25.35.110(1), (6). By enacting the Alaska CINA Rules in 1987, this court has also recognized the State's strong interest in protecting and preserving the well-being of the children of this state. These rules, applicable to the termination proceeding at issue here, govern practice and procedure in all CINA proceedings brought under AS 47.10.010(a)(2). CINA Rule 1(b). CINA rules are to "be construed and applied to promote fairness; accurate fact-finding; the expeditious determination of children's matters; and the best interests of the child...." CINA Rule 1(e). Thus, an affirmative duty is placed on the court to determine the best interests of a child who is the subject of a CINA proceeding. See Roth v. Roth, 793 S.W.2d 590, 592 (Mo.App.1990). Pursuant to this purpose, this court has promulgated CINA Rule 9(b), which provides that "[t]he physician and psychotherapist-patient privilege, Evidence Rule 504, and the husband-wife privileges, Evidence Rule 505, do not apply in Child in Need of Aid proceedings." This rule evinces the court's intent to give greater protection to the interests of an allegedly neglected or abused child than to the interest of the child's parents in confidentiality. It also reflects our view that the trial court should have access to all pertinent evidence relating to such abuse or neglect in determining the best interests of the child. See Roth, 793 S.W.2d at 592 (pursuant to duty to ascertain best interests of child, the judge "should . have at his/her disposal all available pertinent evidence"); In re the Adoption of Embick, 351 Pa.Super. 491, 506 A.2d 455, 460-61 (1986) (in an involuntary termination case, the court must examine all evidentiary resources and conduct full and comprehensive hearing). It would be illogical, in light of the State's compelling interest in protecting the welfare of its children and the court's affirmative duty to determine the best interests of the child, to give greater protection to alcohol treatment records than we give to confidential communications between a physician and his or her patient. We therefore place any evidentiary privilege pertaining to alcohol treatment records under AS 47.37.210 on the same footing as the physician and psychotherapist-patient privileges, which under Rule 9(b) are abrogated in CINA proceed ings. See In re Gigi B, 71 Misc.2d 176, 335 N.Y.S.2d 535, 539 (Fam.Ct.1972) (placing statutory privilege for drug addiction treatment records on same footing as doctor-patient, husband-wife, and social worker-client privileges, which, under New York law, are abrogated in abuse and neglect proceedings). Our decision is further supported by CINA Rule 1(f), which governs those situations not expressly covered by the CINA Rules. The rule provides: Where no specific procedure is prescribed by these rules, the court may proceed in any lawful manner, including application of the Civil Rules, applicable statutes, the Alaska and United States Constitutions or the common law. Such a procedure may not be inconsistent with these rules and may not unduly delay or otherwise interfere with the unique character and purpose of child in need of aid proceedings. CINA Rule 1(f) (emphasis added). As discussed above, exclusion of alcohol treatment records in the "unique" setting of a CINA proceeding would interfere with the court's duty to examine all pertinent evidence in determining the child's best interests and would be inconsistent with the expressed intent of the CINA rules to give greater protection to the welfare of the child than to the parents' confidentiality interests. Our decision is also consistent with the approach suggested by Dean Wigmore. Wigmore states that four criteria must be met to justify an evidentiary privilege: (1)The communications must originate in a confidence that they will not be disclosed. (2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties. (3) The relation must be one which in the opinion of the community ought to be sedulously fostered. (4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. 8 John H. Wigmore, Evidence § 2285, at 527 (McNaughton's rev. ed. 1961) (emphasis omitted). According to Wigmore, "[o]nly if these four conditions are present should a privilege be recognized." Id. We find that Wigmore's fourth requirement for the recognition of an evidentiary privilege, i.e., that the injury resulting from disclosure must outweigh the benefit thereby gained from the correct disposition of the issue before the court, clearly is not met in the CINA context. Using Wigmore's approach, we conclude that the benefits of protecting a child who is the subject of a CINA proceeding outweigh any injury to a parent's statutory right to maintain the confidentiality of his or her alcohol treatment records. See Embick, 506 A.2d at 461 (citing Wigmore in support of conclusion that statutory psychologist-client privilege did not apply in proceeding to terminate parental rights); see also Perry v. Fiumano, 61 A.D.2d 512, 403 N.Y.S.2d 382, 385 (1978) ("Wigmore's test surely has relevance in a custody proceeding"). Therefore, we are satisfied that the statutory alcohol treatment privilege must yield in a CINA proceeding where a parent's alcohol abuse is at issue. This is particularly true in light of the fact that, under the CINA rules, the proceedings are closed to the public and the records of such proceedings are confidential. CINA Rules 3(e), 22. These rules minimize any intrusion into the parents' confidentiality rights resulting from such disclosure. Our conclusion is also consistent with ease law from other jurisdictions. For example, in Embick, 506 A.2d 455, a Pennsylvania court addressed the applicability of a statutory psychologist-client privilege to a proceeding to terminate parental rights. Relying in part on Wigmore's analysis, the court concluded that the statutory privilege must give way in the termination context. Id. at 461. The court noted that "[i]t would be anomalous to insist that the hearing court examine all evidentiary resources, conduct a full and comprehensive hearing, and, at the same time, deprive the hearing court of material testimony concerning the mental or emotional condition of the natural parents." Id. In reaching this conclusion, the court relied on Perry v. Fiumano, 61 A.D.2d 512, 408 N.Y.S.2d 382 (1978). Embick, 506 A.2d at 461. In Perry, the court held that a statutory social worker-client privilege did not apply in a child custody proceeding. Perry, 403 N.Y.S.2d at 386. Recognizing that, under New York law, this privilege (along with the husband-wife and physician-patient privileges) did not apply in child protective proceedings, the parents nonetheless argued that, "absent a legislative expression prohibiting the exercise of a privilege in custody cases, the courts should not judicially impose such a limitation." Id. at 385-86 (emphasis added). The court, however, disagreed, stating that the statutory provision abrogating the privilege in the child protection context was enacted "to help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-be-ing_" Id. at 386 (quoting § 1011 of the New York Family Court Act). The court also noted that New York law did not require a social worker to treat as confidential any communication which revealed the contemplation of a harmful act. Id. The court found that these statutes evinced the legislative intent to protect "the health, safety and welfare" of the children of the state. Id. Thus, the court concluded that "we do not find it an impermissible encroachment upon the legislative function to hold that . the rule of privilege protecting such communications must yield to the 'dominant . duty of the court to guard the welfare of its wards.' " Id. (citations omitted). Similarly, in In re Baby X, 97 Mich.App. 111, 293 N.W.2d 736 (1980), the court ordered production -of substance abuse records in a neglect proceeding, despite a state statute which provided that such records were confidential. The statute permitted a court to order only the disclosure of whether a specific person was in treatment with an agency. Id. at 740 n. 4. The court, however, found the records admissible, concluding that "in neglect proceedings, confidentiality must give way to the best interests of the child." Id. at 741; see also DeBlasio v. DeBlasio, 187 A.D.2d 551, 590 N.Y.S.2d 227, 228 (1992) ("we conclude that the defendant's interest in preserving confidentiality must yield to the paramount interest of protecting the well-being of the parties' young child"). In support of its decision, the Baby X court cited a Michigan statute which required health care professionals to report suspected cases of abuse or neglect. Baby X, 293 N.W.2d at 739. CONCLUSION Based on the above analysis, we conclude that AS 47.37.210 does not establish a privilege precluding the admission of alcohol treatment records in a CINA proceeding. However, under federal law, these records may be disclosed only upon a showing of "good cause." 42 U.S.C.A. § 290dd-2(a), (b)(2)(C) (West Supp.1993). In determining good cause, "the court shall weigh the public interest and the need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment services." Id. § 290dd-2(b)(2)(C). At trial, the superior court concluded that the treatment records sought by the State were privileged under AS 47.37.210. The court therefore did not reach the' issue of whether the Department had established "good cause" as required under the federal statute. We now reverse the superior court's determination that the records at issue were privileged under AS 47.37.210. We remand to the superior court for a determination on the "good cause" issue under 42 U.S.C.A. § 290dd-2 and for further proceedings consistent with this opinion. REVERSED AND REMANDED. BURKE, J., not participating. . Federal regulations implementing this statute specifically allow states to grant greater privacy protections than those provided under federal law. The regulations state that "[i]f a disclosure permitted under these regulations is prohibited under State law, neither these regulations nor the authorizing statutes may be construed to authorize any violation of that State law." 42 C.F.R. § 2.20 (1992). . AS 28.35.030(d) requires treatment programs to provide the court with information regarding those persons who, as part of a sentence for driving while intoxicated, are ordered to take part in such programs. .This provision reads: The supreme court shall make and promulgate rules governing the administration of all courts. It shall make and promulgate rules governing practice and procedure in civil and criminal cases in all courts. These mies may be changed by the legislature by two-thirds vote of the members elected to each house. Alaska Const, art. IV, § 15 (emphasis added); see also Leege v. Martin, 379 P.2d 447, 451 (Alaska 1963) (stating that, under article IV, § 15, "a legislative enactment will not be effective to change court rules of practice and procedure unless the bill specifically states that its purpose is to effect such a change"). . AS 47.17.060 provides: Evidence not Privileged. Neither the physician-patient nor the husband-wife privilege is a ground for excluding evidence regarding a child's harm, or its cause, in a judicial proceeding related to a report made under this chapter. . The physician and psychotherapist-patient privileges are set forth in Evidence Rule 504. We note that under Rule 504(a)(3)(B), the term "psychotherapist" is defined to include licensed or certified psychologists engaged in the diagnosis or treatment of alcohol addiction. Alaska R.Evid. 504(a)(3)(B). We also take note of the official comment to section 15 of the Uniform Alcoholism and Intoxication Treatment Act, from which AS 47.37.210 derives. The treatment of privileged information in the courts and disclosure with the consent of the patient are matters of general state law. Unif. Alcoholism and Intoxication Treatment Act § 15 cmt., 9 U.L.A. 102-03 (1988) (emphasis added). In construing the meaning of legislation derived from uniform codes, this court has often relied on the official code commentary as a guide to legislative meaning. See, e.g., Northern Commercial Co. v. Cobb, 778 P.2d 205, 207 n. 2 (Alaska 1989). In this case, we conclude that the legislature intended the alcohol treatment privilege to be treated in like manner and be subject to the same exceptions as other similar evidentia-ry privileges provided under general state law.

10427011

STATE of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Appellant, v. A.C., Appellee

State, Department of Health & Social Services v. A.C.

1984-06-22

No. 7643

1131

1135

682 P.2d 1131

682

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:41:21.126759+00:00

CAP

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

STATE of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Appellant, v. A.C., Appellee.

STATE of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Appellant, v. A.C., Appellee. No. 7643. Court of Appeals of Alaska. June 22, 1984. Donald W. Edwards, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellant. John Reese and Craig J. Tillery, Reese, Rice & Volland, Anchorage, for amicus curiae, the Superior Court of Alaska. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

1954

11894

OPINION COATS, Judge. This case involves the authority of the superior court to order and supervise the placement of a delinquent child under the provisions of AS 47.10.080(b)(3). A.C. was adjudicated a delinquent on November 14, 1982. Alaska Statute 47.10.080 governs the authority of the court to enter orders in cases where a minor child has been adjudicated a delinquent. That statute provides in part: (a) The court, at the conclusion of the hearing, or thereafter as the circumstances of the case may require, shall find and enter a judgment that the minor is or is not a delinquent or a child in need of aid. (b) If the court finds that the minor is delinquent, it shall (1) order the minor committed to the Department of Health and Social Services . [which] shall place the minor in the juvenile facility which the department considers appropriate and which may include a juvenile correctional school, detention home, or detention facility; the minor may be released from placement or detention and placed on probation on order of the court and may also be released by the department, in its discretion, under AS 47.10.200; (2) order the minor placed on probation, to be supervised by the department, and release him to his parents, guardian, or a suitable person; if the court orders the minor placed on probation, it may specify the terms and conditions of probation; (3) order the minor committed to the department and placed on probation, to be supervised by the department, and release him to his parents, guardian, other suitable person, or suitable nondetention setting such as a family home, group care facility, or child care facility, whichever the department considers appropriate to implement the treatment plan of the predisposition report; if the court orders the minor placed on probation, it may specify the terms and conditions of probation; the department may transfer the minor, in his best interests, from one of the probationary placement settings listed in this paragraph to another, and the minor, his parents or guardian and attorney are entitled to reasonable notice of the transfer; (5) order the minor committed to the Department of Health and Social Services for placement in an adventure-based education program established under AS 47.21.020 with conditions the court considers appropriate concerning release upon satisfactory completion of the program or commitment under (1) of this subsection if the program is not satisfactorily completed. At a hearing before the superior court standing master, the Department of Health and Social Services recommended a disposition under AS 47.10.080(b)(3). The department's plan called for A.C. to be committed to the legal custody of the department and to be physically placed with his mother. The plan provided that if A.C. did not abide by the terms of his probation, the department would then change his physical placement to a group home. The superior court master agreed with the department that the court should order disposition under AS 47.10.080(b)(3). However, the master found that the department's plan was not in the best interests of the child and that A.C. should be placed in a group treatment facility. The master concluded that although the court did not have authority under AS 47.10.080(b)(3) to order placement in a particular foster home or group home, it did have authority to direct removal from parental care or an out-of-home placement when removal was in the best interests of the child. Judge Victor Carlson approved the master's findings. He concluded that the master was correct in finding that AS 47.10.080(b)(3) provides the court with authority to determine whether the minor should be placed at home or in a non-detention facility approved by the department, although the department would decide which non-detention facility was in the best interests of the child. The Department of Health and Social Services has appealed this ruling, arguing that AS 47.10.080(b)(3) authorizes the court to order the minor committed to the department. It is then up to the department to determine whether the delinquent minor should be placed with his parents, with some other suitable person or in a non-detention facility. This issue is technically moot. Before the superior court's ruling in this case, the department removed A.C. from placement with his mother and placed him in a non-detention facility. The department made this latter placement based upon events which occurred after the detention hearing in front of the superior court master. A.C. therefore has no further interest in this appeal. However, the Department of Health and Social Services has asked us to review this issue, and an amicus curiae was appointed to brief the position of the superior court. We have concluded that this is an issue of great significance in juvenile hearings which may occur repeatedly and yet evade review. Johansen v. State, 491 P.2d 759, 762 (Alaska 1971). We have accordingly decided the issue. It appears to us that in enacting AS 47.10.080(b)(3), the legislature intended for the department to make the decisions concerning placement of the minor. We note that the statute does provide for the court to "order the minor committed to the department," and that "the department may transfer the minor, in his best interests, from one of the probationary placement settings listed in this paragraph to another." The fact that the department has the authority to move the minor from one placement to another, without prior permission of the court, is consistent with the department having the authority to determine an appropriate placement. It is important that the statute does not provide that the department only has the power to move a minor to another placement if there are exigent circumstances which would make prior court approval difficult. In fact, AS 47.10.080(b)(3) does not specifically mention any judicial review of the department's decision or specifically provide for notice to the court. However, AS 47.10.-080(b)(3) does provide for reasonable notice to the minor's parents or guardian, the minor himself and the minor's attorney. This notice requirement, particularly the notice to the attorney, allows those parties to seek superior court review of the department's actions. Furthermore, the court has an obligation to review all of the cases where a minor is being supervised by the department under court order. Alaska Statute 47.10.080(f) provides: A minor found to be delinquent or a child in need of aid is a ward of the state as long as he is committed to the department or the department has the power to supervise his actions. The court shall review an order made under (b) or (c)(1) or (2) of this section annually, and may review the order more frequently to determine if continued placement, probation, or supervision, as it is being provided, is in the best interest of the minor and the public. The department, the minor, the minor's parents, guardian, or custodian are entitled, when good cause is shown, to a review on application. If the application is granted, the court shall afford these parties and their counsel reasonable notice in advance of the review and hold a hearing where these parties and their counsel shall be afforded an opportunity to be heard. The minor shall be afforded the opportunity to be present at the review. We conclude that AS 47.10.-080(b)(3) provides the court authority to order the delinquent minor placed on probation to the Department of Health and Social Services. It is then up to the department to determine whether the minor should be placed with his parents or in another setting. We also conclude that the superior court has the authority to review the decision of the department to determine if the placement is in the best interest of the minor. However, in reviewing a decision of the department, the superior court may not substitute its judgment for the judgment of the department. Since the legislature has committed the decision of placement to the department's discretion, the question for the court is whether the agency abused its discretion. In reviewing this case, we are unable to tell whether Judge Carlson substituted his own judgment for that of the Department of Health and Social Services, or whether he determined that the agency abused its discretion in placing A.C. at home with his mother. Normally, therefore, we would remand the case to Judge Carlson so that we could ensure that he applied the appropriate standard. However, it is unnecessary for us to remand this case because it is moot.

10426963

Kevin FARRELL, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee

Farrell v. Municipality of Anchorage

1984-06-22

No. A-165

1128

1131

682 P.2d 1128

682

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:41:21.126759+00:00

CAP

Before BRYNER, C.J., SINGLETON, J., and FULD, District Court Judge.

Kevin FARRELL, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.

Kevin FARRELL, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. No. A-165. Court of Appeals of Alaska. June 22, 1984. James T. Robinson and David W. Carney, Smith, Robinson & Gruening, Anchorage, for appellant. James Ottinger, Asst. Mun. Atty., Allen M. Bailey, Mun. Prosecutor, and Jerry Wertzbaugher, Mun. Atty., Anchorage, for appellee. Before BRYNER, C.J., SINGLETON, J., and FULD, District Court Judge. Fuld, District Court Judge, sitting by assignment made pursuant to article IV, section 16 of the Constitution of Alaska.

1799

11386

OPINION BRYNER, Chief Judge. After a jury trial, Kevin Farrell was convicted of driving while intoxicated (DWI), in violation of AMC 9.28.020(A). He appeals, contending that the district court erred in denying his pretrial motion to suppress evidence that the police obtained on the night of his arrest. We conclude that Farrell was not given a reasonable opportunity to contact his attorney, and therefore reverse. Farrell was arrested for DWI at about 1:00 a.m. on January 29, 1983, and he was taken to the Anchorage police station for a breathalyzer test. At the station, Farrell was placed in the custody of Officers Lyons and Long. At approximately 2:00 a.m., Farrell asked for permission to call his attorney, James Robinson. He was allowed to make the call. During Farrell's conversation with Robinson, however, Officer Long stood next to Farrell and took notes. Farrell asked to be allowed to speak privately with Robinson, but Officer Long refused. When Robinson learned that the police were listening to Farrell's conversation, he asked Farrell to put Officer Long on the line. Robinson asked Long to allow him to speak privately with his client. Long again refused. Robinson told Farrell that he would come to the police station immediately. Farrell hung up the telephone and told the officers that his attorney was coming. He requested to speak with his attorney before taking the breathalyzer. The officers refused Farrell's request. Farrell was immediately placed in front of a video camera, and the officers attempted to have him perform sobriety tests. Farrell repeatedly requested to talk to his attorney, and his requests were repeatedly refused. Ultimately, Farrell agreed to perform sobriety tests on video, but he refused to take the breathalyzer without first seeing his attorney. Farrell's attorney apparently arrived at the Anchorage police station while Farrell was being videotaped. He asked to speak with Farrell but was denied permission. When Robinson arrived at the station, Farrell had been on videotape for approximately ten or fifteen minutes and had not yet refused to take the breathalyzer. More than ten minutes elapsed between Robinson's arrival and completion of the videotape. Farrell was originally charged with both DWI and refusal to take the breathalyzer test. Prior to trial, Farrell moved to suppress all evidence obtained after police denied him the opportunity to speak privately with Robinson. District Court Judge John D. Mason granted Farrell's suppression motion with respect to the charge of refusal to take the breathalyzer but denied it with respect to the DWI charge. During trial the jury viewed the videotape of Farrell and heard evidence of Farrell's refusal to take the breathalyzer. Farrell argues that this evidence should have been suppressed because he was not afforded a reasonable opportunity to consult privately with his attorney. AS 12.25.-150(b) provides: Immediately after an arrest, a prisoner shall have the right to telephone or otherwise communicate with his attorney and any relative or friend, and any attorney at law entitled to practice in the courts of Alaska shall, at the request of the prisoner or any relative or friends of the prisoner, have the right to immediately visit the person arrested. Criminal Rule 5(b) is substantially similar to AS 12.25.150(b), but specifically provides for a "private" visit. In Copelin v. State, 659 P.2d 1206 (Alaska 1983), the Alaska Supreme Court held that AS 12.25.150(b) and Criminal Rule 5(b) require that, upon request, persons arrested for DWI must be given a reasonable opportunity to contact an attorney before taking the breathalyzer examination: [W]hen a person is arrested for operating a motor vehicle in violation of state or local drunken driving ordinances, and requests to contact an attorney, AS 12.25.-150(b) and Alaska Criminal Rule 5(b) require that the arrestee be afforded a reasonable opportunity to do so before being required to decide whether or not to submit to a breathalyzer test. Where, as here, the arrestee is denied that opportunity, subsequently obtained evidence must be suppressed . Copelin, 659 P.2d at 1208. Copelin also makes it clear that, in order to comply with the statutory mandate of AS 12.25.150(b), police must make a reasonable effort to accomodate an arrestee's right to consult privately with counsel once a call has been made. Copelin states: [T]here is nothing in the language of the statute [AS 12.25.150(b) ] which suggests any limitations on the type or nature of communication which an arrestee may have with his attorney following arrest. In fact, in Eben, this court noted: "[W]e caution that to the extent deemed appropriate in light of the circumstances, law enforcement officials should administer AS 12.25.150(b) in a manner which will permit a prisoner to communicate in privacy with his attorney, relative or friend." [Eben v. State, 599 P.2d 700, 710 n. 27.] By recommending that private communication be allowed where feasible, this court implicitly recognized that the opportunity to consult and communicate with an attorney and to receive legal advice was also a contemplated purpose of the statute. Copelin, 659 P.2d at 1210 (footnote omitted). Certainly, the police cannot guarantee privacy in all circumstances. The degree of privacy a person should be given to communicate with counsel must be determined by balancing the individual's statutory right in consulting privately with counsel against society's strong interest in obtaining important evidence. Copelin recognizes that the statutory right to contact and consult counsel is a limited one, which must not interfere with the taking of an accurate and timely breathalyzer test. Copelin, 659 P.2d at 1211-12. Specifically, Copelin attaches paramount importance to the breathalyzer operator's need to maintain continuous observation of the arrestee for at least twenty minutes prior to the administration of the breathalyzer test. See Alaska Administrative Code § 30.-020(b)(2). Moreover, in determining the extent of privacy that is reasonable in a given case, consideration should be given to the confidentiality of the attorney-client communications, and not to the separation of the arrestee from the arresting officers. Thus, while the statutory right to contact and consult counsel requires reasonable efforts to assure that confidential communications will not be overheard, observation of the arrestee may be maintained, and physical segregation or visual isolation is not required. Precisely what measures should be deemed reasonable will necessarily depend upon the circumstances of the individual case. See Copelin, 659 P.2d at 1212. However, we believe that Copelin's requirement of a "reasonable opportunity" to contact counsel is not met when the police make no effort whatsoever to give a person who has been arrested for DWI a reasonable amount of privacy once he has contacted an attorney. In the present case, it is unnecessary for us to decide what steps the police should have taken to assure Farrell a reasonable opportunity to speak privately with Robinson. It is uncontested that during Farrell's telephone conversation with his attorney, Officer Long stood next to Farrell and took notes on the conversation. Despite specific requests by both Farrell and Robinson, the police failed to make even a minimal effort to accomodate Farrell's right to communicate privately with his attorney. We therefore hold that Farrell was deprived of his right, under AS 12.25.150(b) and Criminal Rule 5(b), to a reasonable opportunity to contact his attorney. All evidence subsequently obtained by police from Farrell, including Farrell's refusal to take a breathalyzer test and the videotape of his conduct, must therefore be suppressed. See Copelin v. State, 659 P.2d at 1215. The conviction is REVERSED and the case is REMANDED. COATS, J., not participating. . The municipality subsequently dismissed the charge of refusal to take the breathalyzer. . In Yerrington v. Anchorage, 675 P.2d 649, 654 (Alaska App.1984), we held that the supreme court's decision in Copelin applies retroactively. Copelin thus applies to Farrell's case. . In a somewhat similar context, this court has recognized that the scope of privacy accorded to an attorney-client conversation must in part depend upon the reasonable expectations of the client. See Blackmon v. State, 653 P.2d 669, 671 (Alaska App.1982). In Blackmon, we held that when a defendant in custody makes reasonable efforts to communicate privately with his attorney, the prosecution will be precluded from admitting evidence of any statements that were overheard. Id. at 672. Blackmon indicates that when privacy cannot be assured by other reasonable steps, it may be sufficient to inform the defendant that his conversation with counsel will not be used in evidence against him. Blackmon also implies a duty on the part of the accused to act reasonably. When a person who has been arrested for DWI refuses to speak with his attorney despite reasonable assurances of privacy, no violations of AS 12.25.150(b) and Criminal Rule 5(b) will occur. Similarly, the statutes will not be violated if a defendant's conversation with his attorney is overheard because of unreasonable conduct by the defendant. In many cases it may be possible for an attorney to minimize the risk of a client's communications being overheard simply by posing specific questions that the client can respond to with yes or no answers. . Farrell also argues that AS 12.25.150(b) was violated when his friend and his attorney were denied an immediate visit with him after they arrived at the pólice station. The express language of AS 12.25.150(b) provides for an immediate visit with counsel following an arrest. Where, as here, an attorney arrives at the police station while field sobriety tests or a breathalyzer examination are in progress, a serious question is raised about the extent to which the statutory right to an immediate visit necessitates interruption of ongoing investigative efforts. In the present case, the factual record sheds little light on the extent to which investigative efforts would realistically have been interrupted if Farrell's counsel had been permitted to have immediate contact with Farrell. The briefs cf the parties also contain little information that would enable us to make an informed decision as to whether it was reasonable for police to wait until completion of field sobriety testing before allowing Farrell to visit with his attorney. Since our decision on Farrell's primary argument makes it necessary, in any event, to suppress all evidence obtained by police after Farrell's telephone call to his attorney, we decline to reach the issue of whether the failure to allow an immediate visit constituted a separate statutory violation.

11513575

Michael G. SILVERS, Appellant, v. Irene L. SILVERS, Appellee

Silvers v. Silvers

2000-04-14

No. S-8631

786

794

999 P.2d 786

999

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:43:19.422880+00:00

CAP

Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.

Michael G. SILVERS, Appellant, v. Irene L. SILVERS, Appellee.

Michael G. SILVERS, Appellant, v. Irene L. SILVERS, Appellee. No. S-8631. Supreme Court of Alaska. April 14, 2000. Danny W. Burton, Wasilla, for Appellant. William K. Walker, Anchorage, for Appel-lee. Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.

4136

25313

OPINION MATTHEWS, Chief Justice. I. INTRODUCTION Michael Silvers appeals the superior court's entry of judgment against him for both conversion of personal property and liability on a series of loans from his mother, Irene Silvers. We reverse and remand. II. FACTS AND PROCEEDINGS Irene L. Silvers advanced money to her son, Michael G. Silvers, several times between March 7, 1983, and October 22, 1991. Michael repaid Irene only partially for these advances. Over time, Irene and her domestic companion, Garfield Funnell, also stored several items of personal property at Michael's Was-illa residence. Funnell died intestate in 1993. Michael eventually sold his house and directed Irene to remove her possessions from the premises. Under Michael's observation, Irene retrieved various items. A subsequent inventory of the personal property revealed that numerous items belonging to Irene had disappeared. On August 9,1996, Irene recorded a notice of right to lien against Michael's Wasilla residence to secure repayment of her loans. In response, Michael filed a complaint against Irene on August 19, 1996, seeking to expunge the notice of lien. Irene's answer asserted counterclaims for repayment of the advanced funds and conversion of her missing personal property. The superior court granted a preliminary injunction expunging Irene's claim of lien, leaving only her counterclaim's at issue for trial. At trial, Irene appeared pro se. Michael, who had relocated to Washington state, did not appear. The superior court issued its findings of fact and conclusions of law, ruling in relevant part that (1) Irene's monetary advancements to Michael constituted an open-ended "family loan," under which Michael had assumed a good faith obligation to repay the funds when able; (2) due to the nature and context of the loan, the applicable statute of limitations did not bar Irene's claim for repayment; and (3) Michael had converted several items belonging to Irene. The court established Michael's combined liability for both the loan and the conversion at $27,410.01 and entered judgment for Irene in this amount. Michael moved for relief from judgment or alternatively to amend judgment. The court amended its findings and conclusions to clarify its previous ruling, but ultimately denied Michael's motion. Michael appeals. III. JURISDICTION Irene challenges the court's jurisdiction to hear this appeal because the appeal was not filed within thirty days of judgment. Irene contends that Michael's motion for relief from judgment was filed under Alaska Civil Rule 60(b) and therefore did not terminate the time for filing appeals in civil eases. But we conclude that Michael's motion was also a Civil Rule 59(f) motion to alter or amend a judgment, thus terminating the time for appeal. Accordingly, Michael's notice of appeal, filed within thirty days of the superior court's ruling on the motion, was timely. IV. DISCUSSION A. Did the Superior Court Abuse Its Discretion by Refusing to Allow Michael and His Witness to Appear Telephon-ically? We first consider whether the superi- or court committed reversible error by rejecting Michael's request to appear at trial telephonieally. We review the trial court's ruling on this question for abuse of discretion. Reversal is warranted only if we are left with a definite and firm conviction, after reviewing the entire record, -that a mistake has been made. Michael had relocated to Washington state before the trial began. He submitted a motion under Civil Rule 99 requesting permission for himself and his witness Alice Beals to testify telephonieally at trial. The superi- or court had previously granted Irene's request to permit the telephonic appearance of her witnesses, and Irene herself agreed to permit Michael's telephonic testimony. The superior court denied Michael's motion, however, explaining that evaluating Michael's credibility required in-court observation. Michael elected not to attend the trial and thus did not participate personally in the proceedings below. He now argues that the court abused its discretion by rejecting his request to appear telephonieally. The visual demeanor of a witness can be a factor in evaluating the witness's credibility. But, in a variety of circumstances, the court will dispense with visual demeanor. For example, under exceptions to the hearsay rule, the court will admit a declarant's statement without the declarant's presence, making do without any visual demeanor. Similarly, under Civil Rule 32, a witness's deposition can be introduced in court. Particularly relevant here is Civil Rule 32(a)(3)(B), which provides that the deposition of a witness — including a party witness — may be used for any purpose at trial if the witness is more than 100 miles from the place of trial or is out of state. Thus, Michael could have presented his testimony by deposition (without visual demean- or) and the superior court would have had no discretion to exclude Michael's deposition testimony. Civil Rule 99 provides that "[t]he court may allow one or more parties . to participate telephonically in any hearing or deposition for good cause and in the absence of substantial prejudice to opposing parties." Although the rule allows the trial court some discretion, in Carvalho v. Carvalho, we voiced our preference for a liberal application of Rule 99. Carvalho involved a mother's collection action for child support arrear-age. The trial court denied the father's request to appear telephonically at an evi-dentiary hearing and entered judgment for the mother without accepting any evidence from the father. We reversed the trial court's ruling, holding that the court's refusal to permit the father to testify or present other evidence regarding contested facts had violated his due process right to a meaningful opportunity to be heard] We thus concluded that, because of both the father's availability to testify and the desirability of allowing him to present his defenses, the trial court had abused its discretion by failing to permit his telephonic testimony. Similarly, in the present case, we believe that the superior court should have allowed Michael's requested telephonic appearance. Michael was residing in Washington state at the time of trial and would have incurred significant expense in returning to Alaska to testify. Since the circumstances justified presenting Michael's testimony by deposition without visual demeanor, and since Irene agreed to his participation by telephone, it was an abuse of discretion to deny Michael's request for telephonic appearance. The trial court could also have advised Michael that if there were credibility issues for which his demeanor was truly critical, those issues might be resolved against him. For these reasons, we remand this ease for a new trial in which Michael can participate by telephone if he so chooses. .We also address the parties' other contentions since, in light of our remand, the superior court may again face them. B. Could Irene Recover on the Loans? Irene advanced funds to Michael periodically from March 1983 until October 1991. She filed her counterclaim against Michael for repayment of the loans on September 9, 1996. Michael argues that the loan contract failed for indefiniteness and that the applicable six-year statute of limitations barred Irene's recovery of those funds advanced before September 1990. We address each of these contentions in turn. 1. Does the contract fail for indefiniteness? Michael first argues that his contract with Irene was impermissibly indefinite. He contends that the absence of a specific time of repayment term in Irene's loan agreement caused the entire contract to fail. Because contract interpretation involves questions of law, we review this issue de novo. Michael's argument lacks merit. A pledge to repay money when the borrower becomes financially able merely represents a conditional promise and is legally enforceable upon satisfaction of the condition. Such contracts do not fail for indefiniteness. Accordingly, the limitations period began to run only after Michael actually achieved the ability to repay Irene. 2. Does the statute of limitations bar Irene's claims? In its findings and conclusions, the superi- or court addressed the statute of limitations issue as follows: A contract was entered into between the parties in the context of a family loan, and as such, should be interpreted within the circumstances of a loan from a mother to a son. It was expected and anticipated by the Defendant and Plaintiff understood that he was to repay the loan when he was in a position to do so; therefore, the statute of limitations did not apply, and the parties were expecting to be operating in good faith. The superior court also found that "Evidence was presented during trial that Plaintiff did not repay said loan even though he has been in a position to do so, throughout the period of the loans." Michael subsequently moved for relief from judgment or alternatively to amend judgment, arguing that the superior court erred by refusing to apply the statute of limitations to Irene's claim. In response, the court explained its previous finding: [Ljoans must be interpreted in their full context. The context here was a set of loans from'mother to son, with an understanding that the loans would be repaid when the son was able to do so. The "due date" therefore was not a set date, but it also was not undefined: the loans were due when the son could pay them, which is a time which can be determined objectively. As such, the statute of limitations would only begin to run when the son in fact was able to pay back the loans. No testimony was presented that the son was able or had been able to pay back the loans on a certain date. Hence, the statute of limitations had not begun to run on the loans, and so the time limits imposed by the statute did not apply. Michael argues that the superior court's ruling was internally inconsistent. Emphasizing the "payable when able" nature of his. loan from Irene, Michael contends that the court's finding that he had been able to repay the debt "throughout the period of the loans" indicates that his status in this regard should have triggered the statute of limitations. The superior court's determination concerning Michael's ability to repay the loan involves a question of fact which we will reverse only if clearly erroneous. We find merit in Michael's argument. The superior court found that "Evidence was presented during trial that Plaintiff did not repay said loan even though he has been in a position to do so, throughout the period of the loans." The court's ruling is self-contradictory in this regard. The statute of limitations runs from the point at which Michael was able to repay the loans. But exactly when Michael attained the ability to repay Irene remains unclear from the record. Therefore on remand, the superior court should determine when Michael attained the ability to repay these loans and apply the statute of limitations from that date. C. Can Irene Recover the Full Value of the Converted Property That She Jointly Owned with Garfield Funnell? Many of the items of personal property at issue below belonged at least in part to Garfield Funnell, Irene's now-deceased domestic companion. Funnell died intestate before Irene asserted her conversion claim against Michael. The superior court found that Funnell and Irene either jointly acquired or intended to share ownership of the various items stored at Michael's residence. Characterizing Irene and Funnell as co-tenants of these possessions, the court permitted Irene to recover the property's full value in her conversion suit against Michael. Michael challenges this ruling, arguing that Funnell's heirs — as successor co-tenants in the property — were indispensable parties to the conversion action and that Irene's failure to join them should bar her claims. He asserts that he potentially faces double liability from Funnell's heirs. This issue involves a question of law to which we apply our independent judgment. "As a general rule, an owner of property must be joined as an indispensable party in any action that may adversely affect her interest in the property." Applying this principle to co-tenants depends upon the factual context of the case. In B.B.P. Corp. v. Carroll, we noted that "[tjenants in common are not always indispensable parties to litigation involving the property, particularly where the judgment will not directly affect the interests of the co-tenant." But "co-tenants should be joined where the right of any one tenant is not distinct and the relief sought is interwoven with the rights of the other tenants." The Montana Supreme Court's reasoning in Dew v. Dower illustrates the potential unfairness to both defendants and absent co-tenants that could result if joinder was not required in actions to recover jointly owned, indivisible personal property: Adopting a general rale that allows one co-tenant to sue for all of the damages could easily infringe on the rights of another co-tenant, thus creating due process problems. In addition, co-tenants are not generally agents of each other and do not have the privity necessary for application of the doctrine of res judicata. Therefore, a rule allowing one co-tenant to sue in a personal action for the entire amount of tort damages for injury arising out of the tenancy could expose defendants to multiple actions. But where a party fails to join a necessary party, the appropriate remedy is not dismissal, but rather joinder of the necessary party. Additionally, Irene should not be precluded from recovering her share of the value of the property. Under the terms of our Carroll test, Irene's one-half share is distinct from Funnell's and the relief Irene seeks is not necessarily interwoven with the relief which Funnell's heirs might seek. Michael will suffer no double liability since he will, at most, face liability for each half only once. Therefore, on remand, Irene has two options. She can join Funnell's estate as a party to this litigation or she can seek recovery for only her share. D. Does Substantial Evidence Support the Finding That Michael Converted Irene's Property? Michael also contends that the superior court erred in ruling that he had converted any of Irene's personal property. He argues that the record lacks any evidence of this purported conversion. We review a trial court's findings of fact for clear error. Our review is particu larly deferential in cases where most of the trial evidence consists of oral testimony. We view all of the evidence in the light most favorable to Irene as the prevailing party. "Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel." To establish a claim for conversion, the plaintiff must prove (1) that she had a possessory interest in the property; (2) that the defendant interfered with the plaintiffs right to possess the property; (3) that the defendant intended to interfere with plaintiffs possession; and (4) that the defendant's act was the legal cause of the plaintiffs loss of the property. Where the plaintiff voluntarily places her property with the defendant, the "defendant ordinarily is not required to do more than permit the plaintiff to come and get the chattel." But Irene may also recover under a theory of negligence. As with any negligence case, the plaintiff must establish (1) a duty of care; (2) breach of the duty; (3) causation; and (4) harm. Where the plaintiff transfers only the possessory interest in her property to the defendant, a bailment is created. The bailment creates a duty of care. Therefore, the bailee is liable for any loss caused by his failure' to exercise reasonable care. The plaintiff can establish a prima facie case of negligent bailment, or conversion in some jurisdictions, by proving that she delivered the property to the care of the defendant and that the defendant refused a timely request to return the property. Once the plaintiff has established a prima facie case, the defendant bears the burden of explaining his refusal to return the property, since the bailee is in the best position to explain the loss of the property. This standard was expressed as follows by the New Jersey appellate court in Lembaga Enterprises, Inc. v. Cace Trucking & Warehouse, Inc.: in a conversion action, the bailor has the burden to prove that the bailee has unlawfully converted the goods. When goods are delivered to a bailee in good condition and then are lost or damaged, the law presumes a conversion and casts upon the bailee the burden of going forward with the evidence to show that the loss did not occur through his negligence or if he cannot affirmatively do this, that he exercised a degree of care sufficient to rebut the presumption of it. Proof of loss of or injury to the goods while in the custody of the bailee establishes a prima facie ease against the bailee to put him upon his defense. This is so even though the burden of proof of the cause of action rests with the plaintiff and never shifts from him. Courts are divided as to whether delivery, demand, and refusal establish a prima facie ease of intentional conversion, or merely negligence. But this distinction is irrelevant for purposes of the present case. The remedy Irene seeks — compensatory damages — -is available under either theory. The trial court found that Irene left her belongings with Michael and that Michael failed to return some items. This evidence established a prima facie right to recovery for Irene, placing upon Michael the burden of explaining the loss. Michael failed to offer an explanation. But, as we have held above, Michael did not have a fair opportunity to make an explanation because he was not permitted to appear telephonically. V. CONCLUSION Because the superior court abused its discretion in refusing to permit Michael to appear telephonically at trial, the judgment is REVERSED. This case is REMANDED for further proceedings consistent with this opinion. . See Alaska R.App. P. 204(a)(1) ("The notice of appeal shall be filed within 30 days from the date shown in the clerk's certificate of distribution on the judgment appealed from . See Alaska R.App. P. 204(a)(3)[c]. Michael's motion was captioned "Motion for Relief from Judgment or Alternatively to Amend Judgment [Civil Rule 60(b)(1); Rule 59(f) ]" (brackets in original). . See Gregg v. Gregg, 776 P.2d 1041, 1044 (Alaska 1989) (reviewing for abuse of discretion trial court's allowance of party's telephonic testimony over opposing party's objection). . See Wright v. Shorten, 964 P.2d 441, 443 (Alaska 1998). . Michael was, however, represented by counsel at trial. . See Alaska R. Evid. 803, 804. . See Buster v. Gale 866 P.2d 837, 843 (Alaska 1994) (holding that superior court erred by excluding deposition of a witness living more than 100 miles from place of trial). . Alaska R. Civ. P. 99(a). . 838 P.2d 259 (Alaska 1992). . Id. at 259-60. . See id. at 260-63. . See id. at 263. . See id. at 262. . Former AS 09.10.050 established a six-year statute of limitations for contract actions. The statute was repealed in 1997, and AS 09.10.053 now provides for a three-year limitations period for contract cases. Because AS 09.10.053 applies only to causes of action which accrued after August 7, 1997, Irene's claims are governed by the former version of AS 09.10.050. See Ch. 26, § 3-4, 55, SLA 1997. . See State v. Arbuckle, 941 P.2d 181, 184 (Alaska 1997). . See, e.g., Smith v. Hargett (In re Clover's Estate), 171 Kan. 697, 237 P.2d 391, 395 (Kan. 1951); Annotation, When Statute of Limitations Commences to Run Against Promise to Pay Debt: "When Able," "When Convenient," or the Like, 28 A.L.R.2d 786, 788 (1953). . See, e.g., Clover's Estate, 237 P.2d at 395; Guerin v. Cassidy, 38 N.J.Super. 454, 119 A.2d 780, 783 (1955). . See, e.g., Estate of Page v. Litzenburg, 177 Ariz. 84, 865 P.2d 128, 134-35 (App.1993); Clover's Estate, 237 P.2d at 395; Guerin, 119 A.2d at 783; Pitts v. Wetzel, 498 S.W.2d 27, 28-29 (Tex.Civ.App.1973); see also In re Estate of Buckingham, 9 Ohio App.2d 305, 224 N.E.2d 383, 385 (1967) (characterizing this approach as the majority view). We decline Michael's invitation to adopt the minority approach under which the statute of limitations for "payable when able" contracts begins to run within a "reasonable time." See Ricker v. Ricker, 201 Or. 416, 270 P.2d 150, 153 (1954). .See Alaska R. Civ. P. 52(a); Walton v. Ramos Aasand & Co., 963 P.2d 1042, 1045 n. 2 (Alaska 1998). . See Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). . B.B.P. Corp. v. Carroll, 760 P.2d 519, 525 (Alaska 1988). . Id. (citing 3A James Wm. Moore et al., Moore's Federal Practice 1119.09[2] (2d ed.1987)). . Id. at 525-26 (citations and internal quotations omitted). 24. 258 Mont. 114, 852 P.2d 549, 557 (1993) (citations omitted). . See Alaska R. Civ. P. 19(a) ("If the person has not been joined, the court shall order that the person be made a party."); Carroll, 760 P.2d at 526 (appropriate remedy for failure to join indispensable co-tenants was not dismissal, but rather joinder of the co-tenants). . See Walton, 963 P.2d at 1045 n. 2. . See Martens v. Metzgar, 591 P.2d 541, 544 (Alaska 1979). . See Voss v. Brooks, 907 P.2d 465, 467 (Alaska 1995). . Alaska Continental, Inc. v. Trickey, 933 P.2d 528, 536 (Alaska 1997) (internal quotations omitted). . See Jensen v. Goresen, 881 P.2d 1119, 1122 (Alaska 1994). . Alaska Continental, 933 P.2d at 536 (quoting Restatement (Second) of Torts § 2370 cmt. g (1965)). . See Restatement (Second) of Torts § 224 cmt. b, illus. 1 (the bailee's negligent loss of bailment does not amount to conversion, but the bailee may be liable in an action for negligence). . See Lyons v. Midnight Sun Transp. Servs., Inc., 928 P.2d 1202, 1204 (Alaska 1996). . See Amidon v. State, 565 P.2d 1248, 1254-55 (Alaska 1977). . See C.J.M. Constr., Inc. v. Chandler Plumbing & Heating, Inc., 708 P.2d 60, 63 n. 4 (Alaska 1985). . See Burgess Constr. Co. v. Hancock, 514 P.2d 236, 239 (Alaska 1973); see also Colgate Palmolive Co. v. S/S Dart Canada, 724 F.2d 313, 317 (2d Cir.1983) ("Under New York law, a warehouse that fails to provide an explanation for its failure to return stored property is liable for conversion."); American Express Field Warehousing Corp. v. First Nat'l Bank, 233 Ark. 666, 346 S.W.2d 518, 521-22 (1961) (when the bailor proves delivery, demand, and refusal, "the law says that the bailee ha[s] converted the bailment unless the bailee goes forward with the proof and shows either (1) that the bailment was destroyed by fire without the negligence of the bailee, or (2) that the bailment was lost or stolen from the bailee without the negligence of the bailee."); George v. Bekins Van & Storage Co., 33 Cal.2d 834, 205 P.2d 1037, 1040 (1949) (in bank) (failure of the bailee to make delivery on demand constitutes prima facie case of conversion); American Equitable Assurance Co. of N.Y. v. Mussoline, 201 Pa.Super. 271, 191 A.2d 862, 865 (1963) (where bailee opens the trunk of his car and discovers the bailment (a mink coat) missing, these facts would be "sufficient to establish a prima facie case . which, if proved without more, would cast upon [the bailee] the burden of explaining what happened to the coat"). .See Burgess Constr. Co., 514 P.2d at 239; see also Joseph H. Reinfeld, Inc. v. Griswold & Bateman Warehouse Co., 189 N.J.Super. 141, 458 A.2d 1341, 1343 (Law Div.1983) (holding that the bailee is in the best position to explain the loss of the property); I.C.C. Metals, Inc. v. Municipal Warehouse Co., 50 N.Y.2d 657, 431 N.Y.S.2d 372, 409 N.E.2d 849, 854 (1980) (same). 38. 320 N.J.Super. 501, 727 A.2d 1026, 1029-30 (App.Div.1999) (citations omitted); see also 8A Am.Jur.2d Bailments § 239 (1997) ("In an action for conversion against the bailee, the bailor has the duty of proving that the bailment was delivered to the bailee, that due and seasonable demand was made on the latter for return of the property, and that the bailee could not or would not return the bailment. A prima facie case is made out by proof of the bailment and the subsequent failure or refusal of the bailee to make delivery on demand, and it is then incumbent on the bailee to go forward with the proof and show that the bailment was destroyed, lost, or stolen, without negligence by him or her, or that its failure to return the property was not the result of its conversion of the property to its own use." (footnotes omitted)). . See Refrigeration Sales Co. v. Mitchell-Jackson, Inc., 770 F.2d 98, 101-02 (7th Cir.1985) (noting this division in authority and citing cases in support of each view). . See id. at 102 ("Usually it makes no difference to the outcome whether the bailee is guilty of conversion or negligence....").

10403415

STATE of Alaska, Appellant, v. Keith V. PRICE, Appellee

State v. Price

1987-07-24

No. A-1910

476

483

740 P.2d 476

740

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:43:14.099706+00:00

CAP

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

STATE of Alaska, Appellant, v. Keith V. PRICE, Appellee.

STATE of Alaska, Appellant, v. Keith V. PRICE, Appellee. No. A-1910. Court of Appeals of Alaska. July 24, 1987. David Mannheimer, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellant. Paul E. Malin, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

4216

26998

OPINION BRYNER, Chief Judge. Keith V. Price was convicted after pleading no contest to a charge of assault in the first degree, a class A felony. AS 11.41.-200(a)(1). Price was subject to a seven-year presumptive sentence. AS 12.55.-125(c). Superior Court Judge Karl S. John-stone found a nonstatutory mitigating factor and referred Price's case to the three-judge panel. The panel accepted jurisdiction and suspended the imposition of Price's sentence on condition that he serve one year in jail and complete five years of probation. The state appeals, contending that the sentence is too lenient. We approve the sentence imposed by the panel. Price was convicted for an assault committed upon his girlfriend, Teresa Goode. At the time of the offense, Price was eighteen years of age; Goode was sixteen. Price had begun to suspect that Goode might be interested in another man. On the morning of September 11, 1985, he went to her home to confront her. He took with him a kitchen knife. The details of the assault that followed, as related by the presentence report, are undisputed: Mr. Price took a knife with him and shortly thereafter, an argument ensued. As they began wrestling, the defendant told Ms. Goode, "You'd better call an ambulance, I'm getting ready to kill you." The defendant then hit the victim several times and cut her with the knife in several places about the face, neck and shoulder area. Ms. Goode's sister, Lenore Goode, was home and tried to interrupt the fight. Teresa Goode was able to get past the defendant and ran outside. Ms. Lenore Goode went to the kitchen and attempted to telephone the police when Mr. Price entered the kitchen area, picked up another knife on the counter, and threatened to cut her if she called the police. They began struggling and Lenore Goode tried to get out of his grasp and was trying to run outside when he pushed her down the stairs. Meanwhile, Teresa Goode ran across the street and was trying to get a neighbor to open the door to help her. Mr. Price left the Goode house and saw Teresa Goode across the street. He went across the street toward her and when he saw that she was bleeding about the face and neck, he told her he would take her to the hospital. She refused. The defendant then picked the victim up and carried her to his car to take her to the hospital. Instead he drove her to the University of Alaska where his mother, Deleon Price, worked. He told Ms. Goode to stay in the car and went in to get his mother. He returned to the car with his mother and asked her to take Teresa Goode to the hospital. The defendant had his bicycle in the back seat of the car, took it out and rode off. Mrs. Price then took the victim to the hospital where she received treatment. Dr. Frank Moore treated Teresa Goode at Providence Hospital. According to the doctor, Teresa sustained injuries that included cuts on both sides of her face, one that required sutures. There were two cuts on her neck and one cut behind her ear on her scalp that took away part of the hair and skin. Later that day, Lenore Goode was examined at the hospital on Elmendorf Air Force Base. Her left wrist was fractured, which occurred when she was pushed down the stairs. When interviewed, Price readily admitted injuring Teresa and Lenore Goode, and he expressed remorse for his conduct. He stated that he had not intended to hurt Teresa or Lenore, but that "things just got out of hand." After entering his no contest plea to the charge of first-degree assault, Price appeared initially for sentencing before Judge Johnstone. Although Price was a first felony offender, he was subject to a seven-year presumptive term because he had used a dangerous instrument in committing the assault. See AS 12.55.125(c)(2). At the sentencing hearing, the state alleged no aggravating factors; Price alleged that his case was mitigated because his conduct was among the least serious within the definition of the offense. See AS 12.55.-155(d)(9). Judge Johnstone concluded, however, that the evidence failed to establish the existence of any statutory aggravating or mitigating factors. Relying on this court's decision in Smith v. State, 711 P.2d 561 (Alaska App.1985), Price argued alternatively that his favorable background and strong potential for rehabilitation amounted to a nonstatutory mitigating factor, which warranted referral of his case to the three-judge panel. Price's argument for referral to the three-judge panel was supported by substantial evidence. According to the presentence report, Price had never previously been convicted of a crime as an adult and had no history of delinquent behavior as a child. Although his parents divorced when he was only two years old, Price grew up in the stable family setting of his mother's home in California. The family moved to Anchorage in 1975. Price has one older brother, with whom he maintains close ties. At the time of the offense, Price still lived with his mother. According to his mother, Price's behavior had never previously been a problem. At the time of sentencing, Price's mother continued to be supportive of her son, and she expressed a desire to help him in any way possible. Price graduated from high school in June in 1985, only several months prior to his involvement in this case. Despite being diagnosed as having a learning disability, Price had maintained average grades in school. He was particularly enthusiastic about athletics and played on the varsity basketball team. Price was well liked as a student. Upon graduation, Price hoped to obtain additional training in carpentry. At the time of his arrest, Price was employed as a staff clerk at the Spenard Recreation Center. Pam Holsteen, a youth counselor, characterized him as a very good employee and indicated that he was reliable and responsible. In the year prior to his graduation, Price worked as a courtesy checker at two Anchorage grocery stores, and also held a job as a stocker at the Anchorage School District's science center. There is nothing in the record to suggest that Price has ever abused alcohol or drugs. Nor is there anything to indicate any history of violent behavior. Prior to sentencing, Price was examined by a psychologist, Dr. James Harper. Dr. Harper found "no evidence that Mr. Price is suffering from an Antisocial Personality Disorder that would set him at odds with society. He does not appear to reject authority, and in fact, is quite conventional in his attitudes and beliefs." According to Dr. Harper, Price shows no signs of being preoccupied with aggression or sexuality. Rather, his principal problem appears to be immaturity and lack of self esteem. These traits are, in particular, manifested in Price's lack of experience and confidence in forming relationships with others, particularly girls. Dr. Harper concluded that Price was amenable to treatment and that prison would not further Price's rehabilitation. Based on his findings, Dr. Harper recommended a suspended imposition of sentence, coupled with a course of counseling while on probation. Other evidence presented to Judge John-stone supported Dr. Harper's recommendation. Eleven members of the community, including the Deputy Chief of Police of the Anchorage Police Department, sent strong letters of support on behalf of Price, attesting to his good character and strong potential for rehabilitation. In addition, both of Price's victims, Teresa and Lenore Goode, testified in his behalf. Both indicated that their wounds had healed completely and that, with the exception of a small scar on Teresa's neck, neither had suffered any lasting effects, either physical or psychological. Neither victim expressed any fear of Price. Both believed that the time Price had spent in jail prior to sentencing was sufficient and that he should not be subjected to further incarceration. Evelyn Goode, the mother of Teresa and Lenore, expressed similar views. She indicated that she had never previously seen Price display any anger or violence. While she did not believe her daughter Teresa should continue to go out with Price, Evelyn Goode readily confirmed that neither of her daughters would have any fear of him if he were released. Evelyn Goode characterized the presumptive term of seven years as "far too harsh." Goode expressed the belief that Price had already served sufficient time, and she requested that he be released on the condition that he obtain counseling. The presentence report in effect accepted Dr. Harper's characterization of Price as a basically immature offender who had committed a serious but uncharacteristic act of violence and was amenable to rehabilitation. Although the report itself did not make a specific recommendation with respect to sentencing, at a subsequent hearing before the three-judge panel, the pre-sentence probation officer specifically concurred in the defense counsel's recommendation that Price be given a suspended imposition of sentence with no incarceration beyond the period he had served at that time. At the sentencing hearing before Judge Johnstone, the state did not seriously dispute the favorable information concerning Price and did not oppose Price's request for referral to the three-judge panel. While Judge Johnstone found that Price's conduct was as serious as, or somewhat more serious than, conduct typically involved in first-degree assault, the judge concluded that Price's background was unusually favorable and that his chances for successful rehabilitation were exceptionally good. Based on these considerations, Judge Johnstone found the presence of a nonstatutory mitigating factor and concluded that manifest injustice would result if the factor were not taken into account in sentencing. Accordingly, Judge Johnstone referred the case to the three-judge sentencing panel, stating that, while he would prefer to require some period of incarceration, he believed the presumptive term to be too long and thought that its imposition would thwart Price's rehabilitation. At the sentencing hearing before the three-judge panel, both parties relied on the record of proceedings before Judge John-stone. The state conceded the three-judge panel's sentencing jurisdiction, acknowledging that Price's potential for rehabilitation amounted to a nonstatutory mitigating factor and that manifest injustice would result if the nonstatutory factor were not considered. See AS 12.55.165-12.55.175. The state argued, however, that because referral to the panel had been based solely on the existence of a nonstatutory mitigating factor, the panel had no jurisdiction to reduce the presumptive term by more than fifty percent — the applicable limitation where the existence of a statutory mitigating factor permits an individual sentencing judge to make a downward adjustment to a seven-year presumptive term. See AS 12.-55.155(a)(2) (authorizing individual sentencing judges, without referral to the three-judge panel, to decrease presumptive terms of more than four years by up to fifty percent in light of statutory mitigating factors). The three-judge panel agreed that Price had established a nonstatutory mitigating factor. Rejecting the state's argument, the panel also found that it had jurisdiction to impose a sentence of less than three and one-half years. After expressly adopting Judge Johnstone's findings, the panel concluded that additional incarceration was not necessary for the purpose of Price's personal deterrence or rehabilitation. Nevertheless, the panel believed that the sentencing goals of community condemnation and general deterrence warranted a period of incarceration in addition to that which Price had already served (at that point, approximately six months). The panel thus suspended the imposition of Price's sentence on condition that he serve one year of imprisonment and complete five years of probation, with mandatory counseling while on probation. In response to the three-judge panel's sentence, the state initially petitioned this court for review, asserting the jurisdictional argument that it had raised below. The state asked us to find that, under AS 12.-55.155(a)(2), the three-judge panel had no authority to reduce a sentence by more than fifty percent where the applicable presumptive term exceeded four years and where the sole basis for referral to the three-judge panel was a nonstatutory mitigating factor. The state insisted that, in such cases, the panel did not obtain'jurisdiction to sentence below the fifty percent limit unless it entered an express finding that a sentence of fifty percent of the presumptive term would create manifest injustice. This court granted the state's petition for Review and rejected its jurisdictional argument, holding that, once it lawfully acquired jurisdiction of the case for sentencing purposes, the three-judge panel had authority under AS 12.55.165 and 12.55.175 to impose a term of less than fifty percent of the applicable presumptive sentence. See State v. Price, 730 P.2d 159, 160 (Alaska App.1986). Our decision, however, expressly authorized the state to bring a separate sentence appeal arguing that, even if the three-judge panel had authority to go below the fifty percent limit, it was clearly mistaken in the exercise of its discretion when it did so in the present case. Id. at 161. This sentence appeal followed. In it, the state raises the issue previously reserved. In its primary argument on appeal, the state urges us to fashion a judicial rule similar to the jurisdictional requirement we rejected in deciding the petition for review. Specifically, the state asks us to hold that in cases involving presumptive terms of more than four years, where a referral to the three-judge panel is based exclusively on a nonstatutory mitigating factor, the panel be enjoined from imposing a sentence below fifty percent of the presumptive term without an express finding that such a sentence is necessary to avoid manifest injustice. We find considerable merit in the state's argument. In Smith v. State, 711 P.2d 561 (Alaska App.1985), we held that referral to the three-judge panel is authorized in two situations: first, where imposition of the applicable presumptive term — whether adjusted or not — would result in manifest injustice; and, second, where manifest injustice would result from failure to consider an aggravating or mitigating factor that is not among those specifically enumerated by the legislature in AS 12.55.155(c) and (d). We recognized in Smith that these two situations are distinct and require separate consideration. When the three-judge panel deals exclusively with the second of these situations— namely, with a case in which the only basis for referral is a nonstatutory mitigating factor — its role is for all practical purposes similar to the role of the individual judge who is faced with the task of adjusting a presumptive term in light of statutory mitigating factors. Consideration of the individual sentencing judge's authority thus becomes relevant. Where a statutory mitigating factor has been established and the presumptive term exceeds four years, the individual judge can cause a sentence below fifty percent of the presumptive term to be imposed only by referral to the three-judge panel, based on an express finding that the reduced term is necessary to avoid manifest injustice. See AS 12.55.155(a)(2); AS 12.55.165. For its part, the three-judge panel in such cases is precluded from assuming jurisdiction and entering a term below the fifty percent threshold unless and until it expressly concurs in the individual judge's finding that the sentence is necessary to avoid manifest injustice. Because the existence of a nonstatutory mitigating factor effectively puts the panel in the shoes of the individual judge who is dealing with a statutory factor, parity in treatment between statutory and nonstat-utory mitigating factors will be achieved only if the panel makes an independent finding of manifest injustice before going under the fifty percent limit. In our earlier ruling on the state's petition for review, we held that the statutes delineating the three-judge panel's authority did not compel an independent finding of manifest injustice as a prerequisite to the panel's jurisdiction. State v. Price, 730 P.2d 159 (Alaska App.1986). The absence of this jurisdictional requirement, however, only underscores the need for the panel to exercise its discretion cautiously and consistently in dealing with nonstatutory mitigating factors. There is seemingly no rational justification for permitting the panel to exercise greater latitude with respect to nonstatutory mitigating factors than it enjoys with respect to statutory factors. There is no principled basis for imbuing nonstatutory mitigating factors with inherently greater weight than statutory factors. In Smith v. State, 711 P.2d at 570, we recognized that nonstatutory mitigating factors may warrant referral to the three-judge panel even though they may ultimately justify only a relatively minor adjustment of the presumptive term. Implicit in this observation is our view that nonstatutory factors are not inherently more worthy than their statutory counterparts. The importance of requiring a consistent approach to the treatment of both statutory and nonstatutory mitigating factors finds root in the policy of uniformity, which is central to Alaska's presumptive sentencing system. In Juneby v. State, 641 P.2d 823 (Alaska App.1982), modified on rehearing, 665 P.2d 30 (Alaska App.1983), we commented on the significance of uniformity as a sentencing goal, emphasizing the need for a cautious approach toward the adjustment of presumptive terms in light of aggravating and mitigating factors alike. After describing the narrow and structured provisions of our presumptive sentencing scheme, we said: When viewed in light of the fundamental goals of the new sentencing statutes, the rationale for this relatively inflexible sentencing framework is readily understood. If sentencing courts were permitted, under the presumptive sentencing scheme, to deviate routinely and substantially from the presumptive terms prescribed by law, the fundamental purposes of eliminating disparity and establishing reasonable uniformity in sentencing would be completely undermined. Unless the provisions of AS 12.55.155 [governing adjustment of presumptive terms for statutory aggravating and mitigating factors] are adhered to strictly, and unless a measured and restrained approach is taken in the adjustment of presumptive sentences for both aggravating and mitigating factors, then the prospect of attaining the statutory goal of uniform treatment for similarly situated offenders would quickly be eroded, the potential for irrational disparity in sentencing would threaten to become reality, and the revised code's carefully fashioned system of escalating penalties for repeat offenders would be rendered utterly ineffective. Juneby v. State, 641 P.2d at 833. To allow the three-judge panel to exercise a broader range of discretion in cases of nonstatutory mitigating factors than it exercised in cases of statutory factors, would serve only to promote the consequences against which we warned in June-by: the lack of uniform treatment for similarly situated offenders and the potential for irrational disparity. Thus, for purposes of future cases, we conclude that, when a case involving a presumptive term in excess of four years is referred to the three-judge panel on the sole basis of a nonstatutory mitigating factor, imposition by the panel of a sentence below fifty percent of the presumptive term will normally be deemed inappropriate and clearly mistaken unless the panel expressly concludes that such a sentence is required to avoid manifest injustice. Having adopted this guideline for future cases, we stop short of applying it in the present case. In the course of the proceedings below, the state never requested the three-judge panel to make an independent determination of whether manifest injustice would result from a sentence of three and one-half years' imprisonment— one half the seven-year presumptive term applicable to Price's case. The only argument advanced by the state challenged the panel's jurisdiction to undercut the fifty percent limit — an argument correctly rejected by the panel. In any event, although the issue is in our view an extremely close one, a finding that the sentence actually imposed was necessary to avoid manifest injustice would not be clearly mistaken under the peculiar circumstances of this case. The evidence pertaining to Price's background and prospects for rehabilitation provides strong support for the sentence imposed by the panel. Price was convicted for an act that appears to have been wholly uncharacteristic. He was an exceptionally youthful offender: the offense was committed within months of his eighteenth birthday. Price's conduct appears primarily to reflect his lack of maturity. Price's good school record, his active participation in sports, and his steady work history are all indicative of his basically good character, and there is nothing in his background to suggest any propensity toward violence or antisocial conduct. Price's amenability to rehabilitation was addressed by Dr. Harper, whose findings were accepted by both Judge Johnstone and the three-judge panel. These findings are undisputed in the record. Dr. Harper concluded that Price's rehabilitation would not be furthered by any time in jail. Moreover, the record establishes that Price will enjoy the benefit of strong family and community support in his efforts toward rehabilitation. In its remarks before the three-judge panel, the state expressly conceded that Price's potential for successful rehabilitation is excellent. The presentence probation officer who appeared before the three-judge panel specifically concurred with the view expressed by Price's counsel that no additional incarceration was necessary. While Price's conduct, in and of itself, may be as serious as, or somewhat more serious than, the characteristic conduct for first-degree assault, it is unrealistic to view his conduct in isolation. Price's conviction stemmed from a single episode of impulsive behavior that resulted in no lasting emotional or physical damage to his victims. Both of Price's victims, with the concurrence of their mother, testified that they had no fear of future harm from Price; both believed there was no need for his continued incarceration. The extraordinary confidence Price's victims placed in his capacity for rehabilitation is certainly a factor upon which the three-judge panel could properly rely in determining an appropriate sentence. In short, this is an unusual case in which the youthfulness of the defendant, his favorable background, and his excellent potential for rehabilitation have combined to convince virtually everyone involved in the sentencing process — including a psychiatrist, the presentence probation officer who dealt with the case, the victims, their mother, and numerous concerned members of the community — that no useful purpose would be served in requiring Price to spend more time in jail than he had already served prior to his sentencing hearing. Despite these unanimous recommendations, the three-judge panel expressly recognized that the interests of community condemnation and general deterrence required a substantial period of additional imprisonment. The panel accordingly ordered Price to serve a one-year term as a special condition of suspending the imposition of his sentence. While the suspended imposition of sentence will allow the conviction to be removed from Price's record should he successfully complete five years of probation, it also reserves the three-judge panel's authority to impose any sentence up to the statutory maximum term in the event Price's efforts at rehabilitation prove unsuccessful. The state contends that the one-year term, while possibly adequate for purposes of Price's rehabilitation and individual deterrence, does not sufficiently serve the purposes of community condemnation and general deterrence. Yet there is no reason to suppose that the one-year sentence of imprisonment in this exceptionally mitigated case will fail to deter other potential offenders, or that it unduly depreciates the seriousness of Price's conduct. While this sentence, overall, may be a lenient one, a one-year term of imprisonment is certainly not insubstantial. We cannot lightly presume that other potential offenders, or members of the community at large, will be incapable of perceiving the mitigated nature of this case. Moreover, to the extent that there is any doubt, the principle of parsimony clearly requires that the doubt be resolved in favor of a shorter, rather than a longer, sentence. See Pears v. State, 698 P.2d 1198, 1205 (Alaska 1985). Having independently reviewed the totality of the sentencing record, we conclude that the sentence imposed was not clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). The sentence is AFFIRMED. . When an appeal is brought by the state on grounds that the sentence imposed was too lenient, this court has authority only to express approval or disapproval of the sentence, and no actual increase of the sentence is permissible. See AS 12.55.120(b). . Price was also convicted of burglary for his entry of the Goode residence and of assault with respect to Lenore Goode. Because these cases did not involve a presumptive term, the three-judge panel did not exercise jurisdiction over them, and they were handled by Judge John-stone. The sentences imposed for these convictions by Judge Johnstone did not require Price to serve any additional period of incarceration. These sentences have not been challenged by the state and are not at issue here. . Moreover, although it appears from the totality of the sentencing record that the three-judge panel most likely did not separately consider whether a sentence below fifty percent of the presumptive term was necessary to avoid manifest injustice, the record is not entirely unambiguous, and it is at least arguable that the panel did in fact make a separate manifest injustice finding. Thus, in relevant part, Judge Shortell, in making findings on behalf of the panel, indicated that the panel had "made the determination that manifest injustice results from the imposition of the presumptive term and failure to consider pertinent factors in support of the rehabilitation of the defendant_" (Emphasis added).

11510677

STATE of Alaska, Petitioner, v. Lincoln D. ROBERTS, Respondent

State v. Roberts

2000-03-10

No. A-7159

151

155

999 P.2d 151

999

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:43:19.422880+00:00

CAP

Before COATS, Chief Judge, MANNHEIMER and STEWART, Judges.

STATE of Alaska, Petitioner, v. Lincoln D. ROBERTS, Respondent.

STATE of Alaska, Petitioner, v. Lincoln D. ROBERTS, Respondent. No. A-7159. Court of Appeals of Alaska. March 10, 2000. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Bo-telho, Attorney General, Juneau, for Petitioner. Marcia E. Holland, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, Public Defender Agency as amicus curiae. Before COATS, Chief Judge, MANNHEIMER and STEWART, Judges.

2245

13811

OPINION COATS, Judge. This case requires us to interpret a statute, AS 12.30.027, which governs the authority of the court to set conditions of bail release for a person charged with or convicted of a crime of domestic violence. We conclude the statute forbids the court to permit a person released on a charge or conviction of a crime involving domestic violence to return to the residence of his alleged victim. A jury convicted Lincoln Roberts of assault in the third degree, a class C felony, for assaulting M.J. in Venetie, Alaska. Judge Beistline sentenced Roberts to a three-year presumptive sentence. Roberts appealed his sentence and asked for bail release during the pendency of his appeal. Judge Beistline conducted a bail hearing and released Roberts to the custody of a third-party custodian, the Village Chief of Venetie. A few weeks following his initial release, Roberts requested a modification of his release conditions so that he could reside in the same residence with M.J., the victim of his assault. Before his arrest for the assault, Roberts and M.J. had been living together in a domestic relationship. They had a two-year-old daughter together. The state opposed the release modification, contending that AS 12.30.027 prohibited the court from allowing Roberts to reside with M.J. That statute provides that "[when] ordering release . of a person charged with or convicted of a crime involving domestic violence [the court] may not order or permit [the person so released] to return to the residence of the alleged victim or the residence of a petitioner who has a protective order directed to the person...." Roberts argued that the statute only restricted the court from permitting the release of a defendant to the residence of a victim who had obtained a protective order. Judge Beistline agreed with Roberts' interpretation. Judge Beist-line modified Roberts' conditions of release to allow Roberts to reside with M.J. based upon M.J.'s testimony that she wanted the judge to modify the release conditions so that Roberts could reside with her, and the assurances of the Village Chief that he would supervise Roberts and would report any violations of the conditions of release to the authorities. The state filed a petition for review in this court, arguing that Judge Beistline's order violated AS 12.30.027(b). We granted review. Following our granting of the petition for review, Roberts moved to dismiss the petition on the ground that it was moot because Roberts had violated his conditions of release and was in custody. Roberts also stated that since the case was moot, he would not be filing a brief. The state opposed dismissal, arguing that the case fell within the public interest exception to the mootness doctrine — that the issue was an important one which might otherwise evade review. We invited the Public Defender Agency to file an amicus brief.' The issue in this case is an appropriate one to resolve under the public interest exception to the mootness doctrine. Generally courts will not resolve an issue when it is moot — that is, when the decision of an issue will not resolve an ongoing case or controversy. The state concedes that the case before us is moot because Roberts is no longer on bail release under the disputed order. But the state argues that we should apply the public interest exception to the mootness doctrine. The public interest exception to the mootness doctrine provides that courts can resolve a dispute, even though it has become moot, when the issue is one of public interest which is capable of repetition and may repeatedly circumvent review: The public interest exception requires the consideration of three main factors: (1) whether the disputed issues are capable of repetition, (2) whether the mootness doctrine, if applied, may cause review of the issues to be repeatedly circumvented, and (3) whether the issues presented are so important to the public interest as to justify overriding the mootness doctrine. None of these factors is dispositive; each is an aspect of the question of whether the public interest dictates that a court review a moot issue. Ultimately the determination of whether to review a moot question is left to the discretion of the court. The state argues that in enacting AS 12.30.027, the legislature intended to protect domestic violence victims. The state argues that'bail release of those charged or convicted of domestic violence is a frequently occurring issue which tends to evade review because defendants, as in the current case, violate a condition of release or have their case resolved before this court has the opportunity to rule on the issue. Although the amicus, the Public Defender Agency, has argued against the state's interpretation of AS 12.30.027(b), the amicus has not challenged the application of the public interest exception to the mootness doctrine in this case. We conclude that interpretation of AS 12.30.027(b) is an important issue which we should address at this time. Alaska Statute 12.30.027(b) forbids the court from permitting a person released on a charge or convicted of a crime of domestic violence from returning to the residence of the alleged victim. When we interpret a statute we are to determine the intent of the legislature in enacting the statute. We are to review the statute de novo, without deference to the trial court. Alaska Statute 12.30.027(a) governs the release before and after trial of a person who has been convicted of a crime involving domestic violence. It provides that, before ordering the release on bail of a person charged with or convicted of a crime involv ing domestic violence, the court shall consider the safety of the alleged victim: Before ordering release before or after trial, or pending appeal, of a person charged with or convicted of a crime involving domestic violence, the court shall consider the safety of the alleged victim or other household member. It is undisputed that Roberts' conviction for assault in the third degree, a violation of AS 11.41.220, was a "crime involving domestic violence" covered by AS 12.30.027. A "crime involving domestic violence" includes a crime under AS 11.41 "by a household member against another household member." A "household member" includes "adults or minors who live together or who have lived together" and "persons who have a child of the relationship." It is undisputed that Roberts and M.J. lived together in the same household and had a child. Alaska Statute 12.30.027(b) limits the court's authority to release on bail a person charged with or convicted of a crime involving domestic violence. The statute reads as follows: A court may not order or permit a person released under (a) of this section to return to the residence of the alleged victim or the residence of a petitioner who has a protective order directed to the person and issued or filed under AS 18.66.100— 18.66.180. In the trial court, Roberts argued that the statute did not apply to him. He argued that AS 12.30.027(b) only restricted the court from releasing a defendant to "the residence of a petitioner who had obtained a protective order against the defendant." Judge Beist-line agreed with Roberts' interpretation of the statute. The amicus urges us to accept this interpretation. But if the legislature wanted only to restrict the court from releasing a defendant to the residence of a petitioner who had obtained a protective order, the legislature could have accomplished the same purpose by completely leaving out the phrase which we have put in brackets: A court may not order or permit a person released under (a) of this section to return to the residence [of the alleged victim or the residence] of a petitioner who has a protective order directed to the person and issued or filed under AS 18.66.100— 18.66.180. The Alaska Supreme Court has recognized the rule of statutory interpretation that a "statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant." We see no reason why the legislature would have added the phrase "to the residence of the alleged victim" to the statute if it merely wanted to restrict the court from releasing a defendant to the residence of a petitioner who had obtained a protective order. It would be unreasonable for us to conclude that the legislature added the language "to the residence of the alleged victim" to the statute for no purpose. It appears that the legislature intended to restrict courts from releasing defendants charged with or convicted of a crime of domestic violence to the residence of the alleged victim. It appears that the legislature concluded that permitting such a release might result in further domestic violence. The legislature therefore restricted courts from permitting such a release. The constitutionality of the statute is not ripe for review. Roberts argues that if courts are completely restricted from releasing defendants charged with or convicted of crimes involving domestic violence to the residence of an alleged victim, the statute will result in unconstitutional applications. He points out that the definition of "crimes involving domestic violence" is broad and includes misdemeanors. He also argues that the statutory restriction on release could be for a lengthy period of time — because appeals frequently take over a year to decide, and may take significantly longer than that. He points out that defendants could be restricted from living with their spouse and children for a significant period of time for a relatively minor offense where there was little or no danger from such a release. Defendants might be required to give up their right to appeal in order to live with their families. But none of these issues are raised by Roberts' case. Roberts' interpretation of the statute was adopted by the trial court and Roberts was released. Roberts never argued below that the statute was unconstitutional as applied to him, or that it had unconstitutional applications. We accordingly conclude that this case is not a proper vehicle for us to determine whether, in some instances, application of AS 12.30.027(b) might be unconstitutional. Generally, courts do not resolve hypothetical issues. We accordingly conclude that we should limit our decision to interpreting the statute. In the event that application of the statute arguably conflicts with the United States or Alaska Constitutions, we believe that these issues should be resolved where there is an actual case or controversy. . AS 11.41.220(a)(1)(B). . The full text of the statutes in question read as follows: AS 12.30.027(a) reads as follows: Before ordering release before or after trial, or pending appeal, of a person charged with or convicted of a crime involving domestic violence, the court shall consider the safety of the alleged victim or other household member. To protect the alleged victim, household member, and the public and to reasonably assure the person's appearance, the court may impose bail and any of the conditions authorized under AS 12.30.020, any of the provisions of AS 18.66.100(c)(1)— (7) and (11), and any other condition necessary to protect the alleged victim, household member, and the public, and to ensure the appearance of the person in court, including ordering the person to refrain from the consumption of alcohol. AS 12.30.027(b) reads as follows: A court may not order or permit a person released under (a) of this section to return to the residence of the alleged victim or the residence of a petitioner who has a protective order directed to the person and issued or filed under AS 18.66.100 — 18.66.180. . See Municipality of Anchorage v. Baxley, 946 P.2d 894, 899 (Alaska App. 1997). . Krohn v. State Dept. of Fish and Game, 938 P.2d 1019, 1021 (Alaska 1997) (quoting Kodiak Seafood Processors Ass'n v. State, 900 P.2d 1191, 1196 (Alaska 1995)). . State v. McCallion, 875 P.2d 93, 98-99 (Alaska App.1994); Progressive Ins. Co. v. Simmons, 953 P.2d 510, 516 (Alaska 1998). . McCallion, 875 P.2d at 98. .AS 18.66.990(3) provides: (3) "domestic violence" and "crime involving domestic violence" mean one or more of the following offenses or a law or ordinance of another jurisdiction having elements similar to these offenses, or an attempt to commit the offense, by a household member against another household member: (A) a crime against the person under AS 11.41; (B) burglary under AS 11.46.300 — 11.46.310; (C) criminal trespass under AS 11.46.320— 11.46.330; (D) arson or criminally negligent burning under AS 11.46.400 — 11.46.430; (E) criminal mischief under AS 11.46.480— 11.46.486; (F) terroristic threatening under AS 11.56.810; (G) .violating a domestic violence order under AS 11.56.740; or (H) harassment under AS 11.61.120(a)(2)— (4). . AS 18.66.990(5)(B). . AS 18.66.990(5)(G). . Peninsula Marketing Ass'n v. Rosier, 890 P.2d 567, 573 (Alaska 1995) (quoting 2A norman j. singer, SUTHERLAND STATUTORY CONSTRUCTION § 46.06 (5th ed.1992)). . See State v. Patterson, 740 P.2d 944, 949 n. 18 (Alaska 1987); Perry v. State, 429 P.2d 249, 251-52 (Alaska 1967). . See Sonneman v. State, 969 P.2d 632, 636 (Alaska 1998) (quoting Trustees for Alaska v. State, 736 P.2d 324, 327 (Alaska 1987)).

10426906

Nicholas R. SMITH, Appellant, v. STATE of Alaska, Appellee

Smith v. State

1984-06-01

No. 7695

1125

1128

682 P.2d 1125

682

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:41:21.126759+00:00

CAP

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

Nicholas R. SMITH, Appellant, v. STATE of Alaska, Appellee.

Nicholas R. SMITH, Appellant, v. STATE of Alaska, Appellee. No. 7695. Court of Appeals of Alaska. June 1, 1984. Brad J. Brinkman and Margaret Berck, Asst. Public Defenders, Juneau, and Dana Fabe, Public Defender, Anchorage, for appellant. Richard Svobodny, Asst. Dist. Atty., and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

1589

9649

OPINION BRYNER, Chief Judge. Nicholas R. Smith pled no contest to one count of third-degree assault, AS 11.41.220. Superior Court Judge Walter L. Carpeneti sentenced Smith to four years' imprisonment with one and one-half years suspended. Smith appeals his sentence as excessive under Austin v. State, 627 P.2d 657 (Alaska App.1981) and State v. Chaney, 477 P.2d 441 (Alaska 1970). We affirm. Smith's offense arose from a domestic dispute in Juneau, Alaska. On the afternoon of September 26, 1982, Smith telephoned his wife, Melody Gay Smith, to tell her he would be late; they began quarreling. Later that evening at the Imperial Bar, Smith and his wife began to argue again. They continued their argument outside the bar and then they separated; each spent the rest of the evening in a different bar. At approximately 2:00 o'clock in the morning, Smith's wife and Tamara Hen-kins, who was living with the Smiths, re turned home. Smith returned shortly thereafter. Smith and his wife argued again, and after several minutes, Smith's wife left the house. Smith went to bed. Approximately fifteen minutes later, Smith's wife returned. Henkins told her that Smith planned to leave her the next day. Smith's wife went to the bedroom, which was on the second floor, and got into bed. She told Smith that she knew he was going to leave her. Smith rolled over and pointed a loaded .357 magnum revolver at her. Smith's wife ran downstairs and asked Henkins to call the police. After Henkins made the call, Smith, armed with the revolver, came downstairs and tore the phone off of the wall. He went back upstairs; his wife ran outside. Donald H. Bowman, a uniformed Alaska State Trooper, responded to the call from Henkins; he met Smith's wife just outside the house, as she emerged. Smith appeared in the second floor window, and Bowman, who was about twenty-five yards away, repeatedly asked him to come outside. Bowman directed his flashlight on Smith and told him that he wanted to speak to him. Smith was upset. He yelled at his wife because she called the troopers. He also cursed Bowman and told him that he had no business being at his home. Smith then knocked out the window screen and fired a shot in Bowman's direction. Bowman fired a single shot in return. By this time other troopers had arrived, and they eventually persuaded Smith to unload the revolver and throw it out the window. A breathalyzer test given to Smith following his arrest indicated a .12 blood-alcohol level. Smith was subsequently charged with two counts of third-degree assault. He pled nolo contendere to the count involving Bowman and the state dismissed the count that alleged an assault on his wife. This sentence appeal followed. In arguing that his sentence of four years with one and one-half years suspended was excessive, Smith relies on Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981), where we stated: Normally a first offender should receive a more favorable sentence than the presumptive sentence for a second offender. It is clear this rule should be violated only in an exceptional case. Smith contends that if he had been a second felony offender, his presumptive sentence would have been two years' incarceration. AS 12.55.125(e). He argues that this case is not exceptional within the meaning of Austin, and he concludes that the sentencing court erred in imposing a sentence greater than the presumptive term for a second offender. We disagree. In a non-presumptive case, it is within the sentencing court's discretion to exceed the presumptive sentence for second offenders where the record indicates that the case is exceptional. We have previously noted: In deciding whether a first felony offense is exceptional under Austin, the sentencing court should determine whether any of the aggravating factors specified in AS 12.55.155(c) would be applicable to the case if it were subject to presumptive sentencing. The court should also decide whether any additional, unspecified aggravating factors would justify referral to a three-judge sentencing panel pursuant to AS 12.55.-165 if presumptive sentencing were applicable to the case. Peetook v. State, 655 P.2d 1308, 1310 (Alaska App.1982); Sears v. State, 653 P.2d 349, 350 (Alaska App.1982). Maal v. State, 670 P.2d 708, 710 (Alaska App.1983). At the time of sentencing, Judge Carpeneti expressly concluded that Smith's case was exceptional. This conclusion was based on the finding of a specific aggravating factor: that Smith's assault was knowingly directed at a law enforce ment officer. See former AS 12.55.-155(c)(13). Before pronouncing sentence, Judge Carpeneti stated: I believe, Mr. Smith, that you knew Trooper Bowman was a trooper at the time you directed the shot in his direction. I reached that conclusion for a number of reasons, the first is that he was within eyesight. I understand the testimony that he was shining a light in your eyes, but that is the first reason. The second is that he was there in response to a call and you were, the testimony showed, angry with your wife for that call and berating her for it at the time that you and Trooper Bowman were having the conversation. And the inference to me just seems overwhelming that you would have had to have known, under those circumstances, that Trooper Bowman was indeed a law enforcement officer, and that was the cause of your irritation with her. I think it is sufficient that there is a finding, and I am prepared to make a finding and do, that you fired the gun in the direction of the officer, in his general direction. Certainly all parties agree that it was fired in his general direction and in line with him on a vertical plane. I cannot decide from the evidence that has been submitted, because it is not sufficient . to make a determination as to whether the gun was at this angle or at that angle, and I'm indicating with my hand a difference of just a few degrees, and that's all it would have taken for the shot to be fired either directly, precisely at Trooper Bowman, or above his head, as you've testified you fired. And, so, because the evidence is insufficient, I do not make that finding, but I don't think that I have to. I think it is sufficient, under the law, when the law says the conduct was knowingly directed at a law enforcement officer that firing on the same vertical plane that he is on and otherwise in his direction is certainly sufficient. Smith argues that Judge Carpene-ti erred by not indicating that he found the aggravating factor by "clear and convincing evidence." See Juneby v. State, 641 P.2d 823 (Alaska App.1982), modified on other grounds, 665 P.2d 30 (Alaska App.1982), modified on other grounds, 665 P.2d 30 (Alaska App.1983); AS 12.55.155(f). However, Judge Carpeneti did find that there was overwhelming circumstantial evidence indicating that Smith knew Trooper Bowman was a law enforcement officer. We conclude that Judge Carpeneti's finding of an aggravating factor was not clearly erroneous. See Juneby, 641 P.2d at 834. Furthermore, given the seriousness of this aggravating factor, we are satisfied that the record justified a finding of exceptional circumstances under Austin. See e.g., Maal v. State, 670 P.2d 708, 710-11 (Alaska App.1983); Qualle v. State, 652 P.2d 481, 485-86 (Alaska App.1982). Smith also argues that, in imposing sentence, Judge Carpeneti did not give sufficient weight to his potential for rehabilitation. This claim is without merit. Judge Carpeneti specifically reviewed each of the Chaney factors. He found that deterrence of others and reaffirmation of societal norms were overwhelming considerations where deadly force was directed at a police officer. It is well-settled that the sentencing court determines the priority and relative weight of the Chaney criteria. LaLonde v. State, 614 P.2d 808, 811 (Alaska 1980); Hawley v. State, 648 P.2d 1035, 1038 (Alaska App.1982). Having independently reviewed the sentencing record, we hold that Judge Carpeneti was not clearly mistaken in sentencing Smith to four years with one and one-half years suspended. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). The sentence is AFFIRMED. . Bowman testified at the sentencing hearing that he could not recall if he had identified himself. However, at the preliminary hearing Bowman testified that he was positive that he had. . At the time of Smith's offense, AS 12.55.-155(c)(13) provided: The defendant knowingly directed the conduct constituting the offense at an active officer of the court or at an acting or former judicial officer, prosecuting attorney, law enforcement officer, correctional employee, or fireman during or because of the exercise of his official duties. . Judge Carpeneti also properly concluded that the finding of this aggravating factor did not depend on whether Smith had actually aimed at Bowman. The statute requires merely that the conduct that constitutes the assault was knowingly directed at a law enforcement officer. See former AS 12.55.155(c)(13). See also AS 11.81.-900(b)(12) (defining deadly force as including the intentional discharge of a firearm "in the direction of another person or in the direction in which another person is believed to be.") .State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970).

11116375

KyndelFaye Mercedes KELLIS, Appellant, v. Virginia L. CRITES, Appellee

Kellis v. Crites

2001-03-30

No. S-9276

1112

1115

20 P.3d 1112

20

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:43:06.307332+00:00

CAP

Before FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

KyndelFaye Mercedes KELLIS, Appellant, v. Virginia L. CRITES, Appellee.

KyndelFaye Mercedes KELLIS, Appellant, v. Virginia L. CRITES, Appellee. No. S-9276. Supreme Court of Alaska. March 30, 2001. Kenneth P. Jacobus, Kenneth P. Jacobus, P.C., Anchorage, for Appellant. Barry J. Kell, Wilkerson & Associates, Anchorage, for Appellee. Before FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

1591

9430

OPINION EASTAUGH, Justice. I. INTRODUCTION A jury returned a verdict for a personal injury defendant who had made a $250 pretrial offer of judgment. This appeal concerns the post-trial awards of litigation costs and attorney's fees. Because the parties agree that it was error to award the defendant 100% of her attorney's fees under Civil Rule 68 and AS 09.30.065(a)(1), we vacate the fees award and remand. We also vacate the cost award and remand for submission of a cost bill to the clerk of court. II. FACTS AND PROCEEDINGS KyndelFaye Mercedes Kellis sued Virginia M. Crites in January 1998 for injuries Kellis allegedly suffered as a result of a 1996 car accident. In February 1998 Crites, citing Alaska Civil Rule 68 and AS 09.30.065, made Kellis an offer of judgment of $250. Kellis did not accept the offer, which expired ten days later. The case went to trial in February 1999 on the issues of causation and damages only. The jury found for Crites and awarded Kellis no damages. The trial court entered judgment for Crites on March 4, 1999. Crites then filed separate motions for awards of costs and attorney's fees. Kellis objected. The superior court awarded Crites all requested costs ($7,461), and all of the attorney's fees ($30,484.50) incurred in her behalf, even though Crites had requested only $22,825.87, seventy-five percent of the attorney's fees incurred. Kellis appeals both awards. III, DISCUSSION A. Standard of Review We review awards of costs and attorney's fees for abuse of discretion, which exists if an award is arbitrary, capricious, manifestly unreasonable, or improperly motivated. We interpret our civil rules de novo, adopting "the rule of law which is most persuasive in light of precedent, policy, and reason." B. Attorney's Fees Kellis first argues that the trial court's award of full attorney's fees violates AS 09.30.065(a)(1) and that the trial court should have awarded, at most, seventy-five percent of the reasonable attorney's fees incurred in Crites's behalf. COrites agrees that it was error to award her full attorney's fees, because Crites had requested only seventy-five percent of her incurred fees. Crites did not ask the trial court to award full attorney's fees under AS 09.30.065(b), and does not seek to justify such an award on appeal. We therefore vacate the award of full attorney's fees and remand for an award of attorney's fees under Alaska Civil Rule 68 and AS 09.30.065(a)(1). Furthermore, we note that Rule 68 and AS 09.30.065(a) apply only from the date when an offer of judgment is made. On remand, the superior court may not award Crites attorney's fees per Rule 68 and AS 09.30.065 for services performed before February 6, 1998, when Crites made the offer of judgment. Kellis next argues that the trial court should be allowed to reduce a Rule 68 and AS 09.30.065 attorney's fees award by applying the factors listed in Alaska Civil Rule 82(b)(3). Kellis claims that several of those factors dictate a downward variation in this case. Kellis cites Rule 82(b)(8)(I), which authorizes the court to consider "the extent to which a given fee award may be so onerous to the non-prevailing party that' it would deter similarly situated litigants from the voluntary use of the courts." Kellis also cites Rule 82(b)@®)(J), which authorizes the court to consider "the extent to which the fees incurred by the prevailing party suggest that they had been influenced by considerations apart from the case at bar, such as a desire to discourage claims by others against the prevailing party or its insurer...." Assuming the Rule 82(b)(8) factors apply to an award of attorney's fees under Rule 68(b) and AS 09.30.065(a), they could be relevant in this case only for the limited purpose of determining whether the attorney's fees actually incurred by the offeror were reasonable. But in this case there is no dispute about the reasonableness of the fees incurred by Crites: Kellis's superior court response to Crites's itemized billing conceded that the attorney's fees incurred by Crites were not "unreasonable as to work performed, time expended or hourly rate." Therefore, the Rule 82(b)(8) factors have no bearing on the Rule 68 and AS 09.30.065 award in this case. At oral argument before us, counsel for Kellis also argued that Rule 68 and AS 09.30.065 violate the equal protection clause of the Alaska Constitution. Kellis did not raise this argument in the superior court or in her opening brief, It is therefore waived. C. Costs Kellis argues that the trial court's award of costs should be vacated because Crites did not follow Alaska Civil Rule 79's requirement of filing a cost bill with the clerk of the trial court. Kellis also argues that it was error to award the full costs Crites requested, because Crites did not sufficiently itemize or explain the requested costs. At oral argument before us, counsel for Crites conceded that the trial court's award of costs should be remanded. We therefore vacate the trial court's award of costs and remand so that the cost bill can be submitted to the clerk of court. But we note that there was potentially a substantive error in awarding Crites the full costs requested for expert fees, $8,971.12. Civil Rule 79(F)(7) permits a prevailing party to recover witness fees according to Alaska Administrative Rule 7. That rule provides that the recovery of expert witness fees is "limited to the time when the expert is employed and testifying and shall not exceed $50.00 per hour, except as otherwise provided in these rules." Here, Crites's expert testified for approximately one hour. The award consequently cannot be justified as a reimbursement of the fees charged by the expert. Crites's cost bill indicated that the claimed expert fees also covered the expert's travel expenses. Travel expenses for witnesses are allowed by Civil Rule 79(@g)(1)(D) "to the extent permitted by Administrative Rule 7." Administrative Rule 7 permits recovery of round-trip travel expenses for witnesses required to travel in excess of thirty miles from the witness's residence at the rate for state employees. Here, Crites's cost bill implies that her expert incurred travel expenses approaching $4,000. This amount seems excessive on its face, considering normal, reasonable travel expenses. Because Crites's cost bill was ambiguous and did not permit the trial court to distinguish between what appeared to be excessive fees and unknown travel expenses, it was potentially error to award the full expert witness fees Crites requested. IV. CONCLUSION We therefore VACATE the attorney's fee award and REMAND for recalculation of the award under Rule 68 and AS 09.30.065 for services performed on or after February 6, 1998. We also VACATE the award of costs and REMAND so that the clerk of court can consider Crites's cost bill and Kellis's objections to the cost bill. . See Belluomini v. Fred Meyer of Alaska, Inc., 993 P.2d 1009, 1016, 1018 (Alaska 1999) (reviewing for abuse of discretion attorney's fees awarded under Alaska Civil Rule 82 and costs awarded under Alaska Civil Rule 79); Andrus v. Lena, 975 P.2d 54, 59-60 (Alaska 1999). . See Bobich v. Hughes, 965 P.2d 1196, 1197 (Alaska 1998) (interpreting Alaska Civil Rule 68); D.L.M. v. M.W., 941 P.2d 900, 902 (Alaska 1997) (interpreting Alaska Civil Rules 79 and 82). . Jaso v. McCarthy, 923 P.2d 795, 801 (Alaska 1996) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979)). . AS 09.30.065(a)(1) provides: "[Ilf the offer [of judgment] was served no later than 60 days after both parties made the disclosures required by the Alaska Rules of Civil Procedure, the offeree shall pay 75 percent of the offeror's reasonable actual attorney fees." (Emphasis added.) . AS 09.30.065(b) provides: Notwithstanding (a) of this section, if the amount awarded an offeror for attorney fees under the Alaska Rules of Civil Procedure is greater than a party would receive under (a) of this section, the offeree shall pay to the offeror attorney fees specified under the Alaska Rules of Civil Procedure and is not required to pay reasonable actual attorney fees under (a) of this section. . See Alaska R. Civ. P. 68(b); AS 09.30.065(a). . Alaska R. Civ. P. 82(b)(3)(D. . Alaska R. Civ. P. 82(b)(3)(J). . It is not necessary here to consider the effect of this sentence in Rule 68(c) "A party who receives attorney fees under this rule may not also receive attorney fees under Civil Rule 82." We note that appellee does not claim that an award under Rule 82 would exceed her award under Rule 68. . See Alaska Const. art. I, § 1 (providing that "all persons are equal and entitled to equal rights, opportunities, and protection under the law"). . See Gunderson v. University of Alaska, Fairbanks, 902 P.2d 323, 327 n. 5 (Alaska 1995) (holding that arguments not raised before trial court or not included in statement of points on appeal will not be considered on appeal). . See Alaska R. Civ. P. 79(b), (d). . See id. . Alaska R. Civ. P. 79(D(7). . Alaska R. Admin. P. 7(c). . Alaska R. Civ. P. 79(g)(1)(D). . See Alaska R. Admin. P. 7(b).

10343565

William C. COMPTON, Appellant/Cross-Appellee, v. Gail F. COMPTON, Appellee/Cross-Appellant

Compton v. Compton

1995-09-08

No. S-5891/5941

805

813

902 P.2d 805

902

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:43:34.517492+00:00

CAP

Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

William C. COMPTON, Appellant/Cross-Appellee, v. Gail F. COMPTON, Appellee/Cross-Appellant.

William C. COMPTON, Appellant/Cross-Appellee, v. Gail F. COMPTON, Appellee/Cross-Appellant. No. S-5891/5941. Supreme Court of Alaska. Sept. 8, 1995. R. Scott Taylor and Philip R. Volland, Rice, Volland and Gleason, P.C., Anchorage, for Appellant. Joan M. Clover, Max F. Gruenberg, Jr., and Jennifer L. Holland, Gruenberg and Clover, Anchorage, for Appellee. Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

4752

29892

OPINION EASTAUGH, Justice. I. INTRODUCTION William (Bill) Compton appeals the trial court's finding that he is not entitled to reimbursement for marital expenditures that he claims benefited property of his former spouse, Gail Stover. Bill argues that the couple's prenuptial agreement requires reimbursement. We affirm the trial court's finding that reimbursement is not required. We also affirm the trial court's distribution of the parties' vehicle and disputed bank account and its finding that an award of attorney's fees is not appropriate in this case. We remand regarding distribution of the couple's marital residence. II. FACTS AND PROCEEDINGS On the day they married in 1988, Gail and Bill signed a prenuptial agreement which provided that the parties would keep all premarital property, including any increase in value of the property or property acquired in. exchange for premarital property, as their "sole and separate property." When their marriage began Bill and Gail each had a substantial amount of separate property, including several separate bank accounts. Gail had approximately $750,000 in premarital assets, while Bill had about $1.4 million in premarital assets. Shortly after they married, Bill added Gail's name to one of his separate bank accounts (the 571 account). Bill placed his marital income into this account and transferred funds from his separate accounts into this account during the marriage. Gail placed some of her marital income into this account as well. Both parties wrote checks on this account throughout the marriage. During the marriage, and unknown to Gail, Bill opened a separate account (the Wedbush account) and began depositing his marital income in that account. Bill and Gail expended a considerable amount of money during the marriage. They sold Bill's house and spent over $280,000 remodeling the Barry Street house which Gail brought into the marriage. They bought an airplane and a Suburban vehicle, and spent approximately $114,000 on Bill's two children and approximately $90,000 on travel, jewelry and clothes. In the course of the marriage, over $630,000 of Bill's income earned on premarital assets was placed into the joint 571 account. Bill and Gail separated in 1991, and Bill filed for divorce in 1992. Their marriage lasted three years and eleven months. During the divorce proceedings, Bill alleged that $620,000 of the amount spent during the marriage was from his separate assets and that approximately $315,000-$340,~ 000 of this amount was spent to enhance Gail's separate assets, including payments for remodeling her premarital home on Barry Street, the mortgage, and taxes on Gail's separate real estate. Bill argued that the parties' premarital agreement entitles him to reimbursement of his separate assets which he transferred to Gail by spending them on her property and debts. He testified that he cannot remember if he was ever advised to keep separate property segregated, but that the prenuptial agreement precludes any conclusion that his separate property, including his separate property which he placed into the couple's joint checking account, became marital. Bill's expert witness, an accountant, determined that the marriage had "overspent" itself by approximately $29,000. Bill also estimates that his net worth decreased by $331,000 during the marriage. Bill claimed at trial that Gail had to repay him the nearly $340,000 he spent on her separate property. At trial Gail disputed Bill's assertion that he is entitled to reimbursement of his separate funds that he spent during the marriage. Gail asserted that she and Bill were advised by their respective attorneys to keep their separate property segregated and were warned that if they did not they should consider themselves as having donated it to the marital unit. Gail argued that because Bill had chosen to "supplement ] the marital coffers" with his separate income by placing it into the joint 571 checking account, Bill could not argue that this money somehow remained separate property which had to be reimbursed by Gail. Gail also asserted that before she married Bill she had lived a lifestyle within her economic limitations and that her personal income during the marriage would have been greater had she not reduced her work hours at Bill's suggestion. Both sides agree that Bill never gave Gail any reason to believe during the marriage that the money placed into the joint checking account remained separate and would have to be reimbursed at a later date. Gail asserted that if Bill had indicated that he was "lending" her the money for remodeling the Barry Street residence or for tax payments, jewelry, and the like, it would have affected her decisions to work part time, maintain two private airplanes, remodel her home, and spend $114,778 on Bill's two children. She testified that she believed that if she mixed her separate assets with marital assets she would be contributing them to the "marital pot." The trial court distributed the parties' assets according to established principles under Alaska law. See Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983) (requiring the court to undertake a three-step analysis to determine division of property); Merrill v. Merrill, 368 P.2d 546, 548 n. 4 (Alaska 1962) (articulating factors relevant to determining equitable division of property). The court found the Barry Street house, where Bill and Gail had resided during most of their marriage, to be marital property and divided the net marital equity in half. The court thus awarded Bill one-half of the increase in value of the house due to the remodeling, but not one-half of the actual costs of the remodeling. The court also divided equally each party's retirement plan, the depreciated value of the Suburban vehicle, and the Wedbush bank account. The court refused to credit Bill for his expenditures on Gail's separate real estate, investments, or tax liabilities. The court found that if Bill had told Gail "or even given significant hints" that she would need to reimburse Bill, the "extravagant spending patterns engaged in by both parties would not have occurred." The court also found it impossible to determine whether the funds that backed the payments Bill made to Gail's separate property were in fact separate funds. The court stated that implicit in its conclusion was the determination that the court was not required to enforce a prenuptial agreement where the parties' actions and expressed intent are contrary to the agreement. The court cited In re Marriage of Fox, 58 Wash.App. 935, 795 P.2d 1170 (1990), as support for this conclusion. On appeal Bill argues that the superior court erred by refusing to enforce the prenuptial agreement, and thus failed to order the required reimbursement. Bill also argues that the court divided three specific items of property incorrectly: (1) the Barry Street residence; (2) the Suburban; and (3) the Wedbush account. Gail cross-appeals, asking for attorney's fees under AS 25.24.140(a)(1) and Alaska Civil Rule 82. III. DISCUSSION Bill argues that under the terms of the prenuptial agreement, he is entitled to reimbursement for the portion of his separate funds that benefited Gail's separate property; furthermore, because there is insufficient marital income with which to reimburse him, the reimbursement must come from Gail's separate property. Gail responds that reimbursement is not required under the terms of the prenuptial agreement, nor is it permissible under principles of equity and fundamental fairness. Rather, Gail argues, Bill's contributions should be viewed as gifts to Gail and to the marital unit, as permitted under paragraph five of the prenuptial agreement. Gail thus argues that the agreement does not preclude transmutation of separate property into marital property. Although the lower court stated that implicit in its conclusion that Bill was not entitled to reimbursement was its determination that a court need not enforce a prenuptial agreement where the parties act contrary to the agreement,' this determination is only dispositive if reimbursement is otherwise required under the prenuptial agreement. Thus, we must first decide whether the prenuptial agreement requires reimbursement. Because we find that the agreement does not prohibit transmutation of separate property into marital property, we conclude that reimbursement is not required. A. Effect of Prenuptial Agreement on the Claim that Separate Property Was Transmuted into Marital Property When a party uses separate property to acquire property during a marriage, the acquired property is treated as marital property if the trial court determines that the owner of the separate property intends that the newly acquired property be marital or if circumstances indicate that the other spouse has made significant contributions with respect to the property. Lewis v. Lewis, 785 P.2d 550, 555 (Alaska 1990) (citing Wanberg, 664 P.2d at 571-72). Under paragraph one of the parties' prenuptial agreement, each party was to keep as "sole and separate property" all of the party's premarital property, "including any increase of value of such property referred to in this paragraph or any property acquired in exchange for such property." Bill argues that because of this provision, Gail had notice that any of Bill's separate property used to benefit Gail's separate property could not later be deemed marital regardless of how the parties treated the property during the marriage. Bill's reading of the paragraph would prohibit a court from invading separate or premarital property, regardless of either the parties' intentions after signing the agreement or the requirements of equity. This interpretation of the agreement is not in accord with past precedent or sound policy. We hold that a provision such as paragraph one should be considered persuasive evidence that the parties meant to maintain premarital property as separate. However, this evidence is not conclusive. While trial courts must consider a premarital agreement as probative evidence of the parties' intent, courts are not prohibited by the existence of a prenuptial agreement from inquiring into the parties' treatment of property during marriage and treating specific assets as marital if it finds the parties so intended. Under this analysis, unlike rescission or unenforceability due to unfairness, the agreement remains valid, but controls distribution of only those assets which the parties handled in accordance with the prenuptial agreement. Cf. Keffer v. Keffer, 852 P.2d 394, 397 (Alaska 1993) (goal in interpreting a contract is to give effect to the reasonable expectations of the parties, requiring review of language of contract, case law, and relevant extrinsic evidence). This approach follows from our decision in Brooks v. Brooks, 733 P.2d 1044, 1048-51 (Alaska 1987), where we upheld the validity of prenuptial agreements made in contemplation of divorce. The agreement in that case provided in part that it is the desire of the parties that said separate property shall retain its status free and clear of any claims by either party or their heirs' against the property of the other . and [property] shall be subject to his or her disposition as his or her separate property in the same manner as if said proposed marriage had never been celebrated. Id. at 1046-47. After determining that the Brooks' agreement was valid and enforceable, we addressed the question of whether Ms. Brooks was entitled to one-half of the postmarital appreciation of one of Mr. Brooks' premarital assets. Rather than relying on the provisions of the prenuptial agreement as conclusive, we determined whether invasion was necessary considering all the circumstances of the case. We held that invasion of the postmarital appreciation of the premarital property was not appropriate because the parties did not demonstrate their intent to treat the property as joint property by taking an active interest in control or management of the property; nor did Ms. Brooks make a contribution to the marital community which benefited Mr. Brooks' premarital property. We found that the parties exhibited the exact opposite intention: The record shows that [Vem Brooks] purchased the apartment complex over two years before the Brooks' marriage and that throughout the marriage, title to the property remained solely in' his name. Vern also made all the mortgage payments and the Brooks never resided at the complex. The evidence further shows that the Brooks tried, as much as possible, to keep their respective assets and funds separate. Moreover, the parties' prenuptial agreement unambiguously denotes an intention to hold their prenuptial assets separately, "as if said . marriage had never been celebrated." Id. at 1053-54. Thus, we considered the prenuptial agreement to be extremely probative, but not conclusive, of the parties' intent to keep their premarital property separate. See also Chotiner v. Chotiner, 829 P.2d 829, 833 (Alaska 1992) (citing Brooks for the proposition that written agreements may demonstrate an owner's intent to convert separate property to marital property). Other jurisdictions have also adopted a view of prenuptial agreements which recognizes that such agreements should be construed in accordance with the parties' intentions throughout the marriage rather than adhered to formalistically. See, e.g., Estate of Gillilan v. Estate of Gillilan, 406 N.E.2d 981, 988 (Ind.App.1980) (holding that prenuptial contracts are given liberal rather than strict construction in order to effectuate the intent of the parties); In re Marriage of Pillard, 448 N.W.2d 714, 715 (Iowa App.1989) (same, citing In re Parish's Estate, 236 Iowa 822, 20 N.W.2d 32, 36 (1945)). See also Pillard, 448 N.W.2d at 717 ("[T]he end result in any dissolution action is not an interpretation of a prenuptial agreement but an assessment of all factors, including the agreement, to see if there is in fact an equitable result.") (Sackett, J., concurring). In this case, the trial court found that the commingling of the parties' separate and marital assets was "extensive, and only traceable with heroic and tenacious effort on the part of Bill Compton and [his accountant]." The court elaborated, "Bill simply wrote out the checks from the 571 account, paid on his separate property, paid [on] her separate property and paid on marital bills without regard to whose pot the money came from and whose asset the payment improved." Bill testified that he never indicated to Gail that he considered the money spent on her separate tax liabilities, the Barry Street remodeling, or the Suburban, a loan. Bill's testimony at trial clearly indicates that he did not think of the money placed in the 571 account as separate, even though it came from Ms separate funds. There was also evidence that the couple originally planned to jointly borrow the money for the Barry Street remodeling but decided to use funds from one of Bill's separate accounts after being advised by Bill's financial advisor that it would be less expensive and easier than obtaining a loan. In tMs case, unlike Brooks, the prenuptial agreement is the only evidence that the parties intended to keep the assets in question separate. Bill's testimony and handling of the parties' finances during the marriage support the court's finding that when Bill mixed Ms separate property with marital money and used Ms income from separate assets to support marital and Gail's separate property, Ms mtention was to make a gift to the marital umt, despite the existence of paragraph one of the prenuptial agreement. Bill argues that interpretmg the prenuptial agreement to allow for transmutation renders the premarital agreement "meaningless." We disagree. As the trial court noted, the parties did not dispute that most of their significant premarital property was protected by the prenuptial agreement. Thus, the agreement provided meaningful protection to most of the-parties' property. To the extent paragraph one of the agreement is ineffective, the parties themselves rendered it so by not segregating their separate assets. B. Distribution of the Barry Street Residence, the Suburban, and the Wed-bush Account In addition to disputing the court's overall theory of distribution, Bill argues on appeal that the court erred with respect to three specific assets: the Barry Street residence, the Suburban, and the Wedbush account. We affirm the court's distribution of the Suburban and the Wedbush account and reverse the trial court's distribution of the Barry Street residence. 1. The Barry Street residence Both parties agree that the Barry Street home was transmuted into joint property during the marriage. Bill argues that, in accordance with Ms general reimbursement theory under the prenuptial agreement, he should be reimbursed the entire amount he contributed to remodeling the residence, approximately $190,000. Alternatively, Bill argues that the house should be treated as a joint economic enterprise, and, since the parties contributed roughly equal amounts to the enterprise, the value of the house at the time of divorce should be divided between the parties. During the marriage, the equity in the home increased from $48,000 to $123,000. Thus, the net eqmty accruing during the marriage was $75,000. The court, citmg to Wanberg, 664 P.2d 568, determined that the home was marital property and that the $75,-000 equity accruing during marriage should be divided equally between the parties. Bill has not established what amount of money he contributed from Ms separate funds, since these funds came from the parties' joint 571 account. Furthermore, it is undisputed that the parties were prepared to take out a loan together to remodel the home and that it was on the advice of their financial advisor that they decided to use liquid assets. It was not an abuse of discretion for the superior court to find that the parties intended to treat the money used to remodel the house as "their" money. Moreover, Bill's reimbursement analysis, as stated m section A, supra, is rejected under the prenuptial agreement and under Alaska law. Bill's argument that the value of the property rather than merely the equity should be divided equally also ignores the fact that Gail owes a mortgage debt of approximately $142,000 on the property. However, Bill is correct in asserting that the court erred in awarding him only the amount of equity that accrued during marriage. In Wanberg we held that it was an abuse of discretion for the trial court to allocate only the equity actively accrued during marriage where the parties had demonstrated an intent to treat premarital property as joint property. 664 P.2d at 572. The court reasoned that the property had, for the purposes of division, become marital through the combined efforts of the parties. Id. Thus, the court had to allocate the entire equity in the property. Id. at n. 16. We have affirmed on numerous occasions the principle that the entire equity in a piece of joint property should be allocated. See, e.g., Chotiner, 829 P.2d at 832 n. 4 (citing Burgess v. Burgess, 710 P.2d 417, 420 n. 3 (Alaska 1985)) (while it may invade separate property, the court must take into account marital property in its property division); McDaniel v. McDaniel, 829 P.2d 303, 306 (Alaska 1992) (recognizing that Wanberg requires the entire equitable value of property to be divided where the parties have demonstrated an intent to treat property as jointly held); Moffitt v. Moffitt, 749 P.2d 343, 347 (Alaska 1988) (upholding decision to divide entire property as marital asset where parties treated property as a joint holding). In this case, both parties admit that the property is joint property. Consequently, the entire value of the equity, $123,000, is subject to allocation. Gail concedes in her brief that the entire equitable value of the Barry Street residence was before the court, but argues that the court may have had equitable reasons for granting Bill only one-half of the marital equity. However, in the court's own words, it found "no substantial basis to do other than divide this net marital equity in half." We hold that Bill should be awarded $61,500, one-half of the equity in the Barry Street residence. 2. The Suburban vehicle The court did not abuse its discretion in' determining that the Suburban was marital property. Although the vehicle was purchased with funds from Bill's separate account, it was titled in Gail's name alone, purchased to replace Gail's car, and used as a family car. Both parties testified that the vehicle was paid for out of the separate account because there was insufficient money in the joint 571 account at the time of the purchase. The parties exhibited an intent to treat the Suburban as marital property. The court was thus permitted to allocate it equitably under the Wanberg line of cases. We affirm the court's decision to divide the present value of the Suburban equally between Bill and Gail. 3. The Wedbush account We affirm the trial court's determination that the Wedbush account was subject to division and hold that Bill waived any argument that the account was incorrectly valued. Bill argues that even though the Wedbush account included deposits from his marital salary, it should not be divided because the marriage overspent itself. This argument, which is founded on Bill's reimbursement theory, is likewise rejected. Bill further contends that the court erred in valuing the portion of the account that was deposited from marital income (1) by failing to segregate separate income, including a $25,000 premarital balance in the 571 account which had been rolled into the Wedbush account; and (2) by valuing the account as of August 30, 1991, rather than as of a date closer to trial. Bill never advised the court of any dispute regarding the valuation of the Wed-bush account. The parties conferred with the court after the court issued its proposed decision, and the court stated that the only dispute regarding the Wedbush account was whether it was subject to division. Bill's attorney never indicated during the conference, nor during trial, that the court had valued the Wedbush account incorrectly. Thus, Bill waived any argument that the trial court valued the Wedbush account incorrectly. See Adoption of F.H., 851 P.2d 1361, 1365 n. 4 (Alaska 1993) ("A party generally may not present new issues or advance new theories to secure a reversal of a lower court decision.") (quoting Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985)). C. Attorney's Fees The trial court ordered the parties to bear their own costs and attorney's fees. On cross-appeal Gail argues that the trial court erred in failing to grant Gail attorney's fees in light of amendments to AS 25.24.140(a)(1) and CM Rule 82(b)(3). Except in circumstances not present here, Rule 82 does not apply to divorce cases. Cooper v. State, 638 P.2d 174, 180 (Alaska 1981); Burrell v. Burrell, 537 P.2d 1, 6 (Alaska 1975). Further, the 1990 amendment to AS 25.24.140(a)(1) did not change the analysis relevant to Gail's attorney's fees claim. We consequently affirm the trial court's decision regarding attorney's fees. IV. CONCLUSION We AFFIRM the trial court's conclusions that Bill transmuted some of his separate property into marital property and gave other property to Gail, and is thus not entitled to reimbursement. We also AFFIRM the trial court's distribution of the Suburban and the Wedbush account and its determination that attorney's fees should not be awarded to either party. We REVERSE the trial court's finding that Bill is entitled to one-half of the marital equity of the Barry Street residence and instead hold that Bill is entitled to one-half of the entire equity of the residence since both sides agree that the home is joint property. . The accountant originally testified that marital income was $843,000 and that the couple spent $920,858 during the marriage. Thus, the marriage overspent itself by approximately $77,000. After corrections made during trial, the accountant revised these numbers. According to the new assessment, the marriage overspent itself by about $29,000. The court adopted this new estimate. . We review a trial court's allocation of property in a divorce proceeding under the abuse .of discretion standard. Wanberg, 664 P.2d at 570. We will reverse the trial court's determination only if the allocation is clearly unjust. Jones v. Jones, 835 P.2d 1173, 1175 (Alaska 1992). Whether the trial court applied the correct legal standard in exercising its broad distributive discretion is a separate legal issue which we review de novo while considering the rule of law most persuasive in light of precedent, reason and policy. Cox v. Cox, 882 P.2d 909, 913 (Alaska 1994); Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). . The prenuptial agreement provided: 1. Sole and Separate Property. The parties agree that each party will keep, as that party's sole and separate property, all of that party's premarital property (see exhibits A & B) and any property subsequently acquired by inheritance or by gift from a third party, including any increase of value of such property referred to in this paragraph or any property acquired in exchange for such property. 2. Marital Property. The parties intend that all assets accumulated by them during the marriage, (and other than those assets which are excluded under paragraph 1, above), shall be considered marital property, and therefore subject to division between the parties upon dissolution of the marriage. . We will not enforce a prenuptial agreement if the facts and circumstances have changed since the agreement was executed so as to make enforcement unfair and unreasonable. Brooks v. Brooks, 733 P.2d 1044, 1049 (Alaska 1987). If the parties' prenuptial agreement required reimbursement to Bill, we would be required to decide whether enforcement of the agreement would be fair and reasonable given the parties' actions after signing the agreement. However, because we hold that the prenuptial agreement does not preclude transmutation, and thus does not require reimbursement to Bill, we need not decide whether the agreement would be unenforceable if it required reimbursement. Paragraph seven of the prenuptial agreement requires that all modifications or amendments of the agreement be in writing. This provision does not obviate our holding that the agreement does not preclude transmutation. While the agreement indicates that the parties intended that separate property remain separate, the parties' actions indicate otherwise with respect to certain assets. Thus, we do not hold that the agreement was modified or waived by the parties' actions, but rather that the agreement' is not the only evidence the court should consider in determining whether the parties intend to transmute particular items of separate property into marital property. . Although Bill testified that he believed the premarital agreement meant that if he put money from his separate income into the joint account the character of the money would remain unchanged, he also stated that he came to this conclusion "to some degree" after he met with his attorney during divorce proceedings. More importantly, the great majority of Bill's testimony at trial was inconsistent with this assertion. . Bill argues that the prenuptial agreement entitles him to reimbursement. Alaska case law also provides for reimbursement in a marriage of short duration where there has been no significant commingling. Rose v. Rose, 755 P.2d 1121 (Alaska 1988). The trial court rejected an application of Rose to this case. Bill does not appeal that decision. . Bill's argument that such a division is allowed under the prenuptial agreement because "Gail clearly acknowledged that the entire mortgage liability remained her separate debt," is without merit. First, Bill cannot simultaneously argue that the house is joint through transmutation, allowing him the benefit of one-half of all the equity, yet separate under the prenuptial agreement. Second, Gail does not dispute that she is liable for the debt and is not asking that Bill pay any part of future mortgage payments. . In Burgess v. Burgess, 710 P.2d 417 (Alaska 1985), we concluded that the factors which caused the Wanberg court to determine that the disputed property was marital property — use of the property as joint personal residence and active interest taken by both parties in the management and maintenance of the property — were also present in Burgess. However, after conclud-tag that the property was not separate, we ordered that the value of the equity accumulated during the marriage was a marital asset and should have been allocated. 710 P.2d at 420-21. This deviation from Wanberg was not explained, nor was any other case cited. The cases cited above indicate that Wanberg is correctly read as requiring allocation of the entire equity of joint property. .Bill's argument that the court should have valued the Suburban at its purchase price of $24,-000 is without merit. Property should be valued at the time of trial to avoid inequitable results. Moffitt v. Moffitt, 813 P.2d 674; 678 (Alaska 1991). See also Bell v. Bell, 794 P.2d 97, 102 (Alaska 1990) (expressing doubt about propriety of reimbursing where value of assets has drastically changed).

10396184

Lee L. JONAS, Appellant, v. STATE of Alaska, Appellee

Jonas v. State

1989-05-12

No. A-2032

960

970

773 P.2d 960

773

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:37:59.034486+00:00

CAP

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

Lee L. JONAS, Appellant, v. STATE of Alaska, Appellee.

Lee L. JONAS, Appellant, v. STATE of Alaska, Appellee. No. A-2032. Court of Appeals of Alaska. May 12, 1989. Blair McCune, Asst. Public Defender and John B. Salemi, Acting Public Defender, Anchorage, for appellant. Robert D. Bacon, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage and Grace Berg Schaible, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

5989

37019

OPINION BRYNER, Chief Judge. Lee L. Jonas was convicted, following a jury trial, of five counts of sexual assault in the second degree, AS 11.41.420(a)(2)(A), and two counts of harassment, AS 11.61.-120(a)(5). On appeal, Jonas asserts that the trial court erred by failing to grant his motion for psychiatric evaluation of the four complaining witnesses, by admitting various types of testimony, by failing to intervene in the prosecution's cross-examination of Jonas, and by conducting a pretrial conference outside of Jonas' presence. We affirm. FACTS During 1985 and 1986, E.D., C.J., M.H., and A.M., four mentally retarded women, resided at the Lamplighter III Apartments in Anchorage. The four women participated in a semi-independent living program for adults with developmental disabilities, operated by Hope Cottages, a social services agency in Anchorage. This program permitted the participants to live in apartments in the community, rather than in institutions, by giving them the supervision and assistance they needed in daily living. E.D., C.J., A.M., and M.H. had all previously been institutionalized. E.D., A.M., and M.H. had known each other for many years. During the relevant period, A.M. and M.H. shared an apartment, E.D. lived with her husband, and C.J. shared an apartment with a male friend. E.D. and her husband moved into their apartment in February, 1985, after signing a one-year lease. In July 1985, E.D. contacted Kevin Nelson, a substitute caseworker at Hope Cottages, and told him that Jonas, the manager of the Lamplighter III Apartments, was having sex with her. At the same time, she told Nelson that she wanted to move out of her apartment in order to be closer to the grocery store and her church. At a subsequent visit, when Nelson asked E.D. if she had "had sex" with Jonas, E.D. said no. No police report was made, and E.D. remained at the same apartment. In January 1986, E.D. told her regular caseworker at Hope Cottages, Karen Ma-sek, that Jonas "raped [her] a lot." Masek subsequently educated E.D., C.J., A.M., and M.H. about "sexual safety issues." Immediately afterwards, A.M., M.H., and C.J. reported that Jonas had had some form of sexual contact with them. All four women then gave statements to the police. E.D. alleged that Jonas raped her in the exercise room, the laundry room, the storage room, a vacant apartment, her own apartment, and Jonas' office. E.D. claimed that, in most of these instances, Jonas raped her both orally and vaginally. C.J. alleged that Jonas had opened her apartment door with a passkey and had inserted his penis into her vagina while she was lying in bed. She also alleged that, on another occasion, he had touched her genitals with his penis while she was taking a bath. M.H. claimed that Jonas tried to take off her clothes, that he touched her waist, and that he told her he wanted to make love with her. A.M. said that Jonas entered her apartment without knocking and went into the bathroom, where she was taking a bath. On another occasion, Jonas entered the apartment without warning and touched A.M. on the thighs. On a third occasion, Jonas came into A.M.'s bedroom while she was in bed and touched her thighs and knees. Jonas was charged with six counts of sexual assault in the second degree for allegedly engaging in sexual penetration with E.D. and C.J., and with three counts of harassment for allegedly subjecting C.J., M.H., and A.M. to offensive physical contact. Counts 1 through 6 charged violations of former AS 11.41.420(a)(2)(A), which prohibited sexual penetration with a person who the offender knows: is suffering from a mental disorder or defect which renders the person incapable of appraising the nature of the conduct under circumstances in which a person who is capable of appraising the nature of the conduct would not engage in sexual penetration. Jonas was tried before a jury in September 1986. The trial ended in a mistrial. Jonas was retried in January 1987 before Judge Joan M. Katz. The jury found Jonas guilty of five counts of second-degree sexual assault and two counts of harassment. PSYCHIATRIC EVALUATION OF COMPLAINING WITNESSES Jonas' initial argument on appeal is that the trial court erred in failing to grant his motion for psychiatric evaluations of the complaining witnesses. Prior to the first trial, Jonas filed a written motion for psychiatric evaluations of E.D., C.J., A.M., and M.H. The motion specified that the defense wanted an evaluation in these areas: ability to distinguish "fact from fiction" and "susceptibilities to suggestions of facts;" knowledge of sexual function and sexual acts; and attitudes toward sexual acts. At an omnibus hearing conducted before Superior Court Judge Rene Gonzalez, Jonas indicated that the motion for psychiatric evaluations was a companion motion to a motion to interview the complaining witnesses. Jonas' counsel explained that either the evaluations or the interviews were needed to help in preparing to cross-examine the witnesses, because counsel lacked experience "in questioning or dealing with mentally retarded people." The state opposed the motion, arguing that Jonas had not established that psychiatric evaluations were necessary, as required under Pickens v. State, 675 P.2d 665 (Alaska App.1984). The state claimed that previously conducted psychological evaluations of the witnesses, which had been furnished to Jonas, contained sufficient information. Judge Gonzalez stated that he would take the motion under advisement and issue a ruling after examining the earlier psychological reports and reports concerning the incident made by counselors at Hope Cottages. On August 28, 1986, Judge Gonzalez issued an order denying discovery of the previously prepared psychological evaluation reports, and granting discovery of the Hope Cottages incident reports. The order made no mention of the court-ordered evaluations requested by Jonas. No express ruling was ever made on Jonas' motion for additional psychiatric evaluations. Jonas never reminded Judge Gonzalez that the examination motion was still pending, nor did he object to going to trial with the issue unresolved. When the case was transferred from Judge Gonzalez to Judge Buckalew immediately prior to trial, Judge Buckalew asked both parties whether there were any pending motions. Jonas' trial attorney did not mention the present motion, nor did she renew the motion after the first trial ended in a mistrial. The state argues that Jonas abandoned his motion for psychiatric evaluation by failing to request a ruling. An alleged error occurring during the trial of a case must be raised by a party and ruled upon by the trial court before this court will consider it on appeal. Thomas v. State, 391 P.2d 18, 20 (Alaska 1964). In Thomas, the supreme court held that the defendant had forfeited his motion for a mistrial by allowing the case to go to judgment without insisting that the trial court rule on his motion. Id. at 20-21. Similarly, Jonas forfeited his motion for psychiatric evaluations by failing to request a ruling. Jonas claims that he was justified in construing Judge Gonzalez' order of August 28, 1986, as a denial of his motion for psychiatric evaluations. According to Jonas, the fact that the court did not appoint a psychiatrist and that Judge Gonzalez denied discovery of the existing psychological reports makes it clear that his request for additional evaluations was denied. Jonas' interpretation of Judge Gonzalez' order is unreasonable. The unambiguous language of the order makes it clear that the court is denying discovery of the earlier evaluations, not the motion for future evaluations, The court's denial of discovery of the earlier evaluations does not logically indicate an intent to deny the motion for future evaluations. In its opposition to Jonas' motion, the state argued that additional psychiatric evaluations were unnecessary because Jonas could glean ample information from the already existing psychological reports. However, Judge Gonzalez stated that he was denying discovery of the earlier evaluations because they "do not contain any relevant information." If anything, this finding that the earlier reports were irrelevant would support Jonas' contention that additional psychiatric evaluations were necessary. Finally, we reject Jonas' argument that Judge Gonzalez' failure to appoint a psychiatrist was the equivalent of an express denial of his motion. We therefore agree with the state that Jonas abandoned his motion requesting psychiatric evaluations. We must nonetheless determine whether the trial court's failure to sua sponte order the evaluations was plain error. A finding of plain error is appropriate only if the error affects a substantial right and is obviously prejudicial. Marrone v. State, 653 P.2d 672, 676 (Alaska App.1982). Whether or not to order a psychiatric evaluation of a complaining witness in a sexual assault case is a matter within the trial court's discretion. Pickens v. State, 675 P.2d 665, 668 (Alaska App.1984). In Pickens, we adopted a two-part test for determining when the defendant in a sexual assault case is entitled to an order requiring the complaining witness to undergo a psychiatric examination: The trial judge should be authorized to order the [complaining witness] to submit to a psychiatric examination if the circumstances indicate a necessity for an examination. Such necessity would generally arise only if little or no corroboration supported the charge and if the defense raised the issue of the effect of the complaining witness' mental or emotional condition upon her veracity. Pickens, 675 P.2d at 668. See also Daniels v. State, 767 P.2d 1163 (Alaska App.1989). This test is strictly applied, in order to protect the privacy interests of victims. Pickens, 675 P.2d at 669. Applying the Pickens test, we find that Jonas has not established any error, much less plain error. Although Jonas has arguably satisfied the first prong of the Pick-ens test, he has failed to make the requisite showing that a psychiatric evaluation was necessary to provide information on the veracity of complaining witnesses. At the omnibus hearing, the state argued that the stories of the four complaining witnesses sufficiently corroborated each other to prohibit examinations under the Pickens test. Given the fact that Jonas' defense rested on the theory that the four alleged victims knew each other well and had decided together to fabricate charges against Jonas, the similarity of their stories should not be relied on as corroborating evidence. Since there was no other corroborating evidence, Jonas appears to have satisfied the corroboration prong. However, prior to trial, Jonas made virtually no showing of need. Jonas' request for an evaluation presupposes that a psychiatric evaluation would be useful in evaluating the witnesses' credibility. Granting the motion under these circumstances would suggest that a court-ordered evaluation is necessary and available whenever the witness in a sexual assault case is mentally retarded. Since Jonas made no attempt to show that a psychiatric evaluation would be likely to yield relevant evidence, the trial court's "denial" of Jonas' request was not an abuse of discretion under the Pickens test. Moreover, even if Jonas were able to establish error, he could not show prejudice. At the omnibus hearing, Jonas stated that the psychiatric evaluations were needed to assist in cross-examination, and that the evaluations might not be necessary if he had an opportunity to interview the complaining witnesses. Jonas had an opportunity to extensively cross-examine all four complaining witnesses at the first trial, which ended in a mistrial. Because the first trial gave Jonas the opportunity to observe how the witnesses would respond to cross-examination, the psychiatric evaluations were presumably unnecessary to assist Jonas in cross-examining the witnesses in the second trial. Jonas did not renew his motion prior to the second trial. Jonas makes the additional argument that the Pickens test is inapplicable in the present case. Jonas was charged with sexual penetration with a person who the offender knows . is suffering from a mental disorder or defect which renders the person incapable of appraising the nature of the conduct under circumstances in which a person who is capable of appraising the nature of the conduct would not engage in sexual penetration. . Former AS 11.41.420(a)(2)(A). Jonas now argues that because the mental condition of the complaining witness is an element of the crime, psychiatric examination of the complaining witness should be the rule rather than the exception in prosecutions under this statute. We find merit in Jonas' contention that strict adherence to the Pickens standard may not be appropriate in cases in which psychiatric evaluations are sought for reasons other than assessing a witness' credibility. Particularly when, as here, an offense is defined to require proof of a mental disorder or defect, the presence or absence of evidence corroborating the victim's version of events would appear to have little bearing on the issue of whether or not a psychiatric evaluation is warranted. Accordingly, a strong argument can be made that, in such cases, a psychiatric evaluation should be ordered upon an adequate showing that the evaluation would be likely to disclose material evidence bearing on the victim's mental condition, regardless of the presence or absence of corroboration. However, we need not here decide to what extent, if any, Pickens should be modified when the complaining witness' mental condition is an element of the offense. This issue has not previously been litigated in Alaska. Other states that have considered similar issues have reached disparate conclusions. Compare State v. Garcia, 94 N.M. 583, 613 P.2d 725 (N.M.App.1980) with People v. Taylor, 180 Cal.App.3d 622, 225 Cal.Rptr. 733 (1986). Clearly, competent judges could differ on whether such examinations should be granted without the showing of need required under Pickens. Since a plain error is one that would be obvious to a reasonable judge, Jonas has failed to establish plain error. See Marrone, 653 P.2d at 675-76. Because the rule now proposed by Jonas is not a settled rule, it could not have been obvious to the trial court. Moreover, even if it were a settled rule, it would not have been obvious to the trial court that it was applicable to Jonas' case. Jonas did not claim, either at the hearing or in his written motion, that the examinations were needed to determine whether the complaining witnesses were "incapable of appraising the nature of [Jonas'] conduct." Former AS 11.41.420(a)(2)(A). In fact, Jonas conceded, prior to trial, that the witnesses were all mentally retarded. Moreover, at trial, Jonas defended on the theory that the witnesses had fabricated the offenses. He never disputed that their mental condition rendered them incapable of meaningful consent. Since the need for psychological evaluations on an uncontested element of the offense is far from obvious, the trial court's failure to order evaluations was not plain error. See Carman v. State, 658 P.2d 181, 137 (Alaska App.1983). Jonas further argues that the need for psychiatric evaluations became greater once the state indicated that it intended to call an expert witness "for purposes of testifying to mental and developmental capabilities of mentally retarded adults." The state filed notice of its intent to call Dr. Michael Rose on August 21,1986, while Judge Gonzalez still had the motion for psychiatric examinations under advisement. In Anderson v. State, 749 P.2d 369 (Alaska App.1988), this court found that the defendants had established the right to court-ordered psychiatric examinations of the complaining witnesses when the very real concerns regarding these witnesses' competency are added to the state's substantial reliance on psychological testimony regarding behavioral patterns as a means of identifying sexually abused children.... Id. at 371. Jonas argues that because expert testimony was offered, the need for psychological examination of the victims was much greater than it would otherwise have been. Jonas' argument that this court's holding in Anderson required the judge to order psychiatric examinations has no merit. Anderson does not require that psychiatric evaluations be ordered whenever an expert witness testifies in a sexual assault case. In Anderson, a strong showing of need had been made even without the expert testimony. We concluded that the state's reliance on expert testimony, when added to the demonstrated relevance of a psychiatric evaluation on the issue of competence, made it error to deny the defendant's request for an evaluation. We find no plain error in the denial of independent psychiatric evaluations. FAILURE TO STRIKE DR. ROSE'S TESTIMONY Jonas next contends that the court erred in failing to strike the expert testimo ny of Dr. Michael Rose. Because Jonas concededly failed to object to Rose's testimony at trial, we decide this issue under the plain error standard. At trial, Dr. Rose testified about general characteristics of mentally retarded individuals. Rose had never evaluated any of the witnesses, although he had read previous psychological evaluations of each witness. Rose's testimony on direct examination was in the following areas: ability to remember and access information; social functioning and interactions with people of normal intelligence; sexual behavior and attitudes, including responses to sexual victimization. On cross-examination, Jonas elicited testimony about a mentally retarded adult's ability to tell the truth and to lie. Jonas now argues that Rose's testimony treads on "dangerous ground" because the jury could have interpreted it as proof of an element of the crime, namely that the witnesses suffered from "a mental disorder or defect" under AS 11.41.420(a)(2)(A). In particular, Jonas objects to Rose's testimony that mentally retarded adults tend to be "passive" and "compliant," as well as sexually conservative. Jonas argues that this testimony was inadmissible under the guidelines for general background testimony established in Rodriquez v. State, 741 P.2d 1200 (Alaska App.1987). See also Anderson v. State, 749 P.2d 369 (Alaska App.1988); Colgan v. State, 711 P.2d 533 (Alaska App.1985). Jonas has failed to make the necessary showing to establish plain error. Even assuming, for argument's sake, that Rose's background testimony concerning personality traits of retarded adults was inadmissible, Jonas has failed to show prejudice. Jonas' defense rested on the theory that Jonas had had no sexual contact with the alleged victims, not that they engaged in consensual sexual activity with him. Jonas never contested the fact that the alleged victims were mentally retarded, nor did he argue that they would have been capable of "appraising the nature of [his alleged sexual] conduct." In fact, in closing argument, Jonas' counsel made no mention of this element of the offense, instructing the jury only that they would need to find, beyond a reasonable doubt, that Jonas engaged in sexual activity with the witnesses. It is clear from the record that Jonas effectively conceded this element at trial. Therefore, the trial court did not commit plain error in admitting Dr. Rose's expert testimony. PRIOR CONSISTENT STATEMENTS Next, Jonas argues that it was plain error to admit prior consistent statements made by E.D. The state called Karen Lindsey after E.D. had testified. Lindsey was a massage therapist at the Captain Cook Hotel who occasionally gave E.D. massages at the hotel athletic club. She testified that on one occasion, when E.D. was dressing after a massage, she told Lindsey that Jonas had assaulted her: A: . [S]he was putting her clothes back on, and she was putting her bra on, and she grabbed her own breast and said that the person that had been the manager of the apartment where she lived had done that to her. And then she — I believe she pulled down her pants, or unzipped her pants at that point, and pointed to her crotch area and said that she had been — that her manager had — I don't know what words [E.D.] would have used to describe — how I interpreted it was that she was describing his penis, and the fact that he had gray pubic hair. I remember her saying that she had— that intercourse had happened, that he had forced himself upon her. Q: Did she tell you how she felt about that? A: . I asked her and she said that she thought it was horrible and that she hated it, and she seemed to think it was disgusting. And it seems at the time that it happened more than once, and I'm not sure how — this was about a year ago when she told me this — I'm not sure how recently it happened. Lindsey also testified that she felt "outraged" by what E.D. told her. On cross-examination, Lindsey stated that E.D. had told her about the assault in January or February, 1986. The state's next witness, Karen Masek, was E.D.'s case manager at Hope Cottages. Masek testified that she was on maternity leave during July and August of 1986, when E.D. first reported that she had been sexually assaulted. Masek did not discuss the alleged assaults with E.D. until January 8, 1986, when E.D. told Masek that Jonas had raped her. At trial, Masek testified that E.D. had telephoned her and said "my landlord, he rape me a lot, he rape me in the closet." Masek testified that E.D. did not mention any desire to move at the time. Jonas now argues that E.D.'s prior consistent statements to Lindsey and Masek were inadmissible under Alaska Rule of Evidence 801(d)(1)(B). Generally, three requirements must be met before a prior consistent statement by a witness may be introduced: the prior statement must be consistent with the declarant's trial testimony, the statement must be admitted to rebut an express or implied charge of recent fabrication or improper influence or motive, and the statement must be shown to have been made before the improper influence or motive arose. Nitz v. State, 720 P.2d 55, 64 (Alaska App.1986). Jonas apparently concedes that the first two requirements were met. He claims, however, that the statements were inadmissible because they were made after E.D.'s motive to fabricate had already arisen. E.D.'s alleged motive to fabricate was that she wanted to move out of the Lamplighter III Apartments for reasons of convenience but was bound by a lease that would not expire until the end of February 1986. This alleged motive arose sometime prior to July 1985, when she informed Kevin Nelson of Hope Cottages that she wanted to move. During that conversation, E.D. made her first report that Jonas had had sex with her. E.D. apparently did not make any further report about the alleged sexual assaults until her report to Masek in January 1986. A second alleged motive to fabricate arose after E.D. made her report to Masek and moved out of the Lamplighter III Apartments. During cross-examination, the state's expert, Dr. Rose, acknowledged that a mentally retarded person would be likely to want to please authority figures and, in an effort to do so, might lie about events. In its closing argument, the defense argued that E.D. persisted in her story even after she had moved, in an effort to please the police and the district attorney. This would explain why E.D. persisted in her story during the trial, despite the fact that her original motive to fabricate, her desire to move, no longer existed. The state now argues that E.D.'s initial motive to fabricate was virtually extinguished by January 1986, when she reported the incident to Masek and Lindsey, because her lease was due to expire the next month. On the other hand, since the police were not yet involved, E.D.'s second motive to fabricate had not yet arisen. Thus, according to the state, E.D.'s prior consistent statements were made at a time when she had no reason to fabricate. We find the state's argument persuasive. E.D.'s prior consistent statements were clearly relevant to rebut Jonas' claim that E.D.'s testimony was fabricated. Moreover, because the statements were made at a time when E.D. was not subject to an improper influence or motive, the statements have the same probative value as statements made before the improper influence or motive arose. Even if we were to treat the statements as having been made after E.D.'s motive to fabricate arose, we would nonetheless find them admissible. Although a statement which was made after the improper influence or motive arose cannot be used as substantive evidence, it is admissible to rehabilitate the declarant's credibility when it is relevant "to rebut an . implied charge . of recent fabrication or improper influence or motive," A.R.E. 801(d)(1)(B), and when the statement's probative value outweighs its potential prejudicial effect. We find that both of these requirements have been met. Although, as a rule, the jury must be instructed that such statements may only be considered for the purpose of determining the declarant's credibility at trial, Jonas never requested a limiting instruction. Consequently, he cannot argue for reversal on this basis. Robinson v. State, 593 P.2d 621, 624 (Alaska 1979); Nitz, 720 P.2d at 68-69 n. 6. Jonas also argues that Lindsey's statement that she felt "outraged" by what E.D. told her was inadmissible. While the state concedes that, had an objection been made, it should have been sustained, it contends that there was no plain error. We agree with the state. In order to establish plain error, Jonas must show that the error was "substantially prejudicial." Potts v. State, 712 P.2d 385, 390 (Alaska App.1985). It is unlikely that Lindsey's expression of outrage, standing alone, would have affected the jury's verdict. Therefore, we find that plain error has not been shown. ADMISSIBILITY OF LAY WITNESS OPINION The state's first witness at trial was Melanie Duzynski, a member of the professional staff at Hope Cottages who had supervised the four complaining witnesses. Her testimony introduced the four women to the jury, describing their capabilities and limitations. Jonas did not object to her testimony, but on appeal he alleges that it was plain error for two separate reasons. First, Jonas claims that Duzynski should not have been allowed to testify about the women's "social functioning level," "expressive language ability," and I.Q. levels, as reflected in Hope Cottages' records, because she was not qualified as an expert. According to Jonas, Duzynski's testimony was inadmissible opinion testimony by a lay witness. Duzynski explained what is meant by the terms "social functioning level" and "expressive language ability." She expressed an opinion as to the social functioning level and expressive language ability of each of the complaining witnesses. For example, she stated that E.D.'s social functioning level was that of "approximately a nine year old" and her expressive language ability was that of a person "perhaps four years old." In response, the state argues that, had Jonas made a timely objection, the state could have qualified Duzynski as an expert. At trial, Duzynski testified that she had a bachelor's degree with an emphasis on psychology and sociology, and that she had worked in a professional capacity with mentally retarded people for over seven years. The record does not indicate what experience Duzynski had in evaluating the social functioning and expressive ability of mentally retarded adults. It is entirely conceivable, however, that the state could have qualified Duzynski as an expert had Jonas objected. Jonas has not shown how he was in any way prejudiced by the improper testimony. At trial, Jonas never suggested that the complaining witnesses were not mentally retarded. Moreover, a review of the complaining witnesses' testimony indicates that there is virtually no possibility that the jury could have determined that the women were not mentally retarded, or that they did not function on the level of children. Finally, the properly admitted expert testimony of Dr. Rose, while pertaining to the social and intellectual abilities of mentally retarded adults in general, would also have led the jury to conclude that the complaining witnesses functioned at a lower level than a "normal" adult. Jonas also objects to Duzynski's testimony because she testified about the personality of each woman. Jonas contends that not only was Duzynski not qualified to offer this type of testimony, but that it was "thinly disguised character evidence" and was therefore inadmissible under Alaska Rule of Evidence 404(a). Duzynski testified that E.D. is "pleasant," "cooperative," and "friendly;" that C.J. is "friendly" and "happy;" that A.M. is usually "cooperative" but sometimes "grumpy;" and that M.H. is usually "not very pleasant." Jonas' claim of plain error has no merit. Because Jonas never objected to the evidence, the state never explained what the purported relevance of the evidence was. It is not at all clear that it was offered to show that the complaining witnesses acted in conformity with the described traits. Therefore, it is not clear that the testimony would have been inadmissible even if a proper objection had been made. Once again, Jonas does not explain how he was prejudiced by admission of this evidence. Even if the evidence was improperly admitted, it strains credulity to suggest that it could have had an appreciable effect on the jury's verdict. See Van Hatten v. State, 666 P.2d 1047, 1057 (Alaska App.1983). ARGUMENTATIVE CROSS-EXAMINATION Jonas next argues that "the court should have, sua sponte, protected him from the 'harassment' of the district attorney's questioning." Jonas claims that the prosecutor's cross-examination of him, when considered together with the other errors in this case, constituted plain error. Jonas contends that the prosecutor harassed him by argumentative cross-examination in nine different areas. Jonas does not claim that these areas were improper subjects for cross-examination. Apart from asserting that he was "harassed" by the state's questioning and that the cross-examination was "incredibly argumentative," he does not explain why the questioning should be considered improper. Moreover, throughout cross-examination, the judge was responsive to defense objections and appeared to be sympathetic to Jonas. When Jonas did object, his objections were, for the most part, sustained. The judge cut off the prosecutor's line of questioning and told her to move on to something else several times, either in response to an objection or sua sponte. At one point, the prosecutor's questioning provoked the judge into making a remark sympathetic to Jonas. Because the judge sustained most of Jonas' objections and intervened on her own to cut off the prosecutor's "harassment" of Jonas, there does not appear to be any error, much less plain error. However, even if there were error, Jonas cannot satisfy either prong of the. plain error test. The judge's sympathetic remark shows that she found the cross-examination to be irritating, and that it caused her to be sympathetic to Jonas. It is possible that Jonas' counsel felt that the state's badgering cross-examination would tend to alienate the jurors and evoke sympathy for her client, and that she allowed the state to persist as a trial tactic. See Potts, 712 P.2d at 394. Because the cross-examination evoked sympathy from the judge and quite possibly the jurors, Jonas cannot establish prejudice. JONAS' ABSENCE FROM CONFERENCE Jonas' final claim is that he was deprived of his right to be present at every stage of the proceedings. During the trial, Jonas raised a double hearsay objection to testimony regarding E.D.'s initial report to Kevin Nelson. In response, the state claimed that the testimony was admissible as a first report under Greenway v. State, 626 P.2d 1060 (Alaska 1980). At this point, Judge Katz said: This is exactly the issue that I asked you both about before we started the trial, was there going to be any issue like this, and you both assured me no. The complete transcript of the second trial contains no record of any conference or proceeding at which this issue was raised. In his brief on appeal, Jonas raised the possibility that a proceeding had taken place outside his presence. The case was remanded to Judge Katz so that she could make findings concerning what, if anything, happened outside Jonas' presence. Judge Katz held an evidentiary hearing on the issue on September 16, 1988, at which both trial attorneys were present. The judge found that she had had a conversation with trial counsel, outside of Jonas' presence, at which she had asked if either party anticipated raising evidentiary issues, specifically hearsay, which had not been resolved in the first trial. It was Judge Katz' intention to address such issues prior to trial, on the record, outside the presence of the jury, and in Jonas' presence. However, neither party anticipated raising new evidentiary issues. A defendant has a constitutional right to be present at every stage of the trial. See Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970); Dolchok v. State, 639 P.2d 277 (Alaska 1982). In addition, two Alaska Criminal Rules further guarantee this right. See Alaska R.Crim.P. 38(a) and 22(a). However, absence of the defendant from a stage of the proceedings is not always prejudicial error. Dolchok, 639 P.2d at 284. In this case, the error appears to have been harmless beyond a reasonable doubt. The sole purpose of the conference was to alert Judge Katz to any anticipated eviden-tiary issues that had not been raised at the first trial, so that such issues could be addressed prior to trial. No such issues were raised. Moreover, when, despite counsel's earlier assurances that no such issue would be raised, a hearsay issue was raised at trial, that issue was considered on its merits. Under the circumstances, it is apparent that Jonas' presence at the brief pretrial colloquy could have in no way aided in his defense. See Dolchok, 639 P.2d at 284 (defendant's absence from a pretrial conference in which the defense waived a jury trial and the parties stipulated to the substantive standard to be used for the insanity defense was harmless error). We therefore reject Jonas' claim. The conviction is AFFIRMED. . Judge Gonzalez was apparently unaware that the state had already disclosed both sets of reports to Jonas. . Jonas claims that the state should have informed Judge Buckalew that the motion was still pending and that by not doing so the state waived the abandonment argument it now asserts. However, it would appear to be the duty of the proponent of the motion, and not of the adverse party, to ensure that a ruling is made. See Thomas v. State, 391 P.2d at 20. . Masek also testified that C.J., A.M., and M.H. all reported that Jonas had sexually assaulted them. The reports were made after Masek had discussed "sexual safety" with the women. Although Jonas concedes that these were the alleged victims' first reports, he argues that they are nonetheless not admissible under the "first complaint doctrine" of Greenway v. State, 626 P.2d 1060 (Alaska 1980), because the reports were not "fresh." However, the fact that these reports were made a significant time after the alleged assaults goes to their weight rather than their admissibility. Nitz v. State, 720 P.2d 55, 63 (Alaska App.1986). . At trial, Jonas argued that E.D.'s motive in renewing her report of sexual assault in January 1986 was still her desire to get out of her lease. Jonas pointed out that E.D. did not know the months of the year and could not count to five, and argued that E.D. would have been unaware that her lease would soon expire. The state, in turn, argued that E.D. had a good sense when her lease would expire. Masek had testiñed that E.D. had a calendar showing the date her lease would expire, and that she and E.D. would mark off the days until the time E.D. could move. Whether or not E.D. was aware that her lease was almost over, and consequently whether E.D. still had a motive to fabricate in January 1986, would have been a matter for the jury to decide. . As the state argues, Duzynski was testifying as the custodian of business records when she recited the women's I.Q. scores. The proper foundation was laid for the business records hearsay exception under Alaska Rule of Evidence 803(6).

10350852

Ronald LIPSCOMB, Appellant, v. STATE of Alaska, Appellee

Lipscomb v. State

1994-02-25

No. A-4831

166

169

869 P.2d 166

869

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:40:58.497062+00:00

CAP

Before BRYNER, C.J., and COATS, J., and WOLVERTON, District Court Judge .

Ronald LIPSCOMB, Appellant, v. STATE of Alaska, Appellee.

Ronald LIPSCOMB, Appellant, v. STATE of Alaska, Appellee. No. A-4831. Court of Appeals of Alaska. Feb. 25, 1994. Andrew Lambert, Asst. Public Advocate and Brant McGee, Public Advocate, Anchorage, for appellant. Richard W. Maki, Asst. Dist. Atty., Edward E. McNally, Dist. Atty., Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS, J., and WOLVERTON, District Court Judge . Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

1668

10576

OPINION COATS, Judge. On July 16, 1983, Ronald Lipscomb was convicted of robbery and failure to appear. He was sentenced to fifteen years of imprisonment with five years suspended. The court imposed a five year period of probation. Following release on mandatory parole in 1989, and parole revocation in 1990, Lipscomb was again released on mandatory parole on February 20,1992. Under the conditions of both parole and probation, Lipscomb was required to report regularly to a probation/parole officer and to abide by various restrictions. Shortly after his release from prison in February 1992, Lipscomb phoned his Anchorage probation officer, Sarah Williams, from Fairbanks. Lipscomb asked that he be permitted to move to Fairbanks. Williams instructed Lipscomb to report to Fairbanks probation officer Joe Anderson on the next day. Lipscomb did not report as instructed. Lipscomb then left the state. On October 26, 1992, the parole board revoked Lipscomb's parole. On May 5,1992, the State of Alaska filed a petition to revoke Lipscomb's probation. On January 29, 1993, Superior Court Judge Rene Gonzalez revoked Lipscomb's probation for failure to report to the Fairbanks probation office. Judge Gonzalez imposed the five-year term of Lipscomb's sentence that had previously been suspended. Lipscomb appeals, contending that Judge Gonzalez could not revoke his probation under AS 33.20.040(c) because he was not on probation at the time of his violation. Lipscomb also contends that it was unfair to revoke his probation because he did not have notice that he was on probation or that he was required to follow the conditions of his probation. He also contends that imposition of the five-year term constituted an excessive sentence. It is necessary to discuss the statutory history of AS 33.20.040(c) in order to understand Lipscomb's contention that he was not actually on probation at the time he was charged with violating probation., Prior to 1985, Alaska statutes were silent as to whether parole time should run concurrently or consecutively to probation time. In 1985, the legislature passed AS 33.20.040(e), which provided: If a prisoner's sentence includes a residual period of probation, a prisoner released under AS 33.20.030 shall immediately begin serving the residual probationary period, except that if mandatory parole is required under (a) of this section, serving the probationary period shall immediately follow discharge from parole. Ch. 88, § 4, SLA 1985. In 1987, the legislature amended AS 33.-20.040(c) to provide for the concurrent running of mandatory parole and probation time. Ch. 77, § 9, SLA 1987. The amended statute provides: If a prisoner's sentence includes a residual period of probation, the probationary period shall run concurrently with a period of mandatory parole for that sentence and the prisoner shall be under the concurrent jurisdiction of the court and the parole board. Nothing in this section precludes both the court and the parole board from revoking the prisoner's probation and mandatory parole for the same conduct. The 1987 amendment to AS 33.20.040(c) was part of a broader legislative package designed to reduce the workload of overburdened parole and probation staff to allow more time for supervision of the most serious offenders. The legislation achieved this goal by limiting the number of prisoners required to serve mandatory parole, and by providing for the concurrent service of mandatory parole and probation. After the amendment was passed, the parole board sought advice from the Department of Law regarding application of the new law. Specifically, the parole board sought guidance as to which prisoners and parolees were covered by the amended statutes and which were covered by the former statutes. On December 8, 1987, the Department of Law issued an opinion concluding that general saving statute AS 01.10.100(a), required the amendment be applied only to those persons committing crimes after the effective date of the bill (September 13, 1987). Prior to the issuance of this opinion, the parole board had been applying AS 33.20.040(c) (1987) to those prisoners released on or after September 13, 1987. On February 8, 1988, counsel for the Legislative Affairs Agency informed the bill's sponsor, State Representative C.E. Swack-hammer, that AS 33.20.040(c) (1987) lacked effective date language, and that the legislature could only "set aside the effect of the [Department of Law] opinion by clarifying legislative intent_" in a supplementary bill. Also on February 8, the Executive Director of the Alaska Board of Parole wrote to Representative Swackhammer regarding the application of AS 33.20.040(e) in its amended form: On December 10, 1987, we received the Department of Law's opinion indicating we could only apply HB 140 to those prisoners whose crimes were committed on September 13,1987 or thereafter_ We strongly support an amendment that would allow the immediate application of HB 140 to everyone released September 13, 1987 or thereafter. (Emphasis added). In response to the Department of Law opinion, the legislature passed effective date legislation for AS 33.20.040(c) on February 10, 1988. The legislation stated: The provisions of . 33.20.040(c), as amended [in 1987], apply to prisoners incarcerated on or after September 13, 1987, irrespective of the law in effect at the time the prisoner committed the offense for which the prisoner was incarcerated. Ch. 47, § 1-2, SLA 1988 (emphasis added). Lipscomb argues that it is unclear whether he is covered under the 1985 act (with probation running consecutively after parole) or the 1987 act (probation and parole running concurrently), because the term "incarcerated," as used in ch. 47, § 1-2, SLA 1988, is ambiguous. Lipscomb contends that the term "incarcerated" can refer either to a period of incarceration — Mr. Smith is currently incarcerated for assault — or to the act of incarceration — Mr. Smith is hereby incarcerated for six months for assault. Lipscomb concludes, therefore, that the term "incarcerated" could apply to those inmates in jail on or after September 13, 1987, or to those inmates sentenced to prison on or after September 13, 1987. Lipscomb further claims that the foregoing ambiguity must be construed strictly against the government. State v. Andrews, 707 P.2d 900, 907 (Alaska App.1985), aff'd 723 P.2d 85 (Alaska 1986). He contends that we should construe the statute to mean that he was on parole and not probation at the time of his violation. Lipscomb concludes that, since he was not on probation, Judge Gonzalez could not have revoked his probation and imposed the five-year portion of Lipscomb's sentence that had previously been suspended. The state contends that, considering the legislative history of the statute, it is clear that the legislature intended AS 33.20.040 to apply to all prisoners released on or after September 13,1987. The state cites De Nardo v. State, 819 P.2d 903, 907 (Alaska App. 1991), where we stated that the rule of strict construction of criminal statutes "comes into play only when, after employing normal methods of statutory construction, the legislature's intent cannot be ascertained or remains ambiguous." See also State v. Jones, 750 P.2d 828, 831 (Alaska App.1988) and Belarde v. Anchorage, 634 P.2d 567, 568 (Alaska App.1981) (although criminal statutes are generally construed strictly, they should nevertheless be given a reasonable or common sense construction, consistent with the objectives of the legislature). The state also points out that its interpretation of the statute, allowing prisoners to serve their probation and parole concurrently rather than consecutively, would favoh most prisoners by reducing the amount of time that a prisoner is subject to supervision. The legislation establishing the effective date of AS 33.20.040 is ambiguous on its face. We question whether the legislative history is sufficiently clear to have given Lipscomb adequate due process notice that he was on probation. Under the circumstances, we are reluctant to construe the statute in a way that would result in actual prejudice to Lipscomb. We accordingly conclude that the court could not have revoked Lipscomb's probation under AS 33.20.040. Despite the ambiguity in the statutory language, we think that the most plausible intent of the statute is to require concurrent probation and parole for all persons released after its effective date. We also agree with the state that this interpretation tends to favor prisoners in a vast majority of cases. Accordingly, we adopt the state's interpretation of AS 33.20.040 prospectively from the date of this decision. This opinion should clarify the ambiguity by providing notice that the statute applies to all prisoners who are released from incarceration on or after September 13, 1987. By deciding the case in this manner, we carry out what appears to be the intent of the legislature without any unfairness to Lipscomb. REVERSED and REMANDED. . Under the former law, prisoners who had served a minimum of 181 days were required to serve mandatory parole. The new legislation limited that requirement to those prisoners who had served a minimum of two years, thus limiting parole supervision to those offenders who had committed more serious crimes. . AS 01.10.100(a) provides: Effect of repeals or amendments, (a) The repeal or amendment of a law does not release or extinguish any penalty, forfeiture, or liability incurred or right accruing or accrued under that law, unless the repealing or amending act so provides expressly. The law shall be treated as remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of the right, penalty, forfeiture, or liability. . There are actually four separate events to which the effective date legislation might apply: 1) the date the prisoner committed the offense, 2) the date the prisoner was sentenced, 3) the date the prisoner first went to jail, or 4) the date the prisoner was released on parole.

10354277

Joseph SAUCIER, Appellant, v. STATE of Alaska, Appellee

Saucier v. State

1994-02-25

No. A-4859

483

486

869 P.2d 483

869

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:40:58.497062+00:00

CAP

Before COATS and MANNHEIMER, JJ., and WOLVERTON, District Court Judge.

Joseph SAUCIER, Appellant, v. STATE of Alaska, Appellee.

Joseph SAUCIER, Appellant, v. STATE of Alaska, Appellee. No. A-4859. Court of Appeals of Alaska. Feb. 25, 1994. René L. Wright, Asst. Public Defender, Kenai, and John B. Salemi, Public Defender, Anchorage, for appellant. Ethan A. Berkowitz, Asst. Dist. Atty., Edward E. McNally, Dist. Atty., Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before COATS and MANNHEIMER, JJ., and WOLVERTON, District Court Judge. Sitting by assignment made under article IV, section 16 of the Alaska Constitution.

1629

9903

OPINION WOLVERTON, District Court Judge. Joseph Saucier was arrested for driving while intoxicated (DWI) and subsequently charged with refusal to submit to a chemical test of his breath. He entered a no contest plea to the refusal charge, reserving his right to appeal the district court's denial of his motion to suppress the evidence of his refusal to submit to the chemical test. Saucier argues that the officer who arrested him did not have probable cause to believe that Saucier had been driving while intoxicated. We agree. Saucier was arrested by Seward Police Officer Gary Byrnes. Byrnes was driving behind Saucier's car on a Seward city street at about 1:20 a.m., when Saucier's manner of driving caught his attention. Byrnes saw Saucier drive for approximately the length of a city block with his left tires on the center line of the road. A car going in the opposite direction passed Saucier's car during this time. In the next block Saucier's left tires briefly crossed completely over the center line. Half a block later Saucier pulled into a parking space. Byrnes pulled in behind him and turned on his overhead lights. Byrnes walked up to Saucier's car and told Saucier that he had stopped him for driving on and over the center line. Byrnes asked for Saucier's driver's license and Saucier produced it without difficulty. Byrnes did not notice any odor of liquor at this time. Byrnes asked Saucier to get out of his car and step up onto the curb, and Saucier complied. When Byrnes asked him whether he had had anything to drink, Saucier replied that he had had a "couple of beers." During this conversation on the sidewalk, Byrnes detected an odor of liquor about Saucier's person. In his testimony, Byrnes characterized this odor as a "normal," rather than "strong," odor of intoxicating liquor. Byrnes asked Saucier, to perform field sobriety tests and to submit to a preliminary breath test. Saucier refused both requests. Byrnes then arrested Saucier for DWI. Probable cause for an arrest exists when the officer is aware of facts and circumstances, based on reasonably trustworthy information, that are sufficient in themselves to warrant a reasonable belief that an offense has been or is being committed. Pistro v. State, 590 P.2d 884, 886 (Alaska 1979); State v. Grier, 791 P.2d 627, 631 (Alaska App.1990). The existence of probable cause is a mixed question of fact and law. Absent clear error, we must accept the facts as the lower court finds them. Whether probable cause arises from those facts, however, is a purely legal issue over which we exercise our independent judgment. Chandler v. State, 830 P.2d 789, 792 (Alaska App.1992); Grier, 791 P.2d at 631. In this case there are no clear errors in the trial court's findings of fact. We disagree, however, with that court's conclusion that Byrnes' observations gave him probable cause to arrest Saucier for DWI. While there is no question that Saucier was driving, the only facts and circumstances suggesting that Saucier was driving while intoxicated were his minor driving errors, as described above, and the facts that he emitted a "normal" odor of alcohol, admitted to having had a couple of beers, and refused to perform field sobriety tests. At the eviden-tiary hearing, Byrnes was given the opportunity to expand on the bases for the arrest, but was unable to do so. He candidly admitted that many of the common indicia of intoxication were absent. In denying Saucier's motion to suppress, the trial court stated that "[t]his court can't imagine a greater paucity of facts supporting probable cause for an arrest for driveling] while intoxicated." The paucity of supporting facts is what distinguishes this case from those in which we have found probable cause to arrest for DWI. The state analogizes this case to State v. Grier, 791 P.2d 627 (Alaska App.1990), but the comparison is not apt. In Grier we found probable cause to arrest despite Grier's successful performance of several field sobriety tests. After stopping him for speeding, an officer noticed that Grier's eyes were bloodshot and watery and that there was a strong odor of alcohol about his person. Grier had difficulty retrieving his vehicle registration upon the request of the officer. Grier's balance appeared to be unsteady as he exited his vehicle, and he walked back to the patrol car in a "light footed" and "bouncy" way that the officer thought was "very unusual." Grier was very talkative and appeared to be confused. He admitted to having consumed two or three beers. Although he successfully completed four of five field sobriety tests, Grier failed the horizontal gaze nystagmus test. These indicia of intoxication were conspicuously absent in Saucier's case, thus distinguishing it from Grier. The state also cites Skuse v. State, 714 P.2d 368 (Alaska App.1986). Again, the case is not analogous to Saucier's. When initially observed, Skuse was driving in an erratic manner indicative of impairment. Skuse's vehicle was weaving continuously within its lane and he was seen making an unnecessarily evasive response to an approaching vehicle by veering into the lane of oncoming traffic. After stopping Skuse, the officer noticed an odor of alcohol coming from Skuse's vehicle. Skuse fumbled in his wallet for a few seconds before he found his driver's license, and he tore his vehicle registration when taking it out of its envelope. Skuse also seemed confused when the officer questioned him about his expired registration stickers. Like Saucier, Skuse smelled of liquor and refused to perform field sobriety tests, but the similarities end there. Skuse's driving errors were more like those usually exhibited by intoxicated drivers. Unlike Skuse, Saucier did not exhibit confusion and clumsiness when asked for his license and registration. We have found probable cause to arrest for DWI in cases where driving behavior that indicates impaired control of the vehicle is accompanied by signs of intoxication such as bloodshot eyes, flushed complexion, poor physical coordination, and confusion. See, e.g., Skuse, 714 P.2d at 373; Robins v. Anchorage, 711 P.2d 550, 552 (Alaska App.1985). Even in cases where no erratic driving has been observed, we have found probable cause based on multiple indicia of intoxication, particularly if these included failure of one or more field sobriety tests. See, e.g., Russell v. Anchorage, 706 P.2d 687, 690 (Alaska App.1985); cf. Grier, 791 P.2d at 631. Neither situation is presented in this case. Saucier's manner of driving did not strongly suggest that his control of the vehicle was impaired. The odor of alcohol Byrnes detected indicated that Saucier had consumed some amount of alcohol, as he admitted that he had. However, the law prohibits driving while intoxicated, not driving after having had a drink. This distinction has been cogently stated by the Ohio Court of Appeals: The mere odor of alcohol about a driver's person, not even characterized by such customary adjectives as "pervasive" or "strong," may be indicia of alcohol ingestion, but is no more a probable indication of intoxication than eating a meal is of gluttony. State v. Taylor, 3 Ohio App.3d 197, 444 N.E.2d 481, 482 (1981). Finally, Saucier's unwillingness to perform field sobriety tests, if at all probative of intoxication, is far less so than the attempt and failure of such tests. We recognize the difficulty encountered by an officer when a driver effectively cuts off an investigation by refusing to perform field sobriety tests. Nevertheless, we cannot uphold an arrest that is not supported by probable cause to believe that a crime has been committed. Because Byrnes did not have probable cause to arrest Saucier for DWI, Saucier is entitled to have evidence of his refusal to take a breath test suppressed. See Skuse v. State, 714 P.2d at 372. The district court erred in denying Saucier's motion to suppress.. The judgment of conviction against Saucier is REVERSED. BRYNER, C.J., not participating. . The state argues that Saucier's refusal to submit to a preliminary breath test (PBT) should be considered as an additional factor in support of probable cause. This argument is mistaken. We have previously held that "an officer must have probable cause to arrest a defendant for driving while under the influence before he can lawfully administer a preliminary breath test." Leslie v. State, 711 P.2d 575, 577 (Alaska App.1986). It would be incongruous to hold that an officer who does not have the requisite probable cause to administer a PBT can nevertheless ask a driver to submit to such a test, and then use the driver's refusal of that request to bolster the circumstances supporting probable cause. . Byrnes' testimony on cross-examination included the following: Q. Now, that odor [of alcohol about Saucier] was not an extraordinarily strong odor, was it? A. Just a normal odor of intoxicating liquor. Q. He didn't seem confused about what you were asking? A. No, he did not. Q. His eyes were normal? A. Yes. Q. His gait was normal when he exited the vehicle and walked up on the sidewalk? A. Yes. Q. His balance was fine. You observed him walking up on the sidewalk. He didn't trip, he didn't stumble, he didn't seek support from the vehicle to help him stand up? A. No. Q. His balance, you indicated, was fine. Correct? A. Yes. Q. And he had no slurred speech? A. No, he did not.

11113478

Charlie N. FALCONER, Appellant, v. Donald F. ADAMS, Appellee

Falconer v. Adams

2001-04-06

No. S-9290

583

586

20 P.3d 583

20

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:43:06.307332+00:00

CAP

Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.

Charlie N. FALCONER, Appellant, v. Donald F. ADAMS, Appellee.

Charlie N. FALCONER, Appellant, v. Donald F. ADAMS, Appellee. No. S-9290. Supreme Court of Alaska. April 6, 2001. Michael W. Flanigan, Walther & Flanigan, Anchorage, for Appellant. Clifford W. Holst, Joan Unger, Anchorage, for Appellee. Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.

1685

10334

OPINION MATTHEWS, Chief Justice. I. INTRODUCTION Charlie Falconer sued Karia Taylor Welch and Donald Adams because of a motor vehicle accident. Falconer obtained a verdict against Taylor-Welch, but Adams was exonerated and was awarded attorney's fees and costs. The question before us is whether Adams or Falconer's attorney who has a lien on Falconer's judgment against Taylor-Welch is entitled to the judgment proceeds. We conclude that because Adams is not a party to Faleoner's judgment against Taylor-Welch, the attorney's lien has priority. II, FACTS AND PROCEEDINGS On February 3, 1992, Karla Taylor Welch was driving a vehicle that rear-ended a stopped vehicle driven by Charlie Falconer. Falconer sued Taylor-Welch and a third driver, Donald Adams, who had allegedly forced Falconer to stop. A jury found that Taylor-Welch was negligent and that Adams was not negligent. Falconer's attorney filed a notice of an attorney's lien for attorney's fees and costs of $18,583 on any judgment in favor of Falconer. The trial court awarded attorney's fees and costs to Adams against Falconer for $10,623.25." After complex post-verdict proceedings, including an appeal, a judgment of $13,873 was entered against Taylor-Welch in favor of Falconer. Adams and Falconer disputed who was entitled to the Taylor-Welch judgment proceeds. The trial court initially ruled that Falconer's attorney had first priority. But after Adams filed a motion for reconsideration, the court ruled that Adams had priority. Falconer appeals. III. STANDARD OF REVIEW The question of priority is a legal one, to which we apply our independent judgment. We will "adopt the rule of law that is most persuasive in light of precedent, reason, and policy." IV, DISCUSSION Falconer argues that the attorney's lien has priority over Adams's claim both under AS 34.35.430 and the "common fund" doctrine. Adams contends that AS 84.35.430(b) gives him priority over the attorney's lien and that the common fund doctrine is inapplicable. Because we conclude that the attorney's lien has priority under AS 34.35.4830, we do not resolve the common fund doctrine argument. Adams argues that AS 84.35.480(b) subordinates the attorney's lien to his claim. Falconer responds that Adams is a judgment creditor who needed to garnish the judgment in favor of Falconer before the attorney's lien attached, rather than a party whose rights supercede the attorney's lien. Subsection .480(b) speaks of "the parties to the action or proceeding" and is thus broad enough to subordinate an attorney's lien to the rights of any other party to the case. But we have interpreted this subsection more narrowly to apply only to the rights of the party paying the proceeds against which the lien is asserted. We so held as to settlement proceeds in Williams v. Utility Equipment, Inc. In Williams, Leslie Williams filed products liability claims against Utility Equipment, Kodiak Motors, and Service Manufacturers. Before trial, Williams settled with Service and Kodiak. A jury found for Utility Equipment, and the court awarded attorney's fees to Utility Equipments. Williams's attorneys still held some of the settlement proceeds in their possession and thus had a lien on those proceeds under AS 34.35.430(a)(2). Utility Equipment argued that this lien was subordinate to its rights to court-awarded fees against Williams under subsection .430(b). We concluded that subsection .480(b) could only benefit the parties responsible for paying the funds on which the lien was asserted. We therefore held "that this section is properly interpreted to apply only to the parties actually involved in each settlement. Utility Equipment was not a party to either pretrial settlement, and therefore is not entitled to priority under AS $4.35.480(b)." At common law it was a much disputed question whether an attorney's lien should be subordinated to an offsetting judgment. But the debate ouly applied to "mutual" judgments: "To be mutual, they must be due to and from the same persons in the same capacity." Where mutuality was lacking, there was no debate; the authorities agreed that the lien of the attorney had priority. Language in attorney's lien statutes in other states with similar subordination clauses has been interpreted to apply to set-offs. One commentator observed of the Oregon statute-on which AS 34.35.4830 is based — that "[it seems that, from the language of the statute, the right of set-off between the parties would be superior to the rights of the attorney." Based on this background, it seems that subsection 480(b) of the statute should be limited to cases of set-offs of mutual debts. It was meant to resolve the "ancient judicial controversy" in favor of the party holding the right of set-off, There is, however, little reason to suppose that it was also intended to change a rule about which there was no debate, namely that an attorney's lien would prevail over a debt that was not mutual. This case is not about a set-off or a mutual debt. Set-offs exist between two parties each of whom owes an ascertained amount to the other. Likewise, as noted above, mutual debts "must be due to and from the same persons in the same capacity." Here, neither definition is satisfied, for Adams wants to apply the proceeds from Falconer's judgment against Taylor-Welch to his own judgment against Falconer. The authorities discussed above confirm the correctness of our holding in Williams that subsection .480(b) only applies to the parties actually involved in a particular settlement. They also warrant the extension of the Williams holding to the facts of this case. Thus a fair reading of this statute is that "rights existing between the parties" refers to each plaintiff's rights vis-a-vis each defendant's rights. The statute's use of "between" supports reading the statute as applying to two-party relationships rather than multi-party situations, for which "among" would have been a more fitting word choice. Each judgment should be considered its own "action or proceeding" for purposes of seetion 480. Under this reading Adams is not a party to Falconer's judgment against Taylor-Welch. Limiting subsection .480(b) to mutual or off-setting rights also comports with the general objective of section 430. There is no reason to treat this situation differently than if Falconer had brought separate suits against Taylor-Welch and Adams, in which case Adams would clearly be required to garnish the Taylor-Welch judgment before the attorney's lien was perfected in order to have priority. Based on the foregoing, we hold that, for the purposes of attorney lien priority under subsection .480(b), each judgment between each set of parties in a multiple-party case should be treated as if it arose in a separate action or proceeding. V. CONCLUSION Because AS 84.35.480(b) does not apply to Adams, as he is not a party to the judgment between Falconer and Taylor-Welch, the attorney's lien has priority. We therefore REVERSE the trial court's decision and REMAND for proceedings consistent with this opinion. . See Falconer v. Adams, 974 P.2d 406 (Alaska 1999). . See Donnybrook Bldg. Supply Co. v. Alaska Nat'l Bank of the North, 736 P.2d 1147, 1149 (Alaska 1987). . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). . AS 34.35.430 provides as follows: (a) An attorney has a lien for compensation, whether specially agreed upon or implied, as provided in this section (1) first, upon the papers of the client that have come into the possession of the attorney in the course of the professional employment; (2) second, upon money in the possession of the attorney belonging to the client; (3) third, upon money in the possession of the adverse party in an action or proceeding in which the attorney is employed, from the giving of notice of the lien to that party; (4) fourth, upon a judgment to the extent of the costs included in the judgment or, if there is a special agreement, to the extent of the compensation specially agreed on, from the giving of notice of the lien to the party against whom the judgment is given and filing the original with the clerk where the judgment is entered and docketed. (b) This lien is, however, subordinate to the rights existing between the parties to the action or proceeding. . 837 P.2d 1112 (Alaska 1992). . See id. at 1113. . See id. at 1114. . See id. at 1115. . See id. at 1117. . See id. at 1115. . See id. at 1118. . Id. . See Beecher v. Vogt Mfg. Co., 227 N.Y. 468, 125 N.E. 831, 832 (1920) (Cardozo, J.) ("'The case revives the smouldering fires of an ancient judicial controversy. The beginnings may be traced to England. When judgment was to be set off against judgment, the King's Bench stood out for the superior right of its attorneys, and maintained the lien for costs. The Common Pleas took the opposite view, and held the right of set-off superior to the lien."). . Id. at 833. . See, e.g., Alexander v. Clarkson, 100 Kan. 294, 164 P. 294, 296 (1917) (observing that when "judgments are not mutual, the ordinary rule seems to be, and ought to be, that a bona fide assignee, especially where the element of priority is involved, is protected"). . See, e.g., LaFleur v. Schiff, 239 Minn. 206, 58 N.W.2d 320, 322-24 (1953) (noting that the language "this lien is subordinate to the rights existing between the parties to the action or proceeding," was included in the Minnesota attorney's lien statute to ensure that set-offs between parties were not subordinated to attorneys' similar liens). * . See Phillips v. Jones, 355 P.2d 166, 170-71 (Alaska 1960). . B. Duval Isaminger, Attorney's Liens, 14 Or. L.Rev. 536, 547 (1935). . See Black's Law Dictionary 1538 (rev. 4th ed.1968). . Beecher, 125 N.E. at 833. . See Phillips, 355 P.2d at 172 ("[Alttorney lien statutes are to be regarded as remedial and should be liberally construed in aid of the object sought by the legislature, which is to furnish security to attorneys for their efforts by giving them a lien upon the subject of the action.").

11116337

CITY OF FAIRBANKS, Michael Pulice, and Patrick B. Cole, Appellants, v. Jimmy RICE and Lee DeSpain, Appellees; Lee DeSpain, Cross-Appellant, v. City of Fairbanks, Michael Pulice, and Patrick B. Cole, Cross-Appellees; Jimmy Rice, Appellant, v. City of Fairbanks, Michael Pulice, and Patrick B. Cole, Appellees

City of Fairbanks v. Rice

2000-03-17

Nos. S-8469, S-8470, S-8479/8489

1097

1112

20 P.3d 1097

20

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:43:06.307332+00:00

CAP

Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI Justices.

CITY OF FAIRBANKS, Michael Pulice, and Patrick B. Cole, Appellants, v. Jimmy RICE and Lee DeSpain, Appellees. Lee DeSpain, Cross-Appellant, v. City of Fairbanks, Michael Pulice, and Patrick B. Cole, Cross-Appellees. Jimmy Rice, Appellant, v. City of Fairbanks, Michael Pulice, and Patrick B. Cole, Appellees.

CITY OF FAIRBANKS, Michael Pulice, and Patrick B. Cole, Appellants, v. Jimmy RICE and Lee DeSpain, Appellees. Lee DeSpain, Cross-Appellant, v. City of Fairbanks, Michael Pulice, and Patrick B. Cole, Cross-Appellees. Jimmy Rice, Appellant, v. City of Fairbanks, Michael Pulice, and Patrick B. Cole, Appellees. Nos. S-8469, S-8470, S-8479/8489. Supreme Court of Alaska. March 17, 2000. Rehearing Granted Oct. 13, 2000. John M. Eberhart and Paul J. Ewers, Deputy City Attorneys, Fairbanks, for City of Fairbanks, Patrick B. Cole, and Michael Pulice. Edward R. Niewohner, Niewohner & Associates, P.C., and Kenneth P. Ringstad, Pa-skvan Law Offices, P.C., Fairbanks, for Jimmy Rice. Thomas R. Wickwire, Fairbanks, for Lee DeSpain. Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI Justices.

7631

47595

OPINION EASTAUGH, Justice. I, INTRODUCTION Jimmy Rice and Lee DeSpain sued the City of Fairbanks (their former employer) and two city employees alleging violations of the Alaska Whistleblower Act resulting in their constructive discharge, and violations of their civil rights under 42 U.S.C. § 1988 of the federal Civil Rights Act. A jury returned verdicts for Rice and DeSpain,. The city and its employees appeal; Rice and DeSpain cross-appeal. We affirm because sufficient evidence supports the verdicts, because the city was not entitled to qualified immunity on the Whistleblower Act claim, and because the superior court did not err in rejecting the defendants' claim that Rice and DeSpain failed to exhaust their administrative remedies. We find no prejudicial error in the parties' other appeal and cross-appeal issues. II, FACTS AND PROCEEDINGS Jimmy Rice and Lee DeSpain were firefighters employed by the City of Fairbanks, Department of Public Safety (fire department). Both were members of the Fairbanks Fire Fighters Association, affiliated with the International Association of Fire Fighters. In 1994 DeSpain and Rice reported that Michael Pulice, the city's Director of Public Safety and their indirect supervisor, was overstating his "comp" time. The Fairbanks City Council discussed the report on February 18, 1995. The next day Pulice telephoned Fairbanks attorney Brett Wood, knowing that Wood had represented Rice and DeSpain. According to Wood, Pulice threatened during the telephone conversation to retaliate against DeSpain and Rice for their report and other activities unrelated to their employment, and insinuated that he might "set them up" or entrap them. Wood informed City Manager Patrick Cole of the call and asked that Rice and DeSpain be placed on administrative leave until the issue was resolved. Cole declined to do so. Three other circumstances contributed to animosity between Rice and DeSpain and the city: the city and Pulice allegedly tried to weaken or discredit the fire fighters' union, Rice and DeSpain engaged in surveillance of Pulice, and Rice told then City Manager Mark Boyer that Pulice had had an extramarital affair with Pulice's administrative assistant. Rejecting the city's recommendation to submit the issue to dispute resolution, DeS-pain and Rice resigned, claiming that they were concerned about retaliation and "intolerable" working conditions. When they resigned, DeSpain and Rice had each been employed for at least twenty years with the fire department. Rice and DeSpain sued the city, former City Manager Cole, and Public Safety Director Pulice. They claimed in their various complaints that the city, Cole, and Pulice had violated the Alaska Whistleblower Act, resulting in the plaintiffs' constructive discharge and the loss of a promotion for Rice, and that Cole and Pulice had violated the plaintiffs' federal constitutional rights of free speech. DeSpain also sued Pulice for defamation, alleging that Pulice had told attorney Wood that DeSpain was involved in an extramarital affair. The case was tried before a jury. The superior court effectively dismissed the Whistleblower Act claims against Pulice and Cole individually when it allowed the jury to consider those claims only against the city. The court instructed the jury to consider the § 1983 claims against Pulice and Cole. The jury found for DeSpain on his civil rights claims against Cole and Pulice, on his Whistleblower Act claim against the city, and on his defamation claim against Pulice. It awarded DeSpain damages of $142,901 on his § 1983 and Whistleblower Act claims and damages of $8,050 on his defamation claim. The jury. found for Rice on his civil rights claims against Cole and Pulice, and on his Whistleblower Act claim against the city. It awarded Rice damages totaling $353,001. The superior court granted Cole's motion for a judgment notwithstanding the verdict (JNOV), concluding that Cole was entitled to qualified immunity on the § 1983 claims-the only claims the jury considered against him. The superior court concluded, "[alt worst, Cole failed to do as much as he could have to investigate the allegations. However, reasonable people with a clear understanding of the law could not disagree that Cole could have reasonably believed his conduct was lawful." As a prevailing party, Cole moved for attorney's fees; the superior court awarded him $5,139. The court awarded Rice attorney's fees of $48,040.94 against the city and $346,739.25 against Pulice. It awarded DeS-pain attorney's fees of $168,114.12 against Pulice on DeSpain's successful § 1988 claim. The court entered judgments for Rice and DeSpain against the city and Pulice, and for Cole against Rice and DeSpain. The city and Pulice (and Cole to the extent issues affect him) appeal from the denials of their motions for summary judgment, directed verdict and JNOV on the constructive discharge issue; denial of qualified immunity to the city on the Whistleblower Act claims; denial of summary judgment against Rice and DeS-pain because they did not exhaust their administrative remedies; and denial of defendants' new trial motion. They claim errors in the judgments; in awarding attorney's fees to Rice and DeSpain on their civil rights claims; in denying summary judgment and remittitur on the defamation claim; and in calculating Cole's award of attorney's fees. The Fairbanks Office of the City Attorney represents the city, Cole, and Pulice on appeal, and unless context requires otherwise, we refer collectively to them as "the city." DeSpain and Rice appeal the JNOV entered against them in favor of Cole on the civil rights claim; they also appeal being precluded from asserting a Whistleblower Act claim against Cole individually. Rice appeals being precluded from asserting a Whistleblower Act claim against Pulice individually; he also appeals from evidentiary rulings and raises issues regarding mitigation of damages. DeSpain also challenges trial time limits the superior court imposed and the denial of discovery master fees. III, DISCUSSION A. The City's Appeal: S-8469 1. The constructive discharge issue Rice and DeSpain asserted in their Whis-tleblower Act and § 1988 claims that they had been constructively discharged. The jury found that the fire department constructively discharged Rice and DeSpain. The city argues that Rice and DeSpain's decisions to resign were unreasonable as a matter of law. It asserts that the evidence does not support the constructive discharge finding and that the issue should have been dismissed on summary judgment, or by entry of a directed verdiet or JNOV. We review denial of a motion for summary judgment de novo. We will reverse denial of a motion for a directed verdict or JNOV only if the evidence, viewed in the light most favorable to the nonmoving party, is such that reasonable people could not differ in their judgment. To prove constructive discharge, employees must show that reasonable persons in their position would have felt compelled to resign. The city argues that the employees' evidence does not support a finding that they reasonably felt compelled to quit. To support their claims, Rice and DeSpain offered their own testimony and the testimony of attorney Wood and a former police officer. Wood testified that Pulice called him shortly after they reported Pulice's comp time abuses and that Pulice told Wood he "had them set up," and that he was "well-versed in entrapment." Wood testified: Q. Did [Pulice] use the words "set up" at any time? A. Exeuse me. Mr. Pulice told me that he had them set up. Q. Did he use that in the present tense, the past tense, the future tense; how was that used? Past tense. That he had them set up? He had them set up. What did you take that to mean? . [Iln the context of the statements about being well versed in entrapment and statements-well, he stated that he'd taken great pains to make a case against them. And when he said that they had them set up-you have to understand, Mr. Niewohner, this man is the chief of police of the City of Fairbanks. He's a commissioned police officer. I took it to mean that he had them set up for some sort of a crime or something like that. I mean, that was the way I took it. Rice and DeSpain testified that they took the threat seriously. Rice testified that, af ter the telephone call, he began imagining numerous ways in which he might be framed or otherwise edged out of his position. He described ways in which he felt he was vulnerable to criticism from Pulice and how he could be set up on the job because of Pulice's access to the fire department and the police department evidence room. His concerns were amplified because Pulice was the chief of police and Rice's boss, as well as the acting city manager at the time of the telephone call. DeSpain also testified about ways he believed Pulice could entrap him or "set [him] up." Rice and DeSpain supported the reasonableness of their interpretation of Pulice's words with the testimony of a former police officer, Mike Nielsen, who had worked closely with Pulice for over twenty years. Nielsen stated that he had advised them to take Pulice's threats very seriously, and pointed out to them that Pulice had access to evidence which would easily enable him to frame them with a crime. Nielsen testified: "He had the evidence key. If he wanted to go down and get evidence, he could drop a baggy of marijuana in the back of their car and call an anonymous tip." On appeal the city claims that this evidence supports only a subjective, unreasonable belief that conditions were so intolerable as to require resignation. It also argues that such single, trivial, or isolated acts of misconduct are generally insufficient to support a constructive discharge claim. We are unwilling to say that the evidence is insufficient as a matter of law to support a finding that the resignations were reasonable. We assume for discussion's sake that an irrational and unsupported fear of framing would not support a finding of constructive discharge. But fear created by an actual threat of framing and bolstered by evidence of means and will is sufficient to support the jury's verdict. It was for the jury to evaluate the city's allegation that Rice and DeSpain's behavior was inconsistent with their claims and any weakness in plaintiffs evidence. The superior court did not err in declining to grant the city summary judgment, a directed verdict, or a JNOV on this issue. 2. Cole's qualified immunity Rice and DeSpain asserted claims against the city, Cole, and Pulice under the Alaska Whistleblower Act. The superior court allowed the jury to consider the Whistleblower Act claims against only the city, and not against Cole and Pulice. The jury found the city liable. The Whistleblower Act claim against the city was based in part on the acts of former City Manager Cole. Those acts also provided the factual basis for DeSpain's and Rice's § 1983 civil rights claims against Cole. The jury found Cole liable under $ 1988 for those acts. But after concluding that Cole was entitled to qualified immunity, the superior court granted Cole a JNOV on the § 1983 claims. The city argues that if Cole was entitled to immunity on the § 1983 claims of retaliatory conduct, reasonable people likewise had to find that the city was entitled to immunity under the Alaska Whistleblower Act because the city acted through Cole. The city relies on AS 09.65.070(d)(2), which grants discretionary fanction immunity to municipalities. This immunity is qualified and does not bar liability for a municipality's discretionary act if that act is alleged to have violated a statute. The city requested a jury instruction on qualified immunity in context of the Whistleblower Act claims. But the requested instruction was not given. -It is unnecessary to decide whether it was error in context of Cole's acts to reject the city's request for a qualified immunity instruction, because Pulice's acts provided an alternative basis for holding the city liable on the Whistleblower Act claim. Pulice did not assert a qualified immunity defense, and the city does not argue on appeal that Pulice was entitled to immunity. Because the jury found Pulice liable for doing the same things which potentially made the city, as Pulice's employer, vicariously liable under the Whis-tleblower Act, Cole's possible immunity would not have excused the city. 3. Exhaustion of administrative remedies The city argues that Rice and DeSpain failed to exhaust their administrative remedies under their collective bargaining agreement (CBA) with respect to their Whistleblower Act claims and the constructive discharge issue. The city also argues that Rice failed to exhaust his administrative remedies as to his assertion that the city failed to promote him. Rice and DeS-pain argue that Whistleblower Act and § 1983 claims do not require exhaustion of state administrative remedies, and that the city waived the failure-to-exhaust issue with respect to constructive discharge. The CBA required the parties to arbitrate disputes that could not be resolved through internal grievance procedures. Rice initially pursued a grievance but resigned before it was resolved. The superior court ruled that exhaustion was not required and denied the city's motion for summary judgment. We review for abuse of discretion a trial court's decision whether to require exhaustion of administrative remedies. We first conclude that the exhaustion requirement does not apply to a damage claim under the Alaska Whistleblower Act. The city correctly argues that an employee must exhaust contractual or administrative remedies before pursuing direct judicial action. This general rule includes exhaustion of contractual remedies such as grievance procedures. But the Whistleblower Act provides for remedies that would not have been available under the city's CBA grievance procedure. We have previously held that arbitration does not afford an exclusive remedy where a statute provides for relief unavailable through arbitration. The legislature intended to discourage and remedy retaliation against whistleblowers by authorizing them to bring civil actions. We therefore think it unlikely that the legislature intended to require that whistleblowing employees administratively exhaust their Whistleblower Act claims. In Public Safety Employees Ass'n v. State, we held that employees' claims for failure to maintain fit premises and for harassment were arbitrable under a collective bargaining agreement, but claims for retaliatory rent and waiver of statutory rights were not arbitrable. Under the express provisions of that agreement, only claims involving interpretation or application of the agreement's terms were arbitrable. Having drawn this distinction between arbitrable and non-arbitrable claims, we concluded that the employees were not precluded from exercising their statutory remedies under the Uniform Residential Landlord-Tenant Act for even arbitrable claims because that act explicitly barred waiver of rights or remedies under the act, and afforded remedies that were unavailable under the act. Although a constructive discharge claim is arbitrable, here the employees alleged constructive discharge only to support their Whistleblower Act and § 1983 claims, not to support a wrongful termination cause of action. The claims they asserted do not require exhaustion of administrative remedies. And the facts underlying the Whis-tleblower Act claim and any constructive discharge intertwine. We will not require employees to sever those issues and arbitrate one before proceeding judicially on the other. Likewise, Rice was not required to pursue a failure-to-promote administrative claim because his assertion that he was not promoted is closely aligned with his Whistleblower Act and § 1983 claims. State v. Beard (Beard IV) is not contrary. We there held that Beard's constructive wrongful discharge claim was foreclosed by his failure to exhaust his administrative remedies and held that requiring exhaustion "promotes judicial efficiency by affording an institution an opportunity to correct its own errors, so as to render judicial action unnecessary." But a Whistleblower Act claim is not the equivalent of a constructive wrongful discharge claim. The superior court correctly noted that to sustain Whistleblower Act claims, employees must show that they were discharged or deprived of employment benefits because of their whistle-blower activities. This additional showing of retaliation makes a Whistleblower Act claim more akin to a civil rights claim under § 1983, to which no exhaustion requirement applies. And by its very nature, because it is based on allegedly retaliatory conduct, a judicial Whistleblower Act claim is predictably less likely to be avoided by arbitration. Therefore, we hold that it was not an abuse of discretion to refuse to dismiss Rice's claims for failure to exhaust administrative remedies. 4, New trial for alleged litigation misconduct The city argues that because Rice and DeSpain and their counsel engaged in deliberate misconduct with respect to rules of evidence, trial procedure, protective orders, and evidentiary rulings, it was error to deny the city's new trial motion. The superior court denied the city's new trial motion because the city failed to move for a mistrial first; the court observed that the city chose to take its chances with the jury it had. The superior court agreed that Rice's attorney had engaged in misconduct at trial by repeatedly disregarding in limine orders and by failing to seek court permission before introducing "bad acts" evidence under Alaska Evidence Rule 404(b). The court also observed that Rice and DeSpain "felt free to say anything they wanted on the stand and frequently violated court orders when doing so." But these observations do not establish that the failure to grant a new trial was an abuse of discretion. Reversal of a trial court's denial of a new trial motion is appropriate only in exceptional cireumstances to prevent a miscarriage of justice. The city points to no misconduct which so prejudiced the city that a miscarriage of justice will result absent a new trial. Instead, the city merely argues that although "no single incident, in and of itself, provided grounds for granting a new trial, the cumulative effect does." The trial judge is in the best position to determine whether misconduct can be cured only by granting a new trial, and whether the failure to timely request lesser remedies indicates a tactical choice. The superior court evidently believed that the city was content with the jury until it returned the verdict. We are not convinced that the superior court erred in resolving the motion. 5. Alleged errors in entering the judgments The city next raises procedural issues. It argues that the special verdict forms were ambiguous because they did not require the jury to specify which of three alternative grounds were the basis for finding that Pulice was liable. It argues that ambiguities in the special verdict forms should be resolved in favor of the defendants. But we do not find special verdict Interrogatory 4 or Interrogatory 8 to preclude entry of judgment against the city and Pulice. Only three claims for relief were submitted to the jury: the Whistleblower Act claims, the § 1983 claims, and DeSpain's defamation claim. Because the superior court did not allow the jury to consider Whistleblower Act claims against Pulice (or Cole), the jury's verdicts require us to conclude that the jury found against Pulice on the § 1988 claims. We perceive no ambiguity. 6. Attorney's fees awarded to Rice and DeSpain The jury awarded Rice and DeSpain each one dollar for noneconomic damages. The city argues that these nominal awards were for their § 1983 claims, and that it was therefore error to award Rice and DeSpain substantial attorney's fees under 42 U.S.C. § 1988. This issue is so sparely briefed that it is effectively waived. The city's brief does not even squarely assert that the court granted any fees to Rice and DeSpain under § 1988, or what amounts it granted. The city does not object to the manner in which Rice and DeSpain's fee awards were calculated, but asserts that the nominal damages awards precluded fee awards under § 1988. Even if the city had not waived the issue, its argument would fail. Rice and DeSpain's § 1988 awards were justified by the jury's substantial damage verdicts. These awards, totaling $359,001 for Rice and $142,901 for DeSpain, reflected damages arising from the defendants' retaliatory interference with the plaintiffs' rights of free speech. Therefore, it was not error to grant them attorney's fees under § 1988. 7. Defamation claim DeSpain sued Pulice for defamation, alleging that Pulice made defamatory statements intimating that DeSpain had had an extramarital affair with a friend's wife. The statements giving rise to this claim occurred during the Pulice-Wood telephone conversation which was also the basis for Rice and DeS-pain's assertions that they had been constructively discharged. Pulice told Wood that he had received a report from a private individual that DeSpain had an extramarital affair. According to Wood, Pulice also implicitly threatened to repeat the rumor to third parties. The city argues that the superior court should have dismissed DeSpain's defamation claim on summary judgment because Pulice's call to attorney Wood, DeSpain's agent, was not a "publication." Courts elsewhere are split on whether a defamatory communication to an agent is a "publication." But there is no evidence here that DeSpain had authorized Wood to act as DeS-pain's agent for the purpose of receiving communications on the subject of Pulice's statements. Absent any such evidence, we think the better rule is that a communication to an attorney can be a publication. Because the city on appeal points to no evidence that Wood had authority to act as an agent to receive such communications, the city cannot prevail on this issue. The city next argues that DeSpain's defamation claim should have been dismissed absent evidence of special harm. We conclude that the superior court did not err in holding that Pulice's statement to Wood was defamatory per se, obviating the need for proof of damages. We have previously ree-ognized that imputation of sexual misconduct is defamatory per se. The superior court concluded that allegations of marital infidelity were allegations of serious sexual misconduct. We agree. It was not error to deny the city's summary judgment motion on DeS-pain's defamation claim. The city finally contends that because DeSpain failed to establish any harm to his reputation, the superior court should have remitted the damages the jury awarded DeSpain for defamation. Remittitur is proper when a jury, without acting under the type of passion or prejudice that would warrant a new trial, nonetheless awards an amount that is unreasonable given the evidence. The appropriate measurement is the "maximum possible recovery" a reasonable jury could have awarded. A defamed party may recover damages for harm to reputation, wounded feelings and humiliation, resulting physical ailments, and estimated future damages of the same kind. A wide range of damages is generally allowable, "running from six cents to $1,000,000 in compensatory damages with an additional $1,250,000 in punitive damages." In Alaska, defamation damages of $10,000 have been affirmed on appeal. We are not persuaded that the defamation award of $8,050 exceeds the maximum amount permissible for the intangible harms resulting from this defamation. 8. Attorney's fees avarded to Cole The superior court awarded Cole attorney's fees of $5,139, divided between Rice and DeSpain,. Cole argues that the court abused its discretion by rejecting Cole's "methodology" and in undervaluing time spent by the city's staff attorneys. As a prevailing party, Cole, through the city, moved for attorney's fees against Rice and DeSpain. His initial request was based on incurred fees which he claimed had a total value of $384,168.25. This total valued the time of the city's staff attorneys at $75 per hour and the time of retained attorneys at their billed rates. When the superior court ruled Cole could not recover fees on the § 1983 claims and required him to segregate the fees "that apply solely to the state claims," Cole recalculated the base total as $290,396.43. This figure valued the staff attorneys' time at $150 per hour, reduced the time of outside counsel by forty-five percent to compensate for the mix of state and federal claims, and deleted time spent solely representing other defendants. The superior court then ordered Cole "to properly segregate the fees spent solely in defense of state claims against him." In response, Cole submitted affidavits establishing that attorney's fees totaling $17,130 had been incurred on his behalf on the state-law-only claims. The superior court awarded Cole thirty percent, $5,139, of that amount. Cole argued below and implicitly argues here that the common nature of the various claims made it "largely" impossible to segregate the time and that his approach of discounting fees by forty-five percent was reasonable and conservative. We conclude that the superior court permissibly required segregation between federal and state-law claims. It properly declined to award fees based on services performed in defending the § 1983 claims. And we conclude that in limiting the award to services performed defending the state-law claims against Cole, the superior court did not abuse its discretion by rejecting. Cole's apportionment scheme in preference for exact time records specifying the actual time spent defending Cole on state-law claims. Cole next argues that it was error to value staff city attorney time at $75 per hour. Cole's superior court filings established that for internal purposes the city attorney's office valued staff time at $75 per hour and his original calculation valued the staff attorneys' work at that rate. Cole's revised calculation requested a "reasonable market value" of $150 per hour for the staff attorneys' time. The court's award was based on a $75 hourly rate for staff attorneys, but valued the time of outside counsel at the rates they charged. On appeal Cole tersely argues for "reasonable" fees but does not specify the rate he believes correct or address any of the policy questions this issue potentially raises. We conclude that it was not an abuse of discretion to rely on the city's internal $75 hourly rate in this case. The case the city cites in support, AMFAC Hotels v. State, Department of Transportation, does not require finding an abuse of discretion here. We there held that it "was well within the trial court's discretion" to calculate the state's fees by substantially reducing the time spent by counsel for the state and applying an average private billing rate of $75 per hour. That opinion did not require trial courts to value staff counsel's time at private billing rates. Accordingly, we discern no clear abuse of discretion. B. Rice's and DeSpain's Appeals: S-8470/8479/8489 1. JNOV for Cole on qualified immunity The jury determined that Cole was not entitled to qualified immunity; it found that Cole could not reasonably have believed that his conduct did not violate Rice's right to free speech. The superior court, however, granted JNOV for Cole on this issue stating that "reasonable people would not disagree that Cole could have reasonably believed his conduct was lawful within the context of the information he knew and the actions he took." The court explained that "Cole took no action which deprived Rice or DeSpain of any free speech right.... At worst, Cole failed to do as much as he could have to investigate the allegations." "The standard of review for motions for directed verdict and judgment n.owv. is 'to determine whether the evidence, when viewed in the light most favorable to the nonmoving party, is such that reasonable men could not differ in their judgment.' " We agree with the superior court's analysis because it is consistent with principles underlying the application of qualified immunity. Federal qualified immunity shields government officials from liability for civil damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." It is applied liberally to protect government officials who exercise discretion when making policy decisions or balancing competing considerations. If there is a "legitimate question" as to whether an official's conduct constitutes a constitutional violation, the official is entitled to immunity. Officials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines." Given Cole's limited role in the events giving rise to the constitutional violations, we agree with the superior court's reasoning and conclude that Cole was entitled to a JNOV. 2. Dismissal of Whistleblower Act claims The superior court dismissed the Whistleblower Act claims against Pulice and Cole; it allowed the jury to consider those claims only as against the city. After the trial ended, we ruled in another case that Whistleblower Act claims can be brought against individual defendants. Given that ruling, it was error to dismiss the Whistle-blower Act claims against the individual defendants. Rice claims that this error re quires reversal as to both Cole and Pulice; DeSpain argues that the error requires reversal as to Cole, but does not raise the issue as to Pulice. The city concedes that dismissal was error, but argues that the error was harmless. We conclude that the error was harmless as to both Cole and Pulice. In deciding whether an official is entitled to discretionary function immunity under AS 09.65.070(d)(2), we apply the federal standard for qualified immunity in § 1983 claims. Because we affirm the court's determination that Cole was entitled to qualified immunity under § 1983, Cole also would have been entitled to discretionary function immunity under state law. Thus, the error of dismissing the Whistleblower Act claims against Cole as an individual was harmless. As to Pulice, the city argues that the § 1983 and Whistleblower Act claims against him are identical, and that remanding the Whistleblower Act claims for trial could lead to a double recovery. The jury found Pulice liable under § 1983 for his retaliatory conduct and awarded Rice (and DeSpain) damages for lost past and future wages and benefits. The Whistleblower Act claims were based on the same conduct and losses that resulted in the damages verdict for Rice under § 1983. Rice's recovery of that verdict establishes that the error of dismissing Rice's Whistleblower Act claim against Pulice individually did not prejudice Rice. 8. Time limits at trial Although he prevailed at trial, DeSpain challenges time limits the superior court imposed on the presentation of his case. The court allowed each side ten days to present its case. DeSpain agreed that Rice, who was to address their common issues, should have six of their ten days. At trial, DeSpain claimed his time was insufficient and requested four additional hours; the superior court gave him an extra half-hour. DeSpain now argues that he was forced to curtail his cross-examination of two unspecified defense witnesses and his closing argument. Although he agrees with the city that any error is harmless, DeSpain asks us to consider it because it presents an important and recurrent issue capable of evading review. We decline to consider it here. The issue necessarily depends on the facts of each case. We are not willing to condemn time limits in the abstract, and the issue can be raised by a party actually claiming prejudice. Moreover, DeSpain's conclusory arguments that his case was curtailed do not establish error or prejudice. They give us no basis for saying that these time limits were inappropriate, or for offering guidance to the trial courts. 4. DeSpain's discovery master fees The superior court appointed a discovery master and ordered DeSpain to pay his portion of the master's fees. After be prevailed at trial, DeSpain moved to recover the fees he had paid. The superior court denied his motion on the ground that the parties' "unreasonable conduct" had required the appointment. "Had counsel cooperated, no expense would have been incurred. Each party must pay the master's expense; the court finds that it should not be a shifted expense under [42 U.S.C.] § 1988." Section 1988 awards are reviewed for abuse of discretion if grounded in factual findings and are reviewed de novo if they are grounded in statutory interpretation. DeSpain does not claim that it was error to appoint the discovery master, only that it was an abuse of discretion not to shift to the city DeSpain's share of the master's expense. But § 1988 does not mandate such an award, and DeSpain has not demonstrated that it was an abuse of discretion to deny his motion. We affirm the denial. 5. Mitigation of Rice's damages The jury found that Rice failed to mitigate his economic damages, and reduced his damage award. Rice does not deny that he had a duty to mitigate his damages, but he contends that he was only required to seek comparable employment, that the jury was erroneously instructed about what constitutes comparable employment, and that no evidence supported the jury's verdict on the mitigation issue. "The goal of contract damages is to place the nonbreaching party in as good a position as if the contract had been fully performed." Alyeska Pipeline Serv. Co. v. H.C. Price Co., 694 P.2d 782, 787 (Alaska 1985). In the case of wrongful discharge, this generally means that the employee "is entitled to the total amount of the agreed upon salary for the unexpired term of his employment, less what he could earn by making diligent efforts to obtain similar employment." Skagway City School Bd. v. Davis, 543 P.2d 218, 225 (Alaska 1975), overruled on other grounds, Diedrich v. City of Ketchikan, 805 P.2d 362, 366 (Alaska 1991),[ ] The jury was instructed that "an employee who is constructively discharged in violation of law has a duty to take steps to minimize the loss by making a reasonable effort to find other comparable employment." The instruction also allowed the city to reduce any damages by proving that "it is more likely true than not true that the plaintiff could have avoided some losses in whole or in part with reasonable efforts and without undue risk, expense, hardship or embarrassment...." The parties seem to agree that "comparable employment" is the same as or analogous to "similar employment." The propriety of a jury instruction is a question of law subject to our independent review. Rice objects to the court's instruction, contending that "[mJitigation based on a rule that plaintiff must accept employment that would not cause undue risk, expense, hardship or embarrassment is inconsistent with the duty imposed by 'comparable employment.'" We think the court adequately instructed the jury about the factors relevant to assessing Rice's ability to obtain comparable employment. The instruction required the jury to consider whether the city had proved that the replacement employment would not involve "undue risk, expense, hardship or embarrassment." The jury heard opposing testimony about Rice's employment prospects. This testimony and the instruction offered sufficient information and guidance to the jury in evaluating whether the employment available to Rice was "similar" or "comparable." Rice also argues that the evidence was insufficient to justify submitting the issue to the jury. Submission of a question to the jury is appropriate when the evidence is such that reasonable people could differ in their conclusions. The testimony of Carl Gann, the city's vocational consultant, permitted an inference that a person with Rice's training who used reasonable efforts in seeking a substitute job could find work in the fire fighting or paramedic field in the vicinity of Fairbanks. Counsel for Rice vigorously cross-examined Gann, and obtained admissions that many of the positions were not open to Rice. But that cross-examination did not foreclose any permissible inference that Rice could have obtained substitute employment that was sufficiently similar to require mitigation efforts. We conclude that it was not error to submit the mitigation issue to the jury, and that the mitigation instruction adequately informed the jury of the factors relevant to this case. 6. Exclusion of evidence of Pulice's conduct Rice challenges the superior court's exclusion of evidence of alleged misconduct after Pulice telephoned Wood on February 14, 1995. Rice claims that the evidence was relevant to prove the working conditions that caused his constructive discharge. But February 14, 1995 was the watershed date on which Pulice made threats, and Rice has not explained on appeal what evidence was excluded, how any excluded evidence substantively differed from admitted evidence, and how the excluded evidence might have affected a jury that nonetheless awarded Rice substantial damages. Rice has not demonstrated that the superior court abused its discretion or that the exclusion harmed him. 7. Other evidentiary rulings Rice raises five additional evidentiary rulings in his cross-appeal. Although he argues with respect to each that the superior court erred, he does not establish how exclusion of this evidence prejudiced him, whether the jury heard equivalent evidence, or what relief would be justified as to any of the alleged errors. We perceive no prejudicial error that would require appellate relief for Rice on any of these rulings. IV. CONCLUSION For the reasons explained above, we AFFIRM the judgment and rulings below. . AS 39.90.100 - 150. . See U.S. Const. amend. I; 42 U.S.C. § 1983. . The jury did not segregate the damages it awarded on the § 1983 and Whistleblower Act claims. . The city cites the following cases to support its claim that isolated and trivial acts of misconduct and an employee's subjective perceptions do not create a claim for constructive discharge: King v. AC & R Advertising, 65 F.3d 764, 767-69 (9th Cir.1995); Calhoun v. Acme Cleveland Corp., 798 F.2d 559, 561 (1st Cir.1986); Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir.1985); Turner v. Anheuser-Busch, Inc., 7 Cal.4th 1238, 32 Cal.Rptr.2d 223, 876 P.2d 1022, 1026-27 (1994). The city, arguing that an employee has an obligation to be reasonable and "not to assume the worst," cites Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1539 (11th Cir.1987). . See Western Pioneer, Inc. v. Harbor Enters., Inc., 818 P.2d 654, 656 n. 3 (Alaska 1991). . See Brinkerhoff v. Swearingen Aviation Corp., 663 P.2d 937, 940 (Alaska 1983). . Constructive discharge is not an independent cause of action, but merely satisfies the discharge element in a wrongful discharge claim. We recognized the doctrine of constructive discharge in Beard v. Baum, 796 P.2d 1344, 1349-50 (Alaska 1990). . See Cameron v. Beard, 864 P.2d 538, 547 (Alaska 1993). . In support, the city cites King, 65 F.3d at 767-69, and Turner, 32 Cal.Rptr.2d 223, 876 P.2d at 1023-26. . See VECO, Inc. v. Rosebrock, 970 P.2d 906, 915-16 (Alaska 1999) (declining to weigh evidence or assess witness credibility in reviewing JNOV on element of sexual harassment claim involving reasonableness of plaintiff's beliefs); see also Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1559-60 (11th Cir.1988) (reversing JNOV for employer because reasonable jury could have concluded, applying objective reasonable person standard, that plaintiff felt compelled to resign). . AS 39.90.100-.150. . AS 09.65.070(d) provides: An action for damages may not be brought against a municipality or any of its agents, officers, or employees if the claim . (2) is based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty by a municipality or its agents, officers, or employees, whether or not the discretion involved is abused.... . See Integrated Resources Equity Corp. v. Fairbanks N. Star Borough, 799 P.2d 295, 301 (Alaska 1990). . See AS 23.40.070-.260. . See State v. Beard (Beard IV), 960 P.2d 1, 5 (Alaska 1998); Broeckel v. State, Dep't of Corrections, 941 P.2d 893, 896 n. 2 (Alaska 1997). . See Romulus v. Anchorage Sch. Dist., 910 P.2d 610, 615 (Alaska 1996). . See Cozzen v. Municipality of Anchorage, 907 P.2d 473, 477 (Alaska 1995). . See AS 39.90.120 (providing for punitive damages and civil penalties for whistleblower claims). . See Public Safety Employees Ass'n v. State, 658 P.2d 769, 774-75 & n. 17 (Alaska 1983). Accord Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 745-46, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981); Bridgeton Educ. Ass'n v. Board of Educ., 132 N.J.Super. 554, 334 A.2d 376, 378 (1975). . See AS 39.90.120. . 658 P.2d 769 (Alaska 1983). . See PSEA, 658 P.2d at 774-75. . See id. at 772-73. . See id. at 774-75. . See Beard IV, 960 P.2d at 7-8. . See PSEA, 658 P.2d at 775. . The city raises this issue only as to Rice, not DeSpain. DeSpain argues on appeal that the city did not raise the exhaustion defense as to any of DeSpain's claims. Although the city argues in its appellate reply brief that DeSpain failed to exhaust his administrative remedies, the record citations in support establish that the city's superior court exhaustion motion related only to Rice, and not DeSpain. It also appears that the city did not raise a failure-to-exhaust defense in the superior court with respect to Rice's assertion that he was constructively discharged. Rice argues on appeal that the city waived this issue by failing to raise it in the superior court. The city does not address Rice's waiver argument in its reply brief. The superior court addressed only the Whistleblower Act exhaustion issue and other issues not raised on appeal. . See Beard IV, 960 P.2d at 8. . See id. . Id. at 5. . See State v. Municipality of Anchorage, 805 P.2d 971, 973 (Alaska 1991). . See Adamson v. University of Alaska, 819 P.2d 886, 896 n. 3 (Alaska 1991). . The superior court awarded DeSpain attorney's fees against Pulice in the amount of $168,114 and awarded Rice attorney's fees against Pulice in the amount of $346,739. Be cause § 1983 was the only possible basis for the jury's verdict against Pulice, the court must have awarded those fees under authority of § 1988. . In support, it cites Farrar v. Hobby, 506 U.S. 103, 115, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (affirming denial of fees to party who originally sought $17 million and injunctive relief but received only nominal damages). But see Brandau v. State of Kansas, 168 F.3d 1179, 1182-83 (10th Cir.1999) (affirming attorney's fee award to plaintiff who originally sought $50,000 and lost wages but received only nominal damages). . See W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 113, at 798-99 (5th ed.1984). . See French v. Jadon, Inc., 911 P.2d 20, 32 (Alaska 1996). . See Exxon Corp. v. Alvey, 690 P.2d 733, 741 (Alaska 1984). . Id. at 742. . See Prosser & Keeton § 112, at 794. . Id. at 795. . See Alaska Statebank v. Fairco, 674 P.2d 288, 294-96 (Alaska 1983). . The city had agreed to defend and indemnify Cole. . A fee award for a prevailing party who recovers no money judgment is presumptively thirty percent of the total fees actually incurred. See Alaska R. Civ. P. 82(b)(2). Cole sought an enhanced award under Rule 82(b)(3). . See Balough v. Fairbanks N. Star Borough, 995 P.2d 245, 270-71 (Alaska 2000) (superior court may award fees for state-law claims segregated from § 1983 claims); Lyman v. State, 824 P.2d 703, 707 (Alaska 1992) (superior court may require party seeking costs to identify and segregate state-law claims from federal-law claims). . Cole also asserts that it was error not to award him costs and prejudgment interest. Because he totally fails to explain the nature of either alleged error, we deem these issues waived for purposes of appellate review. See Adamson v. University of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991). . 659 P.2d 1189, 1194 (Alaska 1983), overruled on other grounds by Atlantic Richfield Co. v. State of Alaska, 723 P.2d 1249, 1252 n. 4 (Alaska 1986). The state's attorneys there spent about 611 hours. The superior court applied private rates of $75 per hour, but reduced the hours to 250, and then awarded twenty percent of the total, for a fee award of $3,750. See 659 P.2d at 1194. . Id. . Bendix Corp. v. Adams, 610 P.2d 24, 27 (Alaska 1980) (quoting Holiday Inns of America, Inc. v. Peck, 520 P.2d 87, 92 (Alaska 1974)). . Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). . See Benson v. Allphin, 786 F.2d 268, 276 (7th Cir.1986). . Wiley v. Doory, 14 F.3d 993, 995 (4th Cir.1994). . Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.1992). . See AS 39.90.120(a). . See Alaska Hous. Fin. Corp. v. Salvucci, 950 P.2d 1116, 1124-25 (Alaska 1997). . See Integrated Resources Equity v. Fairbanks N. Star Borough, 799 P.2d 295, 301 (Alaska 1990) (applying "clearly established" law test to discretionary function immunity claim under AS 09.65.070(d)(2)); Breck v. Ulmer, 745 P.2d 66, 72 (Alaska 1987) (adopting two-prong test articulated by Supreme Court in Harlow, 457 U.S. at 818-19, 102 S.Ct. 2727). . See Hayes v. Charney, 693 P.2d 831, 834 (Alaska 1985) (noting public interest exception to mootness doctrine). . See United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 405-06 (9th Cir.1990). . See id. at 407. . The jury calculated Rice's damages verdict of $353,000 by first finding Rice's total losses to be $1,716,700, and then subtracting $75,200 for "[alctual earnings or pension payments which would not have been earned," and also subtracting $1,288,500 for the "[almount which should have been earned through reasonable and diligent efforts." . Luedtke v. Nabors Alaska Drilling, Inc., 834 P.2d 1220, 1226 (Alaska 1992). . See Anchorage Nissan, Inc. v. State, 941 P.2d 1229, 1240 n. 22 (Alaska 1997). . See Cummins v. King & Sons, 453 P.2d 465, 466-67 (Alaska 1969). . Rice appeals: the exclusion of evidence regarding Pulice's interview for the position of Director of Public Safety; the refusal of the discovery master to review a Fairbanks City Council Executive Session tape; the discovery master's refusal to compel the mayor of Fairbanks to answer deposition questions; the exclusion of expert opinions on Pulice's qualifications for his job; and the exclusion of testimony of prior acts of Pulice.

10354488

Robert ATKINSON, Appellant, v. STATE of Alaska, Appellee

Atkinson v. State

1994-03-11

No. A-4376

486

496

869 P.2d 486

869

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:40:58.497062+00:00

CAP

Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

Robert ATKINSON, Appellant, v. STATE of Alaska, Appellee.

Robert ATKINSON, Appellant, v. STATE of Alaska, Appellee. No. A-4376. Court of Appeals of Alaska. March 11, 1994. Rehearing Denied April 14, 1994. Walter Share, Seattle, and Robert Merle Cowan, Kenai, for appellant. John A. Seukanec, Office of Sp. Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

4790

30266

OPINION BRYNER, Chief Judge. Robert M. Atkinson was charged with two counts of misconduct involving a controlled substance in the fourth degree. Atkinson was convicted by a jury of both charges. He now appeals. On appeal, Atkinson argues that the superior court erred in failing to suppress evidence seized during a search conducted pursuant to an invalid search warrant, in refusing to disclose the juvenile records of the informant whose statements led to the issuance of the warrant, in declining to reopen the evidentiary hearing on Atkinson's motion to suppress in order to allow examination of the informant, in admitting evidence at trial regarding the aggregate weight of marijuana seized from Atkinson's residence, and in refusing to give a lesser-included offense instruction on Count I of the indictment. FACTS On December 7, 1990, Paul Boas, Sr., called the Alaska State Trooper station in Seward and reported to Trooper Bill D. Tyler that he had found marijuana in the bedroom closet of his fifteen-year-old son, P.J. Tyler interviewed Boas and P.J. at the Boas residence approximately an hour later. Tyler spoke first with Boas and then with P.J. in Boas' presence. Tyler tape recorded his interviews. Boas told the trooper that P.J. had brought home some "very green" marijuana, which had evidently been freshly harvested and had not yet been dried. Boas gave the marijuana to Tyler. P.J. acknowledged bringing the marijuana home. He said the marijuana came from a house at Mile 23 of the Seward Highway— approximately one-quarter mile from his own house. P.J. admitted entering the house through the basement window on December 5 to steal the marijuana. He said he saw twenty to thirty medium size plants growing in one basement room; four or five very large plants and numerous small plants grew in another. There was also an extensive lighting system. P.J. did not go upstairs. P.J. further admitted stealing marijuana from this same residence on another occasion during the previous two months. On the previous occasion the marijuana had been growing in a shed that was adjacent to the house. The plants had apparently been moved into the basement due to the cold weather. P.J. also drew Tyler a map depicting the location of the house. P.J. said he thought the house belonged to Atkinson, but that Atkinson was not living in it at that time. Someone else, whose name P.J. did not know, was currently staying there. Upon concluding his interviews with Boas and P.J., Tyler showed P.J.'s map to Tom Clark, an acquaintance of Tyler's who had lived in the area for a number of years. Although the map had no names written on it, Clark immediately identified the location P.J. had marked as Atkinson's residence. Clark further told Tyler that Atkinson might not be in town at the time and that a man named Sam might be taking care of the house in Atkinson's absence. Through a subsequent check of utility records, Tyler confirmed that utilities for the house were listed in the name of Robert Atkinson. Several days after his interview with P.J., Tyler, relying on the foregoing information, applied to Magistrate George Peck for a warrant to search Atkinson's house. Magistrate Peek issued the warrant, finding the information Tyler had received from P.J. to be sufficiently corroborated to establish probable cause. In deciding on the warrant, Magistrate Peck expressly indicated that, for purposes of determining probable cause, he had treated P.J. as a criminal informant whose statements were subject to corroboration under the Aguilar-Spinelli test, rather than as a citizen informant whose statements were presumptively credible. The search warrant was executed on December 11, 1990. During the search, the troopers found numerous marijuana plants in Atkinson's basement, as well as equipment for an extensive marijuana growing operation.- Atkinson was home at the time of the search and made a number of inculpatory statements. Atkinson was subsequently indicted on two counts of misconduct involving a controlled substance in the fourth degree: Count I charged him with manufacturing or possessing with intent to deliver one ounce or more of marijuana, in violation of AS 11.71.-040(a)(2); Count II charged him with simple possession of one pound or more of marijuana, in violation of AS 11.71.040(a)(3)(F). Prior to and during trial, Atkinson made various motions relating to the admissibility of the marijuana seized from his home. He also moved to exclude trial testimony concerning the aggregate weight of the marijuana. Finally, Atkinson requested a lesser-included offense instruction as to Count I. The trial court denied these motions, and, following conviction, Atkinson appealed. DISCUSSION 1. Aguilar-Spinelli Atkinson argues that Tyler's testimony before the magistrate does not withstand scrutiny under the Aguilar-Spinelli test. Specifically, Atkinson contends that Trooper Tyler did not provide sufficient independent corroboration to establish P.J.'s veracity. The Aguilar-Spinelli test continues in effect in Alaska for purposes of determining the validity of a warrant based on informant hearsay. State v. Jones, 706 P.2d 317, 322 (Alaska 1985); Kvasnikoff v. State, 804 P.2d 1302, 1306-07 (Alaska App.1991). This two-prong test requires that the magistrate be presented with evidence sufficient to make an independent determination as to an informant's basis of knowledge (that the informant's statement is in fact based on firsthand knowledge) and veracity (that the information related by the informant is credible). State v. Bianchi, 761 P.2d 127, 130 (Alaska App.1988). Here, P.J. made it clear that the information he gave Tyler concerning the marijuana at Atkinson's house was based on his personal observations. The first prong of Aguilar-Spinelli is plainly satisfied. The second prong, veracity, may be satisfied by evidence of the informant's past reliability or by proof of circumstances establishing the credibility of the informant's current statement. Here, no evidence of P.J.'s past reliability was 'offered to the magistrate. However, there was ample basis for concluding that P.J.'s statement to Tyler was credible. The most common means of establishing the credibility of a particular statement is through "independent police corroboration of detailed facts in the informant's story." Elerson v. State, 732 P.2d 192, 194 (Alaska App.1987) (quoting Jones, 706 P.2d at 325 (citations omitted)). All that is necessary is that the "probability of a lying or inaccurate informer [be] . sufficiently reduced by corroborative facts and observations." Elerson, 732 P.2d at 194 (quoting 1 Wayne R. LaFave, Search and Seizure, § 3.3(f), at 556-57 (1978)). Corroboration of incriminating facts is not required. Schmid v. State, 615 P.2d 565, 576-77 (Alaska 1980); Elerson, 732 P.2d at 194; see also Clark v. State, 704 P.2d 799, 804 & n. 4 (Alaska App.1985); 1 Wayne R. LaFave, Search and Seizure, § 3.3(f), at 683 (2d ed. 1987). In the present case, P.J.'s story that he had obtained marijuana from Atkinson's house was corroborated in numerous particulars. P.J. had in fact been caught possessing marijuana by his father. The marijuana was "green," indicating that it had only recently been harvested. P.J. had told essentially the same story to both his father and Tyler. He had also drawn a map specifying the location of Atkinson's house, which proved to be accurate. P.J. had further provided information concerning the occupants of the house. The information was confirmed by Tyler. Tyler additionally confirmed that the utilities for the house were in fact in Atkinson's name. We need not decide whether these corroborating circumstances would in themselves be sufficient to meet the Aguilar-Spinelli test, for they did not stand alone. As the magistrate properly determined, P.J.'s credibility was additionally bolstered by the self-incriminating nature of his statement. It is well settled that the credibility of an informant's statement may be established when the statement is against the informant's penal interest: "What is needed is a showing that 'the informant's statements against his own penal interest were closely related to the criminal activity' for which probable cause to arrest or search is being established . " 1 W. LaFave, Search and Seizure, § 3.3(c) at 531 (1978). Once the appropriate nexus has been established, the next "fundamental question is whether the informant would have perceived his remarks as highly incriminating." Elerson, 732 P.2d at 194 (quoting LaFave, supra, at 531). See also Bianchi, 761 P.2d at 130. In the present case, Atkinson correctly observes that P.J.'s willingness to admit possessing marijuana might not in itself be sufficiently against his penal interests to establish the truthfulness of his claim that the marijuana came from Atkinson's house. P.J. had been caught in possession of marijuana; he arguably had little to lose by admitting his possession and much to gain by naming someone else who could also be blamed. Courts have consistently been reluctant to recognize such statements as admissions as against penal interest. Cf. Shakespeare v. State, 827 P.2d 454, 458 (Alaska 1992); Jones, 706 P.2d at 325. But P.J. did not merely admit possessing marijuana. In recounting the story that implicated Atkinson, P.J. went far beyond an admission of the misconduct for which he had already been apprehended: he acknowledged engaging in a series of burglaries at Atkinson's house that had as yet evidently gone undetected. Whereas P.J.'s admission of possessing marijuana arguably was not against his penal interest, his admission of burglary plainly was. Because P.J.'s statement implicating Atkinson was an integral part of his admission of burglary, the trial court could properly find P.J.'s statement credible as a declaration against penal interest. See Morrow v. State, 704 P.2d 226, 229 (Alaska App.1985). See also 1 Wayne R. LaFave, Search and Seizure, § 3.3(c), at 648 & n. 163 (2d ed. 1987). Atkinson nonetheless attempts to discredit P.J.'s statement, suggesting that Tyler impliedly promised to give P.J. favorable treatment if he cooperated, thereby inducing P.J. to implicate Atkinson. The record, however, does not support Atkinson's claim that Tyler offered P.J. favorable treatment. More significantly, even if Atkinson's claim were accepted it would be unavailing, since the record establishes that P.J. first admitted the Atkinson burglaries before Tyler's purported inducement occurred. Given that P.J.'s statement was against his penal interest and was to a large extent corroborated, we conclude that the information presented to Magistrate Peck was sufficient to satisfy the Aguilar-Spinelli test and that the magistrate did not abuse his discretion in finding probable cause to issue the disputed search warrant. 2. Material misstatements and omissions Atkinson next claims that the state made significant misstatements to Magistrate Peek and omitted material information in applying for the warrant. Atkinson claims that Tyler: 1) falsely assured the magistrate that no deal had been made with P.J.; 2) misled the magistrate by implying that P.J. would be referred to the juvenile authorities when in fact, he was not; 3) failed to inform the magistrate that P.J. had a delinquency-petition pending against him for burglary and trespassing (a case that Tyler himself had investigated); and 4) failed to fully inform the magistrate about P.J.'s history of drug problems. Atkinson could prevail on his claim only if the record supported a finding that the purported misstatements or omissions were intentional or reckless and that they were material. See State v. Malkin, 722 P.2d 943, 946 (Alaska 1986). Assuming arguendo that Tyler misstated or omitted information, the record suggests that he did not do so recklessly or intentionally. More significantly, the alleged misstatements and omissions could not properly have been deemed material, either individually or collectively: when the misstatements are deleted from the record and the omissions added, ample evidence remains to support a finding of probable cause. In this regard, it is crucial to observe that the supposed misstatements and omissions relate wholly to P.J.'s credibility. They portray P.J. as a dishonest person who had much to gain and little to lose in dealing with the troopers. The collective effect of this information, however, is simply to place P.J. in the shoes of a typical criminal informant. This information might have had a significant bearing on the determination of probable cause if the magistrate had assumed that P.J. was a person whose testimony was presumptively credible. But here, because Magistrate Peck treated P.J. as a criminal informant whose statements were presumptively incredible, the disputed misstatements and omissions could have done nothing more than confirm what the magistrate had already presumed to be true. The trial court did not err in rejecting Atkinson's claims of material misstatements and omissions. 3. Motions for discovery and to reopen proceedings Atkinson moved numerous times for discovery of P.J.'s juvenile records. He argued that the information was relevant to establish P.J.'s motives for claiming that he found marijuana in Atkinson's house and to show that he was seeking to curry favor with the police. The court denied Atkinson's discovery motion after conducting an in camera review of the records. Atkinson also moved for a deposition of P.J. prior to the evidentia-ry hearing on his motion to suppress. The court denied this motion. Atkinson then moved to subpoena P.J. as a witness at the evidentiary hearing. The court deferred ruling on this motion, stating that, once it had heard testimony from the state's witnesses at the suppression hearing, it would determine whether P.J. should testify. At the time of the evidentiary hearing, however, P.J. was unavailable, and his whereabouts were evidently unknown. The court took Atkinson's motion to suppress under advisement without hearing from P.J. Prior to trial, Atkinson requested that the evidentiary hearing on his motion to suppress be reopened, claiming that P.J. had been located and was available. The court declined to hear P.J.'s testimony and eventually denied the motion to suppress. The standard governing disclosure of confidential information to the defendant in a criminal case is as follows: [A]ny material evidence should be disclosed to the defendant. Material evidence means any evidence where "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceedings would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Sledge v. State, 763 P.2d 1364, 1369 (Alaska App.1988) (citations omitted). A party's right to call witnesses at an evidentiary hearing is subject to the trial court's discretion. See Davis v. State, 766 P.2d 41, 43 (Alaska App.1988). We have nevertheless emphasized that "[The] discretion [to exclude witnesses] may be exercised only after the court has made an adequate inquiry into all of the surrounding circumstances, and failure of the trial court to inquire into the circumstances constitutes error." Smaker v. State, 695 P.2d 238, 240 (Alaska App.1985) (quoting State v. Bright, 229 Kan. 185, 623 P.2d 917, 923 (1981)). We have similarly emphasized that "[t]he right of a defendant to present his own witnesses to establish a defense is a fundamental element of due process of law." Smoker, 695 P.2d at 240 (citing Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967)). In the present case, however, Atkinson's arguments concerning the court's denial of his requests to allow discovery of P.J.'s juvenile files and to allow P.J. to testify on the suppression issue are disposed of by our conclusion that the various alleged misstatements and omissions pertaining to P.J.'s lack of credibility had no material bearing on the issue of probable cause. In ruling on the issue of probable cause, Magistrate Peck started from the presumption that P.J. was not credible. Applying the Aguilar-Spinelli criteria, the magistrate nonetheless found sufficient circumstantial guarantees of accuracy to justify the conclusion that P.J.'s statement to Tyler was probably truthful. The additional evidence concerning P.J.'s lack of credibility that Atkinson hoped to gain through disclosure of P.J.'s juvenile records and through calling P.J. to testify at the suppression hearing could have added nothing significant on the issue of probable cause, since it would only have confirmed the presumption adopted by Magistrate Peck at the outset of the warrant hearing, and since it would not have altered the validity of the magistrate's Aguilar-Spinelli determination, which depended on circumstantial guarantees of accuracy rather than on representations as to P.J.'s character for truthfulness. Indeed, even assuming P.J. had appeared at the evidentiary hearing and had testified that his statement to Tyler was wholly fabricated, this would not have negated the showing of probable cause upon which the warrant was issued, since probable cause depends on an objective assessment of the testimony actually before the issuing court, not on an after-the-fact evaluation of the actual truthfulness of that testimony. We find no abuse of discretion in the court's denial of Atkinson's discovery motions, or in its denial of his request to reopen the eviden-tiary hearing to allow P.J. to testify. 4. Failure to record P.J.'s interview in its entirety Tyler recorded the formal interviews he conducted with P.J. and P.J.'s father on December 7, 1990. However, Tyler's preliminary discussions with them were not recorded, and his recorder was turned off at two points during P.J.'s interview. On appeal, Atkinson urges us to extend the rule of Stephan v. State, 711 P.2d 1156 (Alaska 1985) to this situation. In Stephan, the supreme court held that an unexcused failure to electronically record a custodial interrogation conducted in a place of detention violates a suspect's right to due process, under the Alaska Constitution, and . any statement thus obtained is generally inadmissible. Id. at 1158 (footnotes omitted). Atkinson advances this argument for the first time on appeal; accordingly, we review only for plain error. Moreau v. State, 588 P.2d 275, 279-80 (Alaska 1978). Since P.J. was not in custody or a place of detention when his interview occurred, the underlying rationale of Stephan appears to have little bearing on this case. Furthermore, Stephan was meant to protect the due process interests of the person interviewed; the case never suggested a need to record to protect the due process rights of third parties. Finally, a finding of plain error in the context of this case would be appropriate only in exceptional circumstances. Moreau v. State, 588 P.2d 275, 280 (Alaska 1980) (court will ordinarily not treat search and seizure issues as plain error). There are no exceptional circumstances here. We find no merit to Atkinson's claim. 5. Evidence concerning aggregate weight of marijuana The marijuana plants seized from Atkinson's residence were dried and packaged by troopers at the trooper station in Seward. At trial the evidence established that the troopers separated "stems and stuff' from "the leaves and buds," and then mailed the marijuana to the state crime lab in Anchorage to be weighed and analyzed. Catherine E. Saft, a forensic chemist at the crime lab, testified that she weighed the marijuana in the condition in which it was received from the troopers. Saft stated that the lab's policy in weighing marijuana was to remove large stems that would contribute substantially to the weight. Saft said she did not remove the stems and twigs from the marijuana seized in Atkinson's residence, because they were "relatively small." Over Atkinson's objection, Saft was then allowed to testify that the aggregate weight of the marijuana was approximately three pounds. Atkinson contends that the court erred in admitting Saft's testimony concerning aggregate weight, because the marijuana she weighed included stems and twigs. Atkinson relies on the statutory definition of marijuana, which is set forth in AS 11.71.-900(14): "marijuana" means the seeds, and leaves, buds, and flowers of the plant (genus) Cannabis, whether growing or not; it does not include the resin or oil extracted from any part of the plants, or any compound, manufacture, salt, derivative, mixture, or preparation from the resin or oil, including hashish, hashish oil, and natural or synthetic tetrahydrocannabinol; it does not include the stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the stalks, fiber, oil or cake, or the sterilized seed of the plant which is incapable of germination[.] In Gibson v. State, 719 P.2d 687, 690 (Alaska App.1986), however, we made it clear that this statutory definition is not controlling when the aggregate weight of marijuana is at issue in a given case; rather, the issue is governed by AS 11.71.080, which provides: For purposes of calculating the aggregate weight of a live marijuana plant, the aggregate weight shall be the weight of the marijuana when reduced to its commonly used form. Under this provision, determining aggregate weight does not require marijuana to be reduced to its purest, unadulterated statutory form; aggregate weight must instead be based on the "commonly used form." In the present case, the jury was informed of the statutory definitions of marijuana and aggregate weight, and it heard abundant testimony concerning the form in which Atkinson's marijuana was shipped and weighed. There was ample evidence to permit the jury to determine whether the marijuana was in "commonly used form" when it was weighed and whether its aggregate weight in that form exceeded the statutory minimums. Under these circumstances, the trial court did not abuse its discretion in allowing Saft to testify concerning her measurement of aggregate weight. Any uncertainty arising from her testimony created factual questions for the jury, not grounds for exclusion. 6. Lesser-included offense instruction on Count I In Count I of the indictment, Atkinson was charged with misconduct involving a controlled substance in the fourth degree based on the theory that he manufactured or possessed with intent to deliver one ounce or more of marijuana, in violation of AS 11.71.-040(a)(2). Atkinson requested an instruction allowing the jury to consider his guilt on a lesser-included offense, based on simple possession, arguing that the jury might find him guilty of possessing the marijuana in his home without also finding that he manufactured or intended to sell or distribute it. The trial court denied the lesser-included offense instruction. On appeal, the parties dispute the propriety of the trial court's ruling. In context, however, the issue appears to be academic for reasons neither party addresses. The two counts for which Atkinson was convicted involved alternative theories of the same crime: misconduct involving a controlled substance in the fourth degree. As we have already indicated, Count I alleged Atkinson's guilt of the offense for manufacturing (growing) or possessing with intent to deliver one ounce or more of marijuana, AS 11.71.040(a)(2); Count II alleged his guilt of the same offense for simple possession of one pound or more, AS 11.71.040(a)(3)(F). Neither in the indictment nor in its proof at trial did the state attempt to differentiate the marijuana at issue in the two counts; the charge in each count was evidently based on the entirety of the marijuana seized from Atkinson's home during the execution of the search warrant on December 11. The differing amounts Atkinson was alleged to have possessed in Counts I and II merely reflect the differing statutory mínimums applicable under the state's alternative theories of guilt. Because Counts I and II alleged alternative statutory theories of the same crime and were based on a single act of possession involving the same marijuana, Atkinson could properly be convicted of but one offense. Under these circumstances, the trial court's entry of a judgment convicting him of two separate counts was barred by double jeopardy and amounted to plain error. Cf. People v. Brown, 185 Colo. 272, 523 P.2d 986, 988 (1974) (separate convictions for simple possession and possession with intent to sell the same drugs barred by double jeopardy when they arise from a single act of possession), overruled on other grounds, Villafranca v. People, 194 Colo. 472, 573 P.2d 540 (1978). Since Atkinson does not dispute the trial court's instructions as to Count II, and since his conviction for two counts was improper regardless of whether he was entitled to a lesser-included offense instruction on Count I, we direct the trial court, on remand, to enter an amended judgment reflecting conviction only on Count II. Because amending the judgment in this manner will render Atkinson's lesser-included offense argument moot, we need consider it no further. In all other respects, the judgment is AFFIRMED. . See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). . AS 11.71.040(a) provides, in relevant part: (a) Except as authorized in AS 17.30, a person commits the crime of misconduct involving a controlled substance in the fourth degree if the person (2) manufactures or delivers, or possesses with the intent to manufacture or deliver, one or more preparations, compounds, mixtures. or substances of an aggregate, weight of one ounce or more containing a schedule VIA controlled substance; (3) possesses (F) one or more preparations, compounds, mixtures, or substances of an aggregate weight of one pound or more containing a schedule VIA controlled substance[.] . Atkinson's theory of relevance and his offers of proof before the trial court focused on his desire to explore P.J.'s potential motives for fabricating an accusation against Atkinson, particularly the possibility that P.J. might have construed certain statements by Tyler as inducements to fabricate a story. As we have already indicated, the record establishes that any remarks by Tyler that PJ. might have construed as inducements to cooperate occurred only after P.J.'s initial admission that he obtained the marijuana by committing a burglary. In moving to suppress, Atkinson did not allege, or offer any reasonable basis to believe, that P.J.'s testimony or juvenile records might establish an intentional deception of the magistrate by Tyler — that is, Tyler's knowledge of and participation in a fabricated accusation against Atkinson. Under the circumstances, the record provides no realistic basis for concluding that P.J. could have added anything of substance on the issue of probable cause apart from information relating to his own lack of credibility. On appeal, Atkinson does not contend that he was deprived of the opportunity to call P.J. as a witness at trial. It appears that, at trial, the only relevant information P.J. might have provided was that Atkinson did not appear to be residing at home when P.J. stole the marijuana. The trial court instructed the jury, without objection, that P.J. would have testified to this effect had he been called. . Atkinson's claim that he argued the Stephan issue below misrepresents the record. Atkinson merely cited Stephan below by analogy to sup port his argument that the two gaps in the tape recording rendered the entire interview suspect. At no time did Atkinson argue that the tape recording requirement of Stephan was applicable or was violated. . See AS 11.71.050(a)(3)(E) (defining simple possession of eight ounces or more of marijuana as fifth-degree misconduct involving a controlled substance, a class A misdemeanor), and AS 11.-71.060(a)(4) (defining simple possession of four ounces or more as sixth-degree misconduct, a class B misdemeanor). . An example of the same problem in a somewhat more familiar statutory setting makes it easier to see the inappropriateness of convicting on more than one count. Alaska Statute 11.41.-220 defines several alternative ways of committing third-degree assault, including recklessly placing a person in fear of imminent serious physical injury by means of a dangerous instrument (subparagraph (a)(1)(A)) and recklessly causing physical injury by means of a dangerous instrument (subparagraph (a)(1)(B)). An offender who recklessly assaults another person with a dangerous instrument, simultaneously placing the victim in fear and causing physical injury, can certainly be prosecuted for third-degree assault under both statutory theories. However, only one third-degree assault occurs. Because the alternative statutory theories define the same offense and the offender's conviction results from a single criminal act involving a single victim, conviction for more than one count of assault is barred. Arguably double jeopardy might not have precluded separate convictions if it were clear that Atkinson's conviction on Count I was based on his manufacture of the marijuana rather than on his possession of it, since different criminal acts might then have been found. See Davis v. State, 766 P.2d 41, 45-46 (Alaska App.1987). However, neither the jury instructions nor the state's argument at trial limited the jury to convicting based on the theory of manufacture. Since the record is ambiguous on the issue, the ambiguity must be resolved in Atkinson's favor. Cf. Clifton v. State, 758 P.2d 1279, 1285 (Alaska App.1988).

10353906

Mark BLUMENSHINE, Appellant/Cross-Appellee, v. Wilfred J. BAPTISTE, Sr., and Loretta Janet Baptiste, Appellees/Cross-Appellants

Blumenshine v. Baptiste

1994-03-04

Nos. S-4997, S-5018

470

477

869 P.2d 470

869

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:40:58.497062+00:00

CAP

Before MOORE, C.J., and RABINOWITZ, BURKE, MATTHEWS and COMPTON, JJ.

Mark BLUMENSHINE, Appellant/Cross-Appellee, v. Wilfred J. BAPTISTE, Sr., and Loretta Janet Baptiste, Appellees/Cross-Appellants.

Mark BLUMENSHINE, Appellant/Cross-Appellee, v. Wilfred J. BAPTISTE, Sr., and Loretta Janet Baptiste, Appellees/Cross-Appellants. Nos. S-4997, S-5018. Supreme Court of Alaska. March 4, 1994. Michael L. Lessmeier and Sheldon E. Winters, Hughes, Thorsness, Gantz, Powell & Brundin, Juneau, for appellant/cross-appel-lee. Loren Domke, Loren Domke, P.C., Juneau, for appellees/cross-appellants. Before MOORE, C.J., and RABINOWITZ, BURKE, MATTHEWS and COMPTON, JJ.

4346

27528

OPINION RABINOWITZ, Justice. Mark Blumenshine asserts that the superi- or court erred in failing to reduce the jury's award of past medical expenses to Wilfred J. Baptiste, Sr. based upon Baptiste's comparative fault. The superior court ruled that Blumenshine waived the point because the jury's verdict was inconsistent and Blu-menshine failed to object to the inconsistency before discharge of the jury. Baptiste cross-appeals, claiming the superior court erred in setting aside the jury's award of future medical expenses and in determining that Blu-menshine was the prevailing party in awarding attorney's fees. We affirm the superior court's set aside of the award of future medical expenses and its refusal to reduce the jury's award for past medical expenses. We reverse the superior court's prevailing party determination. I. FACTUAL AND PROCEDURAL BACKGROUND Baptiste and Blumenshine were involved in an automobile accident in which Baptiste was injured. Blumenshine admitted that he was negligent and that his negligence proximately caused injury to Baptiste. However, Blu-menshine contended that Baptiste's own negligence was partly or fully responsible for the latter's injuries. At trial Baptiste sought compensatory damages for past medical expenses in the amount of $19,371, future medical expenses in the same amount, past and future physical impairment, past and future pain and suffering; he also sought punitive damages. Baptiste's wife sought damages for loss of consortium. In a special verdict, the jury awarded Baptiste $19,371.36 for past medical expenses, $2,500 for future medical expenses, $8,000 for past and future physical impairment and $8,001 for past and future pain and suffering. The jury awarded no loss of consortium or punitive damages. The jury also found that Baptiste was 25% comparatively negligent, and that this negligence was a legal cause of his injuries. An asterisk and handwritten note on the jury's special verdict form indi cated that the damage amounts specified in the special verdict categories "should be net amounts[.] Plaintiff to receive all amounts." Upon return of the special verdict, the superior court held a bench conference with the attorneys. The court called the attorneys' attention to the jury's handwritten note, but did not at that time inform them of the amounts awarded. With the attorneys' consent, the superior court asked the jury whether it intended "that these numbers have included your calculation as to comparative negligence, and that you expect the plaintiff to receive all those numbers." The foreperson responded "Yes." The superior court then read the special verdict into the record. After both attorneys declined the opportunity to poll the jury, the superior court discharged the jury. Neither counsel objected to its discharge. Blumenshine later moved for judgment notwithstanding the verdict (JNOV) on the basis that (1) the award of past medical expenses did not reflect Baptiste's 25% comparative negligence, and (2) the evidence presented was insufficient to support the award of future medical expenses. Blumenshine also moved for a determination that he was the prevailing party for purposes of an award of attorney's fees and costs. The superior court denied Blumenshine a 25% reduction in the jury's award of past medical expenses. The court granted Blu-menshine's motion with respect to future medical expenses and decided Blumenshine was the prevailing party. This appeal and cross-appeal followed. II. DISCUSSION A. Waiver of Inconsistency in Jury's Verdict Blumenshine argues that the superior court erred in declining to reduce the jury's award of past medical expenses to reflect Baptiste's comparative negligence. In response, Baptiste argues that the jury's ver-diet as to past medical expenses was inconsistent, and that Blumenshine waived any objection to the award by failing to challenge the consistency of the verdict prior to the jury's discharge. Baptiste adduced evidence showing he had sustained $19,371 in damages for past medical expenses. The jury found that Baptiste had suffered $19,371 in past medical expenses and that 25% of his damages were sustained as a consequence of his comparative fault. Without the jury's note to its special verdict, Baptiste's award would have been reduced by 25% to reflect his comparative negligence. However, the jury's note and the foreperson's response to the superior court's question indicated that the jury had already reduced the amount awarded for past medical expenses in consideration of Baptiste's comparative negligence. Given the evidence produced as to past medical expenses, the amount of damages for past medical expenses found by the jury, and the jury's note to its special verdict, it is clear that the verdict as to this damage issue is inconsistent. Blumenshine urges us to ignore the handwritten note as "surplusage." In support of this contention, Blumenshine cites instances in which courts have disregarded extraneous notes from the jury. Barrow v. Talbott, 417 N.E.2d 917, 921 (Ind.App.1981) (disregarding a note that stated that portion of award was for future medical expenses); Gilmore v. Control Data Corp., 442 N.W.2d 835, 839 (Minn.App.1989) (disregarding a note that stated that attorney's fees and court costs were to be awarded); Gustavson v. O'Brien, 87 Wis.2d 193, 274 N.W.2d 627, 634 (1979) (disregarding a note regarding contributory negligence where it was not an issue in the case). The notes in Barrow and Gilmore did not create any inconsistencies. Rather, they constituted additional "findings" the jury was not asked to make. Here the jury's note explained its award for past medi cal expenses and therefore, it cannot be struck as mere surplusage. "To give effect to the jury trial right in civil cases" this court will examine the pleadings, instructions, arguments and evidence to obtain a view of the case that harmonizes what seems at first to be an inconsistent verdict. Schmit v. Stewart, 601 P.2d 266 (Alaska 1979). "We will look for consistency, but will not create it where there is none." City of Homer v. Land's End Marine, 459 P.2d 475, 478 (Alaska 1969). Blumenshine has failed to present any plausible theory of consistency short of ignoring the note and the foreperson's response to the superior court's inquiry. Based on the inconsistency of the jury's verdict, Baptiste argues that Blu-menshine waived any objection to the verdict. We agree. "Challenges to the consistency of a verdict are deemed waived unless made prior to the discharge of the jury." Buoy v. ERA Helicopters, Inc., 771 P.2d 439, 446 n. 7 (Alaska 1989); City of Homer, 459 P.2d at 480 (inconsistency between total award of $84,000 on a twenty-year contract and finding that plaintiff had suffered $500 damage in three years and eight months was waived). We have noted that the waiver rule "promotes the fair and expeditious correction of error." Id. (quoting Cundiff v. Washburn, 393 F.2d 505, 507 (7th Cir.1968)). The superior court called the note to the attorneys' attention and with the attorneys' approval questioned the jury about its intent. After reading the verdict into the record and offering to poll the jury, the superior court discharged the jury. Despite this notice, counsel allowed the jury to be discharged and the special verdicts filed. Since Blu-menshine failed to challenge the consistency of the special verdict pertaining to damages for past medical expenses before the jury was discharged, we hold that he waived this argument. B. Award, of Future Medical Expenses In response to Blumenshine's motion for JNOV, the superior court set aside the jury's award of $2,500 for future medical expenses. Baptiste presented medical testimony that his pain and disability were permanent and detailed evidence of his past medical expenses. He asserts that his future medical expenses can be inferred from the permanency of his injuries and the cost of his past medical treatment for pain and disability caused by the accident in question. To recover for future medical expenses one must prove to a reasonable probability that they will occur. Maddocks v. Bennett, 456 P.2d 453, 458 (Alaska 1969). "[T]he jury cannot be allowed to speculate or guess in making allowance for future medical expenses; there must be some data furnished the jury upon which it might reasonably estimate the amount to be allowed for this item." Henderson v. Breesman, 269 P.2d 1059, 1061-62 (Ariz.1954), quoted in City of Fairbanks v. Nesbett, 432 P.2d 607, 618 n. 31 (Alaska 1967). Baptiste was required to present both evidence that medical treatment would be necessary, and evidence of the treatment's anticipated cost to recover for future medical expenses. The Nevada Pain and Rehabilitation Center (Center), where Baptiste participated in a twenty-day chronic pain management program, concluded that Baptiste did not need any further medical evaluations or medical treatment. The Center recommended that Baptiste exercise, return to work and lose weight. Although cortisone treatment was suggested by a physician, Baptiste did not indicate that he would undertake the treatment or what this treatment would cost. Accordingly, Baptiste did not prove to a reasonable certainty that he would incur future medical expense. We therefore affirm the superior court's grant of JNOV as to the jury's award of damages for future medical expenses. C. Prevailing Party Determination "[A]n award of attorney's fees to the prevailing party is committed to the broad discretion of the trial court and will be set aside only if manifestly unreasonable." Myers v. Snow White Cleaners & Linen Supply, Inc., 770 P.2d 750, 752 (Alaska 1989). We will reverse a superior court's prevailing party determination "only upon finding an abuse of discretion." Buoy v. ERA Helicopters, Inc., 771 P.2d 439, 448 (Alaska 1989). Upon reconsideration, the superior court confirmed its decision that Blumenshine was the prevailing party under Alaska Civil Rule 82 for several reasons. First, Baptiste's recovery was slight compared to the $700,000 in damages requested. Second, Blumenshine had conceded that he was negligent, that his negligence was a proximate cause of Baptiste's injuries, and that Baptiste should recover his medical expenses. Baptiste lost on the issues of loss of consortium and punitive damages. Baptiste also unsuccessfully contended that he was not comparatively negligent. Baptiste claims that he is the prevailing party because the jury awarded him substantial damages for past and future medical expenses, for physical impairment, and for pain and suffering. We have consistently held that the prevailing party is the one who prevailed on the main issues. Hillman v. Nationwide Mut. Fire Ins. Co., 855 P.2d 1321, 1327 (Alaska 1993); Buoy, 771 P.2d at 448; Hutchins v. Schwartz, 724 P.2d 1194, 1204 (Alaska 1986); Alaska Placer Co. v. Lee, 553 P.2d 54, 63 (Alaska 1976); Cooper v. Carlson, 511 P.2d 1305, 1308 (Alaska 1973); Owen Jones & Sons, Inc. v. C.R. Lewis Co., 497 P.2d 312, 314 (Alaska 1972); Buza v. Columbia Lumber Co., 395 P.2d 511, 514 (Alaska 1964). A plaintiff may prevail even if he or she failed to recover all of the relief prayed for. Hillman, 855 P.2d at 1328; Alaska Placer, 553 P.2d at 63 (plaintiffs seeking $73,298 and awarded $34,026 after offset were prevailing party); Buza, 395 P.2d at 514 (plaintiff seeking return of logs and damages and awarded possession of logs but no damages determined to be the prevailing party). A recovery does not guarantee prevailing party status. Owen Jones, 497 P.2d at 314-15; see also Buoy, 771 P.2d at 448 (plaintiffs award offset entirely by previous settlements); Hutchins, 724 P.2d at 1204 (recovery of $1,937 less 40% on $275,000 claim considered de minimis, plaintiff not prevailing party); Hayer v. National Bank of Alaska, 619 P.2d 474, 477 (Alaska 1980) (remanding where trial court relied solely on the fact that plaintiff received an affirmative recovery). "[A] litigant who successfully defeats a claim of great potential liability may be the prevailing party even if the other side receives an affirmative recovery." Buoy, 771 P.2d at 448. However, a plaintiff should not be penalized for a small recovery. Otherwise, a plaintiff with a modest recovery who must pay substantial attorney's fees could end up with a net loss. "The purpose of Civil Rule 82 is to partially compensate a prevailing party for the costs and fees incurred where such compensation is justified and not to penalize a party for litigating a good faith claim." Malvo v. J.C. Penney Co., Inc., 512 P.2d 575, 588 (Alaska 1973). Although Baptiste did not prevail on every issue in this case, he succeeded in obtaining the full damages requested for past medical expenses, and $16,001 for past and future physical impairment and pain and suffering. Since he recovered a significant damage award on the main issues, Baptiste was the prevailing party for the purpose of awarding attorney's fees. We therefore conclude that the superior court abused its discretion in determining that Blumenshine was the prevailing party. III. CONCLUSION The superior court's judgment is AFFIRMED as to past and future medical expenses and is REVERSED as to its prevailing party determination. We REMAND for determination of an award of attorney's fees to Baptiste. MATTHEWS, J., dissents in part. COMPTON, J., dissents in part. . The superior court granted Baptiste's motion to reconsider its prevailing party determination. After further briefing, the superior court again found Blumenshine to be the prevailing party. . Comparative fault diminishes the amount awarded as compensatory damages. See AS 09.-17.060. "The court shall enter judgment against each party liable on the basis of several liability in accordance with that party's percentage of fault." AS 09.17.080(d). . The parties agree that whether Blumenshine waived objection to the- jury's award of past medical expenses on the grounds of inconsistency is a question of law. In reviewing a superior court's ruling on a motion for JNOV, we will not weigh conflicting evidence or judge the credibility of witnesses. Rather, we will determine whether the evidence, when viewed in the light most favorable to the non-moving party, is such that reasonable persons could not differ in their judgment. Great Western Sav. Bank v. George W. Easley Co., 778 P.2d 569, 578 (Alaska 1989).

10426853

Miller Z. WESTON, Petitioner, v. STATE of Alaska, Respondent

Weston v. State

1984-05-18

No. 5734

1119

1124

682 P.2d 1119

682

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:41:21.126759+00:00

CAP

Before BURKE, C.J., and RABINOW-ITZ, MATTHEWS, COMPTON and MOORE, JJ.

Miller Z. WESTON, Petitioner, v. STATE of Alaska, Respondent.

Miller Z. WESTON, Petitioner, v. STATE of Alaska, Respondent. No. 5734. Supreme Court of Alaska. May 18, 1984. Christine Schleuss, Asst. Public Defender, Anchorage, W. Grant Callow, II, Asst. Public Defender, Anchorage, Dana Fabe, Public Defender, Anchorage, for petitioner. Charles M. Merriner, Asst. Atty. Gen., Anchorage, Norman C. Gorsuch, Atty. Gen., Juneau, for respondent. Before BURKE, C.J., and RABINOW-ITZ, MATTHEWS, COMPTON and MOORE, JJ.

2802

16551

OPINION MATTHEWS, Justice. This petition for hearing concerns the question of whether Miller Weston was improperly denied an instruction on self-defense as justification to the murder charge for which he was convicted. The court of appeals upheld Weston's conviction, ruling that any error was harmless. We reverse and order a new trial. I. THE FACTS On June 9, 1980, Miller Weston killed Donald Ahsoak in Barrow, Alaska. Weston'is 5'7" tall, weighed approximately 150 pounds, and was 26 years old at the time of the killing. Ahsoak was 60 years old and approximately the same height and weight as Weston. Weston first met Ahsoak on the day of the killing, when they, along with several other men, spent the afternoon on the beach in Barrow drinking whiskey. At about 6:00 p.m. Ahsoak invited Weston and another man to his home, where they continued drinking. When the other man left, nothing unusual had happened. There were no third party witnesses to the homicide. Weston testified that at about 9:30 p.m. Ahsoak left the house for about ten minutes. Upon Ahsoak's return, Weston prepared to leave, but Ahsoak shouted "Wait a minute" and demanded money. Weston, who had already contributed twenty dollars for liquor, denied knowing what Ahsoak was talking about. Ahsoak responded, "Come on, you Yupik thief, where's my money?" and charged at Weston with a knife. In the struggle that followed, Weston managed to shake loose the knife. The struggle continued, but eventually Ahsoak lost his balance and fell to the floor. Weston got on top of Ahsoak, grabbed the knife, and said that he was going to kill Ahsoak. Ahsoak said "Don't, don't Miller," but Weston cut his throat, killing him. Weston turned himself in to the police later that evening after consulting with a friend. Weston was convicted in a jury trial of first degree murder for the killing of Ahs-oak. Judge Jay Hodges denied the defense request for an instruction on self-defense. However, the trial court did give the jury an instruction on imperfect self-defense. The court of appeals upheld Weston's conviction, but did not reach the issue of whether the evidence was sufficient to require instructing the jury on self-defense. Weston v. State, 656 P.2d 1186, 1189 (Alaska App.1982). The court of appeals held that even if an instruction on self-defense was needed, the failure to give one was harmless error because the jury had been instructed as to imperfect self-defense and had rejected that theory in convicting Weston of murder. Id. at 1188-89. II. SELF-DEFENSE Self-defense will justify the use of deadly force if the defender reasonably believes that the use of deadly force is necessary to defend himself from death or serious physical injury. AS 11.81.335. Thus, to employ self-defense a defendant must satisfy both an objective and subjective standard; he must have actually believed deadly force was necessary to protect himself, and his belief must be one that a reasonable person would have held under the circumstances. A court is obliged to instruct the jury on self-defense only when the record contains "some evidence . which places in issue the defense_" AS 11.81.-900(b)(15)(A); see also Bangs v. State, 608 P.2d 1, 5 (Alaska 1980); Toomey v. State, 581 P.2d 1124, 1126 n. 6 (Alaska 1978). Under this "some evidence" standard,' a self-defense instruction must be given if there is evidence from which a reasonable juror could entertain a reasonable doubt as to the defendant's guilt. See LaLonde v. State, 614 P.2d 808, 810 (Alaska 1980) ("In accordance with our decision in Christie v. State, 580 P.2d 310, 313-16 (Alaska 1978), involving a defense request for an insanity instruction, we find that a 'heat of passion' instruction would have been proper only if LaLonde had produced 'some evidence' that she had acted because of extreme provocation, i.e., if there had been evidence in light of which a reasonable juror could have entertained a reasonable doubt with respect to LaLonde's malice.") (footnote omitted); see also Paul v. State, 655 P.2d 772, 775 (Alaska App.1982); Folger v. State, 648 P.2d 111, 113 (Alaska App.1982). In making this determination, the evidence should be viewed in the light most favorable to the defendant, Bangs, 608 P.2d at 5; Paul, 655 P.2d at 775, without questioning his credibility, Toomey, 581 P.2d at 1126 n. 6. A. The Objective Standard The issue here is whether Weston made a sufficient showing to raise a jury question as to whether a reasonable person would have acted in self-defense under the circumstances. We emphasize that the question is not whether Weston was in actuality mistaken in this belief. As Justice Holmes stated in Brown v. United States, 256 U.S. 335, 343, 41 S.Ct. 501, 502, 65 L.Ed. 961, 963 (1921), "[djetached reflec tion cannot be demanded in the presence of an uplifted knife." We conclude Weston did produce "some evidence" that a reasonable person might have used deadly force under the circumstances. The evidence, viewed in the light most favorable to Weston, shows that Ahsoak had made an unprovoked attack on Weston with a knife immediately prior to the killing. Further, Ahsoak had several guns and knives close at hand with which to continue his attack and was intoxicated to the point of irrationality. Under these circumstances, a jury could have concluded that at least a reasonable doubt existed that the danger to Weston had not ceased and thus that he acted reasonably in self-defense. B. The Subjective Standard We also conclude that Weston made a sufficient showing that he actually believed self-defense was necessary to avoid death or serious injury. First, evidence that a reasonable person might have believed in the necessity of using deadly force also provides circumstantial evidence that Weston held such a belief. The State argues, however, that Weston's testimony establishes that he acted out of anger, rather than fear. We do not believe Weston's testimony leads ineluctably to this conclusion. Weston did testify that he was angry when he killed Ahsoak and that, "[m]y force and anger killed Mr. Ahsoak." However, Weston also testified that he killed Ahsoak "[bjecause I was afraid . " Further, he stated that during the struggle he was scared because he thought that Ahsoak was going to kill him, and that he was still scared even after the knife was dislodged from Ahsoak's hand. Thus, some of what Weston said would support a conclusion that Weston acted out of fear, while other parts of his testimony tend to contradict such a conclusion. Since the "some evidence" rule requires crediting testimony which is favorable to the defense and discrediting that which is unfavorable, we find that Weston provided some evidence that he actually believed his conduct was necessary to insure his own safety. Consequently, the trial court erred in not instructing the jury on self-defense as justification for the killing. III. HARMLESS ERROR The court of appeals concluded that even if the trial court had committed error by not instructing the jury on self-defense, the error was harmless since the jury rejected the affirmative defense of imperfect self-defense. We disagree. An error can be considered harmless in this context if the verdict necessarily shows that the jury would have rejected the defense contained in a requested instruction had the instruction been given. See Christie v. State, 580 P.2d 310, 320 (Alaska 1978). The jury, by rejecting imperfect self-defense, concluded that Weston had not proved by a preponderance of the evidence that he actually believed that he was acting in self-defense. The burden of establishing imperfect self-defense rests on the defendant, and the standard of proof is a preponderance of the evidence. In contrast, the burden of disproving self-defense rests on the State and the standard of proof is beyond a reasonable doubt. The jury's verdict shows that it found that the evidence either was evenly balanced or preponderated in favor of the state on the issue of actual belief; it does not show, however, that the jury found beyond a reasonable doubt that Weston did not hold such a belief. Thus, the trial court's error was not harmless. For the reasons stated above, we REVERSE the conviction of Miller Weston for first degree murder and REMAND for a new trial. COMPTON, J., dissents. . AS 11.81.335 provides: (a) Except as provided in (b) of this section, a person may use deadly force upon another person when and to the extent (1) the use of nondeadly force is justified under AS 11.81.330; and (2) the person reasonably believes the use of deadly force is necessary for self defense against death, serious physical injury, kidnapping, sexual assault in the first degree under AS 11.41.410(a)(1) or (2), sexual assault in the second degree, or robbery in any degree. (b) A person may not use deadly force under this section if the person knows that, with complete personal safety and with complete safety as to others, the person can avoid the necessity of using deadly force by retreating, except there is no duty to retreat if the person is (1) on premises which the person owns or leases and the person is not the initial aggressor; or (2) a peace officer acting within the scope and authority of the officer's employment or a person assisting a peace officer under AS 11.-81.380. . AS 11.81.900(b)(15)(A) provides: (15) "defense", other than an affirmative defense, means that (A) some evidence must be submitted which places in issue the defense; . A shotgun and rifle were leaning against the wall in the living room at almost the exact location at which the struggle began. A loaded pistol was on a shelf, and knives lay on the kitchen counter top in plain view. While Weston did not testify to knowledge of these weapons, a jury could easily infer such knowledge from the fact that Weston had been in the home drinking for more than three hours prior to the killing. . Ahsoak's blood alcohol level was .269 percent at the time of his death. A pathologist indicated that this level of alcohol was sufficient to cause irrational acts. .Imperfect self-defense, at the time of the killing, was an affirmative defense which would reduce the crime of murder to voluntary manslaughter. This affirmative defense essentially consisted of the same elements as the justification of self-defense, however the defendant need not show that a reasonable person would have acted as he did. Imperfect self-defense has since been repealed by ch. 102, § 44-45, SLA 1980. . After the defendant has introduced some evidence which places self-defense at issue, AS 11.81.900(b)(15)(B) provides, "the state then has the burden of disproving the existence of the defense beyond a reasonable doubt...."

11116628

M.W., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Appellee

M.W. v. State, Department of Health & Social Services

2001-04-20

No. S-9557

1141

1147

20 P.3d 1141

20

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:43:06.307332+00:00

CAP

Before FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

M.W., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Appellee.

M.W., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Appellee. No. S-9557. Supreme Court of Alaska. April 20, 2001. Stuart G. Ross, Law Office of Stuart G. Ross, Anchorage, for Appellant. Kelly Cillilan-Gibson, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, joined by Robert R. Polley, Assistant Public Advocate, and Brant McGee, Public Advocate, Anchorage, as guardian ad litem, for Appellee. Before FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

3315

20232

OPINION BRYNER, Justice. I, INTRODUCTION Mark W. appeals the superior court's termination of his parental rights to his daughter, Michelle. The superior court determined that Michelle was a child in need of aid because she had been abandoned by Mark; that Mark failed, within a reasonable time, to remedy the conduct or conditions that placed Michelle at a substantial risk of harm; that the Department of Health & Human Services made reasonable efforts to provide family remedial services; and that it was in Michelle's best interests to terminate Mark's parental rights. Because the record supports the superior court's factual findings and the court adequately applied the law to these facts, we affirm the termination order. II. FACTS AND PROCEEDINGS On July 5, 1998, Laura F. gave birth to a daughter, Michelle Mark W. is Michelle's father. Because both mother and daughter tested positive for cocaine, the Department of Health and Social Services (department) received a report of harm. Laura has an extensive history with the department: her substance abuse, psychological problems, and pattern of abusing and neglecting her children have resulted in the termination of Laura's parental rights as to her previous four children. Laura's history prompted the department to assume custody of Michelle at birth. A department social worker, Linda Gonzales, met with Mark at the hospital soon after Michelle's birth. Mark claimed that he could care for Michelle, but he refused to provide information on his living arrangements. His refusal to cooperate and his relationship with Laura caused the department to place Michelle in a foster home when she was three days old. Patricia Driggins, the social worker assigned to the case, investigated the possibili ty of placing Michelle with her father. She visited Mark at his residence-the Ingra House-a boarding house that permits convicted felons to reside there. During this visit, Driggins explained that the Ingra House was an unsuitable place for a newborn and that Mark would need to find suitable housing before 'the department could consider placing Michelle in his custody. A month later, Driggins met with Mark and Laura at an initial case conference to discuss their case plan for receiving custody of Michelle The plan required Mark to complete a parenting class, obtain suitable housing, and visit with Michelle: Although Mark promised that he would call to set up visitation, he failed to recontact the office. During the year that followed-between August 12, 1998, and July 1999-Mark continued living in the Anchorage area but never visited or spoke to his daughter. From Michelle's birth to the November 1999 termination trial Mark, by his own account, saw Michelle "[mlJaybe three-and-a-half [times]. If you count the times [he'd] seen her in a vehicle." After the August 1998 case conference, Driggins was unable to locate either parent. She consulted Mark's last known place of employment, Laura's probation officer, the phone book, and other sources, but had no success. Because Laura and Mark did not comply with the case plan, the department petitioned to terminate their parental rights in April 1999 and then published notice of the proceedings in the Anchorage Daily News. In July 1999 Laura gave birth to another child, John, also fathered by Mark. The department received a report of harm, assumed custody of John at birth, and placed him with Michelle's foster family. Mark treated his newborn son differently. He began complying with his case plan, and eventually fulfilled its requirements by obtaining a substance abuse assessment, completing parenting classes, and visiting John. In October 1999 the department placed John with his father. Meanwhile, Michelle's termination petition proceeded toward trial. At the termination trial, in November 1999, both parents admitted to abandoning Michelle. They offered no specific reasons for failing to visit her or comply with her case plan. Laura testified that she had been "trying to get [her] life together," and Mark explained that he had been "endeavoring to help [Laural." Mark acknowledged that he could have visited Michelle; he made no attempt to exeuse or defend his actions. At the end of the trial, Superior Court Judge Karen L. Hunt terminated Laura's and Mark's parental rights Michelle remains with her foster family. Mark appeals. III. DISCUSSION A. Standard of Review We apply the clearly erroneous standard when reviewing a trial court's termination findings; clear error arises only when our review of the entire record leaves us with a definite and firm conviction that the superior court made a mistake. Whether the superior court's factual findings satisfy applicable child in need of aid (CINA) statutes and rules is a question of law that we review de novo. B. The Superior Court Did Not Err in Terminating Mark's Parental Rights. 1. The superior court's findings Under AS 47.10.088(a), a court entering an order that terminates parental rights must find: (1) that the child is in need of aid under AS 47.10.011; (2) that the parent failed to remedy the conduct or conditions that placed the child at a substantial risk of harm or failed to remedy the conduct or conditions within a reasonable time; and (8) that the department made reasonable efforts to provide family support services. Furthermore, the court must "consider the best interests of the child" and any fact relating thereto. Here the superior court based its order on the following findings: b. [Mark] has had only brief contact with the minor since the minor's birth on July 5, 1998. Although the evidence suggests that the father remained in the Anchorage area, there were few attempts to contact the child or to contact the Department and work a treatment plan. d. The father's conduct constitutes a conscious disregard of parental obligation, which has resulted in the destruction of the parent-child relationship. j. The father's lack of contact with the child for a period exceeding six months, including failure to provide for the physical, mental, social, or emotional needs of the child since the minor's birth, constitutes substantial neglect and abandonment by the father. 1. [Laura and Mark] were not truthful to the court regarding the nature of their relationship. [Mark] testified that he would continue to put [Laura's] needs before the needs of his children. 7. That based upon [Mark's] testimony, in addition to the testimony of the social workers, the court finds clear and convine-ing evidence that the parental conduct which caused the minor to be a child in need of aid is likely to continue if the parental rights of [Mark] are not terminated. 8. There is clear and convincing evidence that the parents have not remedied the conduct or conditions in the home that place the child at substantial risk of harm. 9. Pursuant to AS 47.10.088[ (a)(1)](B)(ii), the parents have failed, within a reasonable time, to remedy the conduct or conditions in the home that place the child in substantial risk so that returning the child to the parents would place the child at substantial risk of physical or mental injury. 10. The department has shown by a preponderance of the evidence that it has made reasonable efforts to provide remedial services to the family pursuant to AS 47.10.086. 11. Termination of parental rights is in the best interests of the child. 2. The superior court correctly deter-mained that Michelle was a child in need of aid. The superior court relied on three separate grounds in finding Michelle to be a child in need of aid under AS 47.10.011: Michelle's parents (1) abandoned her; (2) were unwilling or unable to provide care, supervision, or support; and (8) engaged in conduct or created conditions that placed her at a substantial risk of suffering substantial physical harm. Mark does not dispute or appeal these findings. 3. The superior court correctly deter-mained that Mark failed to act within a reasonable time to remedy the abandonment. Alaska Statute 47.10.088(a)(1)(B) required the court to find, by clear and convincing evidence, that Mark (i) ha[d] not remedied the conduct or conditions in the home that place[d] the child at substantial risk of harm; or (i) ha[d] failed, within a reasonable time, to remedy the conduct or conditions in the home that place[d] the child in substantial risk so that returning the child to the parent would place the child at substantial risk of physical or mental injuo-ry.... Mark asserts that, by the time of the termination trial, he had remedied the conduct or conditions that placed Michelle at risk of harm. He had complied with his son's case plan, and the department returned John to him in October 1999. But Mark's argument ignores the superior court's finding that he failed to remedy the conduct or conditions that placed Michelle at risk of harm "within a reasonable time," as required under AS 47.10.088(a)(1)(B)Gi). Mark does recognize that Dr. Richard Lazur, the state's expert, "testified how im-. portant it is for a child to bond with [her] parents during the crucial early months of life and how necessary it was for parents to visit with their children." Further, he admits that he now understands the significance of bonding with a child in the first few months of life and how it would hurt John to be taken away from his father. Yet Mark inexplicably urges us to find that one year is a reasonable time to remedy the effects of his abandonment under AS 47.10.088(a)(1)(B)(ii). We disagree. The state cites two cases, In re H.C. and O.R. v. State, Department of Health & Social Services, in support of its argument that a parent's attempt to resolve abandonment by reappearing does not remedy the conduct unless the attempt occurs within a reasonable amount of time. Although the statute does not define what is a "reasonable amount 'of time," the state argues that abandoning a child for one year before returning is obviously unreasonable. The state also points to legislative findings that indicate the importance of expediting the placement process for children under six years of age. Here, Mark failed to contact the agency from August 1998 through July 1999 and made no efforts to establish a relationship with Michelle for over a year after her birth. We find the state's argument persuasive and hold that the superior court did not err in finding that Mark failed to remedy the conduct or conditions within a reasonable time under AS 47.10.088(a)(1)(B)(M). 4. The superior court properly found that the department made "reasonable efforts" to provide family support services. Alaska Statute 47.10.086(a) requires the department to make timely, reasonable efforts to provide family support services to the child and to the parents or guardian of the child that are designed to prevent out-of-home placement of the child or to enable the safe return of the child to the family home, when appropriate, if the child is in an out-of-home placement. The department's duty to make reasonable efforts under this subsection includes the duty to (1) identify family support services that will assist the parent or guardian in remedying the conduct or conditions in the home that made the child a child in need of aid; (2) actively offer the parent or guardian, and refer the parent or guardian to, the services identified under (1) of this subsection; the department shall refer the parent or guardian to community-based family support services whenever community-based services are available and desired by the parent or guardian; and (3) document the department's actions that are taken under (1) and (2) of this subsection. The superior court found by a preponderance of the evidence that the department's efforts were reasonable. Mark challenges this finding. But Mark was present at the initial case conference, where he and Laura were advised of the need to "work out" a visitation schedule and complete parenting classes. Mark asked no questions then, and later testified that he understood the basic requirements of the plan and the importance of establishing a child-parent relationship. Mark nonetheless complains that he never received a written copy of the case plan. He speculates that if he had received a written copy, "it might have given [him] clearer notice of what DFYS expected him to accomplish prior to the return of his daughter." Yet at the same time, Mark recognizes that even if he had received a written copy, it might not have made any difference. Although Mark also argues that he received no mail or communications from the department after August 11, 1998, he admits that he moved around frequently and failed to provide the department with forwarding information; moreover, he failed to contact the department after August 1998. Furthermore, Driggins testified that her efforts were reasonable: "Reasonable efforts [under AS 47.10.086(a)] mean you identify what the client needs to do, and we very clearly did that, and make referrals for services." Driggins and the guardian ad litem called Mark's last known place of employment and discovered that he no longer worked there. The department had no contact information for Mark's family or friends, making it difficult for Driggins to locate him. Driggins completed an affidavit of diligent inquiry on April 18, 1999, noting that her efforts to locate Mark included checking phone books, utility applications, permanent fund dividend applications, and criminal ree-ords. And finally, the state reminds us that, in making its reasonable efforts finding, the superior court could consider Mark's unwillingness to engage in his case plan. Given these circumstances, we conclude that the record supports the superior court's finding that the department made reasonable efforts under AS 47.10.086(a). 5. The superior court did not err in determining that terminating Mark's parental rights was in Michelle's best interests. Mark's last point addresses the superior court's best interests finding. Mark argues that it is poor public policy to separate siblings. Because he has custody of John, Mark asserts, it is in Michelle's best interests to be in his home with her brother. In advancing this argument, Mark suggests that Michelle and John formed a four-month bond while they were living with Michelle's foster parents. But this unsupported contention directly conflicts with Dr. Lazur's testimony that very young children would not form a close bond within four months. Moreover, the state correctly points out evidence indicating that it is in Michelle's best interests to remain with her foster family because she had bonded to them. At trial Dr. Lazur testified that Michelle would view someone like Mark-whom she had seen three times in one year-as a stranger, even though he was her biological parent. Dr. Lazur further testified that to remove Michelle from a consistent environment where the child knows a caregiver, is able to rely upon a particular individual to take care of her needs or his needs, to then suddenly find him or herself removed from that situation would cause tremendous amount of anxiety, a sense of horror, a sense of terror and a sense of unsafety in the world. It would probably leave . irreparable psychological damage to the child. We conclude that the record supports the superior court's conclusion that it is in Michelle's best interests to terminate Mark's parental rights. ["IJn a termination trial, the best interests of the child, not those of the parents, are paramount." Michelle is thriving, happy, and well-adjusted at her foster parents' home; she has bonded with her family. The superior court could properly find that removing Michelle from the only family she has ever known would likely cause her irreparable harm. IV. CONCLUSION For these reasons, we AFFIRM the superior court's termination of Mark's parental rights. . To protect the anonymity of the parties, we use pseudonyms throughout this opinion. . Laura has not appealed. . See D.M. v. State, Div. of Family & Youth Servs., 995 P.2d 205, 207 (Alaska 2000). . See id. at 207-08. . See id. at 207. . See AS 47.10.088(a). . AS 47.10.088(c). . See AS 47.10.088(b). . AS 47.10.011 provides, in relevant part: Subject to AS 47.10.019, the court may find a child to be a child in need of aid if it finds by a preponderance of the evidence that the child has been subjected to any of the following: (1) a parent or guardian has abandoned the child as described in AS 47.10.013, and the other parent is absent or has committed conduct or created conditions that cause the child to be a child in need of aid under this chapter; (3) a custodian with whom the child has been left is unwilling or unable to provide care, supervision, or support for the child, and the whereabouts of the parent or guardian is unknown; (6) the child has suffered substantial physical harm, or there is a substantial risk that the child will suffer substantial physical harm, as a result of conduct by or conditions created by the child's parent, guardian, or custodian or by the failure of the parent, guardian, or custodian to supervise the child adequately[.] . See AS 47.10.011(1) and 47.10.013 (defining abandonment"). . See AS 47.10.011(3). . See AS 47.10.011(6). . AS 47.10.088(a)(1)(B). The state correctly points out that this provision did not require the superior court to find that Mark's conduct is likely to continue. Although the pre 1998 version of the statute required such a finding, the legislature omitted this requirement from the new statute. See former AS 47.10.080(c)(3). Therefore, Mark's first issue on appeal is moot. . 956 P.2d 477 (Alaska 1998). . 932 P.2d 1303 (Alaska 1997). . Although abandonment may result because of various conduct, the legislature has determined that a child is abandoned if the parent "failed for a period of at least six months to maintain regular visitation with the child." AS 47.10.013(a)(3). Mark did not maintain regular visitation for over one year. . See AS 47.05.065(5). . See AS 47.10.088(a)(2). This "reasonable efforts" standard should be distinguished from the higher "active efforts" requirement under the Indian Child Welfare Act (ICWA), 25 U.S.C. 1912(d) (1983). See infra note 19. . Cf. A.M. v. State, 945 P.2d 296, 305-06 (Alaska 1997) (dealing with the "active efforts" requirement of 25 U.S.C. § 1912(d)). . AS 47.10.088 provides, in relevant part: (b) In making a determination under (a)(1)(B) of this section, the court may consider any fact relating to the best interests of the child, including (1) the likelihood of returning the child to the parent within a reasonable time based on the child's age or needs; (2) the amount of effort by the parent to remedy the conduct or the conditions in the home; (3) the harm caused to the child; (4) the likelihood that the harmful conduct will continue; and (5) the history of conduct by or conditions created by the parent. (c) In a proceeding under this chapter involving termination of the parental right of a parent, the court shall consider the best interests of the child. . Although Mark claims that termination of his parental rights to Michelle will "forever separate[ ] siblings," this is unsupported and refuted by the foster mother's testimony. The foster mother testified that she and her husband have arranged visitation between Michelle and Mark and would encourage Michelle to have future contact with her biological family. In fact, the foster parents are godparents to one of Michelle's half-siblings. . A.B. v. State, Dep't of Health & Social Servs., 7 P.3d 946, 954 (Alaska 2000) (quoting A.A. v. State, Dep't of Family & Youth Servs., 982 P.2d 256, 260 (Alaska 1999)).

11513516

Conrad J. WORTHY, Petitioner, v. STATE of Alaska, Respondent

Worthy v. State

2000-04-14

No. S-8299

771

781

999 P.2d 771

999

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:43:19.422880+00:00

CAP

Before MATTHEWS, Chief Justice, EASTAUGH and FABE, Justices.

Conrad J. WORTHY, Petitioner, v. STATE of Alaska, Respondent.

Conrad J. WORTHY, Petitioner, v. STATE of Alaska, Respondent. No. S-8299. Supreme Court of Alaska. April 14, 2000. Christine S. Schleuss, Suddock & Schleuss, Anchorage, for Petitioner. John A. Scukanec, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Respondent. Before MATTHEWS, Chief Justice, EASTAUGH and FABE, Justices.

5731

33957

OPINION EASTAUGH, Justice. I. INTRODUCTION We reverse Conrad Worthy's conviction for second-degree sexual assault and remand for retrial. Worthy should have been permitted to introduce extrinsic evidence challenging the truth of the complaining witness's allegation that another man had raped her on a prior occasion, because her prior allegation was a crucial part of the state's case against Worthy. II. FACTS AND PROCEEDINGS In July 1994 T.J.S. broke off her two-year romantic relationship with Worthy. But they remained in contact, and several weeks later T.J.S. agreed to dine with Worthy and another couple. On their way home from dinner, Worthy told T.J.S. that he wanted to stop at his office because he had been having computer problems. Inside the office, Worthy and T.J.S. began to argue. The argument became violent. The details are contested, but Worthy admitted that he physically assaulted T.J.S. T.J.S. claimed that Worthy also sexually assaulted her by digitally penetrating her. Worthy eventually let T.J.S. go. She ran to a nearby store and called the police. The police took her to a hospital, where a medical examination revealed bruising and abrasion consistent with her allegations of physical assault and digital penetration. The state indicted Worthy for first-degree sexual assault, among other charges. At trial, the jury acquitted Worthy of first-degree sexual assault, but found him guilty of the lesser offense of second-degree sexual assault. Worthy challenges two evidentiary rulings made by the superior court. First, it excluded testimony tending to show that T.J.S. had previously falsely alleged that another man had sexually assaulted her on an earlier occasion. T.J.S. claimed that a co-worker named Chris had sexually assaulted her in Barrow in April 1994 following á work-reláted party. T.J.S. reported the alleged sexual assault to the Barrow police. The district attorney never filed charges against .Chris. At the time of the alleged Barrow sexual assault, T.J.S. and Worthy were dating and she discussed the incident with Worthy.' Then, during the encounter between Worthy and T.J.S., Worthy mentioned Chris. T.J.S. testified that Worthy punctuated his sexual assault on her by telling her to "think of [him] as Chris." Before trial Worthy sought permission to call Chris to testify that T.J.S. had falsely accused him of rape and that T.J.S. had consented to have sex with him. The superi- or court refused to permit the testimony. In its opening statement at trial, the state referred to the alleged Barrow rape and Worthy's comments regarding Chris during the assault. T.J.S. also testified on direct examination about the'alleged Barrow rape and the trauma she claimed to have suffered as a result. The superior court limited cross-examination; the defense could discuss whether the sex was, in fact, consensual, and could only point out that no criminal charge resulted from the investigation. Worthy argued before the court of appeals that the superior court's ruling improperly restricted his right to litigate the Barrow rape. Worthy maintained that once the prosecutor asserted that a prior rape had really occurred, Worthy was entitled to introduce evidence to prove that no rape had occurred. The court of appeals rejected Worthy's argument, determining'that it wás essentially irrelevant whether a rape had actually occurred in Barrow; It noted that the Barrow episode was only relevant to give context to what Worthy told T.J.S. during the Anchorage incident. Second, the superior court excluded expert testimony by Dr. Susan LaGrande, a psychologist, about the effects of childhood sexual assault upon an individual's response to and perception of violent or upsetting nonsexual incidents. Worthy offered this expert testimony on the eighth day of trial. The superior court refused to allow this testimony because Worthy had not given timely notice of his intention to call this expert, and because Worthy failed to offer any foundational evidence to suggest that the expert's theories applied to T.J.S. The court of appeals did not consider the timeliness of Worthy's notice because .it agreed that Worthy failed to establish the relevance of the expert's testimony. Worthy petitions for hearing from the decision of the court of appeals. III. DISCUSSION A. It Was Reversible Error to Reject Evidence that T.J.S. Had Previously Made a False Allegation of Sexual Assault Against Another Man. The admissibility of evidence is largely within the trial court's discretion and its rulings will not be overturned on appeal absent an abuse of its discretion. Worthy argues that the superior court erred in refusing to permit extrinsic evidence that T.J.S. had falsely accused Chris of sexual assault in Barrow. The state contends that the truth or falsity of the Barrow rape is irrelevant here; the only relevant evidence was that T.J.S. discussed the incident with Worthy and that Worthy told T.J.S. during the assault to "think of [him] as Chris." As a general rule, contradictory evidence may not be admitted if it relates to a collateral matter. If a matter is considered collateral, the testimony of the witness on direct or cross-examination stands — the examiner must take the witness's answer. If the matter is not collateral, extrinsic evidence may be introduced disputing the witness's testimony on direct or cross-examination. There is no clear, bright-line demarcation between collateral and non-collateral matters. In Davenport v. State, we adopted relevancy as the dividing line; we stated that "facts which are relevant to the issues of the case [are not collateral]." McCormick on Evidence elaborated on this distinction: "the matter is non-collateral and extrinsic evidence consequently admissible if the matter is itself relevant to a fact of consequence on the historical merits of the case." Is the truth or falsity of the Barrow rape relevant to this matter? As a general rule, the prior sexual conduct of an alleged sexual assault victim is not admissible. And the court of appeals has discussed an independent rule providing that an alleged victim's prior false allegations of sexual assault are not admissible to discredit the victim's current allegations unless the proponent of the evidence meets a threshold burden of establishing the falsity of the past reports. But we need not decide which of these two rules applies to Chris's testimony. Because the state interjected the alleged Barrow rape into the case and made its occurrence a central part of the case against Worthy, the issue became independently relevant. The state went much further than merely confining its evidence concerning the Barrow event to what T.J.S. had told Worthy about the incident and what Worthy had said to T.J.S. during the assault in his office. The state took it as a given that the Barrow incident Rad actually been a sexual assault. Worthy contends that the prosecutor relied on that assumption to generate sympathy for T.J.S. as a victim of two rapes, to establish her as a truthful reporter of rapes, to show her mental condition as a rape victim, and to portray Mr. Worthy as a man so bad that he raped someone he knew was particularly vulnerable because she had just been raped by someone else. We agree with Worthy's characterization of the prosecutor's approach. The state's trial references to the Barrow event had the effect of elevating that incident to a level of importance it would not normally have had. We are guided here by our opinion in Davenport. Davenport was prosecuted for receiving and concealing stolen property. We approved of the prosecution's request to introduce, for the purpose of impeaching Davenport's testimony that he had never seen a certain gold cuff link before it was pawned, testimony linking the cuff link with defendant's prior burglary conviction. We reached this conclusion because the proposed testimony "went to the essence of the critical transaction," not to a mere collateral matter. McCormick on Evidence recognizes this category of non-collateral matters: "[A] part of the witness's story may be attacked where as a matter of human experience, he could not be mistaken about that fact if- the thrust of his testimony on the historical merits was true." Chris's proposed testimony is similar to the testimony allowed in Davenport and fits within the exception recognized by McCormick on Evidence. The prosecution chose to use the Barrow event to bolster T.J.S.'s credibility, generate sympathy for her, and tarnish Worthy's image before the jury. . The prosecution made the truth of the Barrow rape a critical part of Worthy's assault on T.J.S. For this reason, Worthy was entitled to litigate the truth or falsity of T.J.S.'s Barrow rape report. It was an abuse of discretion to exclude Chris's testimony. We will not reverse a conviction based on an evidentiary ruling if the error is harmless. Because the state made T.J.S.'s testimony regarding the alleged Barrow event an integral part of its case against Worthy, Chris's testimony might have substantially affected the jury's verdict. Exclusion of this evidence therefore requires reversal of Worthy's conviction and remand for retrial. ' Correctly noting that Worthy failed at trial to renew his pretrial request to call Chris, the dissenting opinion reasons that Worthy waived this argument. We decline to hold that Worthy did not preserve the issue. Our reluctance is partly procedural. The state did not argue waiver in this court in its Brief of Respondent or at oral argument and instead argued the merits of the substantive issue. Had the state raised the waiver issue, Worthy might have persuasively explained in reply or in oral argument why we should not rely on waiver to avoid considering his ostensibly meritorious substantive argument. We could raise the waiver issue sua sponte at our discretion, but we are reluctant to do so where the state's failure to raise the waiver issue was-itself a waiver that potentially prejudiced the opponent. But our reluctance is mostly substantive. Under the circumstances of this case, we are not convinced that Worthy was required to do more than he did to preserve the issue. The defense .reasoned before trial that it was important to call Chris to show that the Barrow accusation was false. That reason never changed. Both before and after the state "opened the door" at trial, the truth of T.J.S.'s Barrow accusation was fundamental to the state's úse of the incident. But the trial court had already ruled that there would be no attack on the truth of the Barrow accusation through testimony from Chris. Even after the state "opened the door" at trial, the trial court maintained its unwillingness. to address the truth of the Barrow accusation. Given the breadth of the trial court's pretrial ruling, and its repeated assertions at trial that it was not going to allow the parties to try the Barrow incident, there is no reason to think the trial court would have reversed its pretrial ruling had Worthy-renewed his request. Our refusal to raise a waiver issue sua sponte in this case should not be taken to indicate that we are generally willing to consider, absent plain error, appellate arguments not preserved below. Rather, the specific facts of this case and the countervailing preservation problem created by the state's failure to raise the waiver issue lead us to conclude that we should not avoid the substantive issue on a theory that it was not preserved for appellate review. B. Reversal Moots Any Emr in Excluding Defendant's Expert Witness. Worthy argues that the superior court abused its discretion by prohibiting his expert, Dr. LaGrande, from testifying to rebut the prosecution's case-in-chief. The superior court based its exclusion decision in part on the untimeliness of Worthy's expert witness disclosure. Because the exclusion of Chris's testimony requires reversal and remand for retrial, it is not necessary to decide whether the court abused its discretion in excluding Dr. LaGrande's testimony. Assuming Worthy is retried, the superior court can revisit the foundation issue in context of the evidence before it at retrial. Worthy will also have an adequate opportunity to make a timely expert witness disclosure before retrial. Because Dr. LaGrande's testimony will necessarily require reference to T.J.S.'s previous sexual conduct, AS 12.45.045(a) and Alaska Evidence Rule 404(a)(2) may affect the admissibility of Dr. LaGrande's testimony. Alaska Evidence Rule 703 also potentially applies. And, as expert testimony, it must meet the requirements of Alaska Evidence Rule 702 discussed in State v. Coon. IV. CONCLUSION We REVERSE Worthy's conviction for second-degree sexual assault and REMAND for retrial. BRYNER and CARPENETI, Justices, not participating. . On appeal, Worthy does not dispute T.J.S.'s testimony or characterization of his statements regarding Chris. . See Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980). . See Shane v. Rhines, 672 P.2d 895, 898 n. 2 (Alaska 1983) ("[E]vidence which is offered to contradict a collateral matter is inadmissible, whether or not the matter was brought out on direct."). . 519 P.2d 452 (Alaska 1974). . Id. at 455. . 1 John W. Strong, ed., McCormick on Evidence (5th ed.1999) [hereinafter McCormick on Evidence ]. . Id. § 49, at 203 (footnote omitted). . See AS 12.45.045(a). . See Covington v. State, 703 P.2d 436, 442 (Alaska App.1985), modified on other grounds on reh'g, 711 P.2d 1183 (Alaska App.1985). These threshold requirements have not been clearly expressed. See id.; Johnson v. State, 889 P.2d 1076, 1078-79 (Alaska App.1995). . See Appendix. . See Davenport, 519 P.2d at 453. . See id. at 455. . Id. . McCormick on Evidence at 203. . See Alaska R. Civ. P. 61 ("No error in the admission or the exclusion of evidence . is ground for granting a new trial or setting aside a verdict . unless refusal to take ' such action appears to the court inconsistent with substantial justice."). . Dissent at 777. . Nor did the state argue waiver in its appellee brief before the court of appeals or in its response to Worthy's petition for hearing. . See Shepard v. State, 847 P.2d 75, 79 (Alaska App.1993) (vesting trial court with broad discretion to regulate admission of expert testimony and reviewing decision to exclude expert testimony for abuse of discretion). . Because Alaska Rule of Criminal Procedure 16(c)(4), which requires the defense to provide notice of experts no later than thirty days prior to trial, did not become effective until after Worthy's trial, the question of what constituted timely notice was committed to the trial court's discretion. See Supreme Court Order No. 1191. Here, the superior court's pretrial order required the defense to disclose its expert witnesses two weeks before trial. Compliance with a pretrial order is required unless justice demands otherwise. See Alaska R.Crim. P. 22(b) ("[W]hen entered [the pretrial order] shall control the subsequent course of the proceedings, unless modified at the trial to prevent manifest injustice."). Worthy did not comply with the pretrial order as entered. .974 P.2d 386 (Alaska 1999).

11513439

DOYON UNIVERSAL SERVICES and Alaska National Insurance Company, Appellants, v. Lawrence ALLEN and the Alaska Workers' Compensation Board, Appellees

Doyon Universal Services v. Allen

2000-04-14

No. S-8956

764

771

999 P.2d 764

999

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:43:19.422880+00:00

CAP

Before MATTHEWS, Chief Justice, EASTAUGH, PABE, BRYNER, and-CARPENETI, Justices.

DOYON UNIVERSAL SERVICES and Alaska National Insurance Company, Appellants, v. Lawrence ALLEN and the Alaska Workers’ Compensation Board, Appellees.

DOYON UNIVERSAL SERVICES and Alaska National Insurance Company, Appellants, v. Lawrence ALLEN and the Alaska Workers’ Compensation Board, Appellees. No. S-8956. Supreme Court of Alaska. April 14, 2000. Richard L. Wagg, Russell, Tesche, Wagg, Cooper & Gabbert, Anchorage, for Appellant. Joseph A. Kalamarides, Kalamarides & Associates, Anchorage, for Appellee. Before MATTHEWS, Chief Justice, EASTAUGH, PABE, BRYNER, and-CARPENETI, Justices.

3596

23043

OPINION CARPENETI, Justice. I. INTRODUCTION Doyon Universal Services and Alaska National Insurance Company (collectively, "Doyon") appeal the determination of the Alaska Workers' Compensation Board that Lawrence Allen's small bowel obstruction was work-connected and that the Brussels sprouts he ingested at Doyon's facility were a "substantial factor" in causing his disability. Because substantial evidence supports the Board's determination, we affirm. II. FACTS AND PROCEEDINGS A. Facts Lawrence Allen was employed as a cook by Doyon at a remote site on the Trans-Alaska Pipeline. While he was on duty, Allen lived in an on-site dormitory and took his meals at the employee cafeteria. These employer-provided facilities are the only available room and board for the employees who work at the site. On August 21, 1997, Allen traveled from his home in Anchorage to the pump station to begin a two-week rotation. He moved his belongings into his assigned room and went to the company cafeteria for dinner. At approximately 6:00 p.m., Allen ate a meal of pork chops, mashed potatoes, gravy, and "three or four" Brussels sprouts. At 8:00 p.m. that night, Allen began his shift in the kitchen. Two hours later, he began to feel pain in his stomach. As the night progressed, his pains worsened and he began to feel nauseous. When his shift ended at 8:00 a.m. the next morning, Allen called the camp medic. When he saw the medic, Allen had a terrible stomachache, was vomiting, and had blood in his stool. From that time until the following day, Allen vomited frequently and had a form of diarrhea that was infused with blood. On August 23, 1997, Allen was taken via medivae flight to Anchorage, where he was admitted to the Alaska Native Medical Center. There, it was determined that Allen had a complete obstruction of the small bowel caused by two bezoars in his small intestine. Surgeon Frank Sacco surgically removed the obstruction in Allen's intestine. Dr. Sacco's post-operative report revealed that the bez-oars contained dense necrotic vegetable matter, including traces of undigested Brussels sprouts. Allen was released to work in November 1997. He has not experienced continuing problems associated with the incident. B. Proceedings Allen filed a report of injury with Doyon on September 5, 1997. Doyon responded by filing a Controversion Notice with the Alaska Department of Labor in which it refused to pay Allen benefits on the grounds that his condition did not arise in the course and scope of his employment. On October 8, 1997, Allen filed an Application for Adjustment of Claim with the Department of Labor, seeking temporary total disability benefits, permanent partial impairment benefits, medical benefits, transportation costs, reemployment benefits, interest, attorneys' fees, and legal costs. This claim was heard by the Alaska Workers' Compensation Board in Anchorage on May 12, 1998. Allen testified. The depositions of Allen's then-treating physician, Stephen Livingston, M.D., and Doyon's medical expert, Steven Kilkenny, M.D., were also submitted as evidence. Pursuant to a stipulation made by the parties at a March 1998 prehearing conference, the Board limited its inquiry to whether Allen's intestinal obstruction constituted a compensable injury occurring within the course and scope of his employment. In a split decision filed on June 5,1998, the Board found Allen's claim compensable, which entitled him to workers' compensation benefits under AS 23.30. Doyon appealed the Board's decision to the superior court, which affirmed the Board's decision. This appeal followed. III. DISCUSSION A. Standard of Review This court independently reviews the merits of an agency determination and does not defer to the decision of a superior court acting as an intermediate court of appeal. We review the Board's factual determinations under the "substantial evidence" test, which requires us to determine "whether there is substantial evidence, in light of the whole record, such that a reasonable mind might accept the board's decision." When applying this test, we independently review the evidence to determine whether the Board's conclusion was based on substantial evidence. However, our determination is limited only to whether such evidence exists; we neither reweigh the evidence nor choose between competing factual inferences. We have held that "if the Board is faced with two or more conflicting medical opinions — each of which constitutes substantial evidence — and elects to rely upon one opinion rather than the other, we will affirm the Board's decision." B. Substantial Evidence Supports the Board's Finding that Allen Proved, by a Preponderance of the Evidence, that His Injury Is Compensable. Employees are entitled to receive workers' compensation whenever they suffer injury arising out of and in the course of their employment. Injuries that have both work-related and non-work-related causes are deemed compensable if the employer's actions were a "substantial factor" in causing the injury. 1. Substantial evidence supports the Board's finding that Allen was injured within the course and scope of his employment. Under the Alaska Workers' Compensation Act, an employer is required to pay compensation to an employee who suffers an injury "arising out of and in the course of employment," regardless of fault. An injury has arisen "out of and in the course of employment" if it occurred during (1) "employer-required or supplied travel to and from a remote job site"; (2) "activities performed at the direction or under the control of the employer"; or (3) "employer-sanctioned activities at employer-provided facilities." In the instant case, the Board found that Allen's injury occurred in an "employer sanctioned activity" in an "employer provided facility," and therefore concluded that his injury was within the course and scope of his employment. While it is undisputed that Allen ate the Brussels sprouts in an employer-provided facility, Doyon contests the Board's conclusion that Allen's act of eating was an "employer-sanctioned activity." Because of the unique situation that remote worksites present, we have adopted a particularly expansive view of "work-connectedness," which we have articulated in the now-familiar "remote site" doctrine. The crux of this doctrine is that everyday aetivi-' ties that are normally considered non-work-related are deemed a part of a remote site employee's job for workers' compensation purposes because the requirement of living at the remote site limits the employee's activity choices. As we have stated: because a worker at a remote site is required, as a condition of employment, to eat, sleep and socialize on the work premises, activities normally divorced from his work become part of the working conditions to which the worker is subjected. We have used this doctrine to extend workers' compensation coverage to injuries sustained by remote site employees while engaged in recreational pursuits, and while running personal errands that were "reasonably contemplated and foreseeable by the employment situation." Here, Allen's act of eating the Brussels sprouts was a direct consequence of the limitations of working at a remote site. It is undisputed that the only food available on the premises was at the employer-provided cafeteria. Allen therefore had no personal choices as to where he should eat; he also had no access to a restaurant, grocery store, or kitchen facilities for his personal use. Unlike eating at home, Allen had little or no choice as to what he could eat, how it would be prepared, who would prepare it, or the quality of the ingredients. The limits placed on Allen's choices are further evident in the fact that he does not cook or eat Brussels sprouts at home; rather, the only vegetable dish he prepares is Costco's "California Blend," which contains corn, string beans, lima beans, broccoli and cauliflower. Because Allen's act of eating the Brussels sprouts was "an activity choice made as a result of limited activities offered at a remote site," it is precisely the type of activity the "remote site" doctrine was meant to cover. For these reasons, Allen's act of eating in the cafeteria was incident to his employment under the "remote site" doctrine. Because the facts surrounding Allen's eating options are undisputed, substantial evidence supports the Board's finding that Allen has proven this aspect of his case by a preponderance of the evidence. 2. Substantial evidence supports the Board's finding that the Brussels sprouts were a substantial factor in causing Allen's injury. Doyon also argues that it should not be held liable for Allen's disability because Allen presented no evidence that the Brussels sprouts that he ingested in Doyon's cafeteria caused the injury that led to his disability. Under our workers' compensation system, however, the fact that the Brussels sprouts were not the initial cause of Allen's blockage is immaterial. Doyon's argument that Allen should not receive compensation because the obstruction was the result of a pre-existing condition is invalid as well. We have upheld workers' compensation awards in numerous cases in which a pre-existing problem was aggravated or accelerated by work-related activity. We have stated that workers' compensation liability is to be imposed "whenever employment is established as a causal factor in the disability." A "causal factor" is a legal cause if "it is a substantial factor in bringing about the harm" at issue. The substantial factor test requires the party with the burden of proof to demonstrate that: (1) the disability would not have happened "but for" an injury sustained in the course and scope of employment; and (2) reasonable persons would regard the injury •as a cause of the disability and attach responsibility to it. Here, the Board based its conclusion that the Brussels sprouts were a substantial factor in aggravating Allen's pre-existing condition on two main considerations: (1) Dr. Sacco's post-operative report, which states that undigested Brussels sprouts were found in the bezoars; and (2) the testimony of each party's medical expert, both of whom the Board felt expressed a belief that the Brussels sprouts were a precipitating factor in Allen's need for surgery. The Board's finding that the Brussels sprouts were a substantial factor in aggravating Allen's pre-existing condition is consistent with the deposition testimony of both medical experts. Allen's expert, Dr. Livingston, stated that the Brussels sprouts "may well have precipitated the small bowel obstruction" and that it is "quite likely" that the Brussels sprouts were a precipitating factor. Doyon's expert, Dr. Kilkenny, echoed a similar opinion by stating that the Brussels sprouts "may have been a contributing factor" to Allen's disability and suggesting that eating the Brussels sprouts caused Allen to have the surgery earlier than he would have if he had not eaten them. Other evidence indicating that the Brussels sprouts played a critical role in Allen's disability is that Allen had no indication that he suffered from slow digestion or digestion problems prior to the event and that Allen had no more bezoars or digestion problems after his surgery. Although there is evidence that casts doubt on the Board's finding, our role in reviewing the Board's decision is simply to determine whether it is supported by substantial evidence in light of the whole record. We do not reweigh the evidence or choose between competing inferences; rather, we merely determine whether a reasonable mind could accept a decision of com-pensability in light of the record as a whole. Evidence that casts doubt on the Board's finding includes both experts' suspicions that "the bezoars developed over time" and that "the employee may have suffered some intestinal malfunction which slowed or impeded digestion." However, the Board accorded greater weight to the fact that both Allen's and Doyon's experts regarded the Brussels sprouts as a factor in the blockage of Allen's intestine. Because the record indicates that Doyon's and Allen's experts agree that the Brussels sprouts probably precipitated and hastened Allen's need for surgery, the Board was not unreasonable in concluding that Allen's obstruction would not have occurred "but for" the Brussels sprouts. Similarly, while the Board did consider Dr. Sacco's statement that Allen's obstruction was caused from food material unrelated to his employment, it gave greater weight to Dr. Sacco's post-operative report, which was written immediately after the surgery and stated that Brussels sprouts were found in the bezoars. The Board's decision to accord greater weight to the post-operative report does not appear unreasonable because the other statement was signed in anticipation of litigation, at Doyon's request. In addition, given Dr. Sacco's likely unfamiliarity with the definition of work-connectedness in workers' compensation law, it was not unreasonable for the Board to consider Dr. Sacco's postoperative report as having "greater probative value." The second prong of the substantial factor inquiry is whether reasonable persons would regard the injury as a cause and attach responsibility to it. As we have noted above, the experts' opinions that the Brussels sprouts played a role in Allen's injury, as well as the fact that Brussels sprouts were found in Allen's bezoar, provide ample evidence for reasonable minds to conclude that the Brussels sprouts ingested at Doyon's facility were responsible for Allen's blockage and need for surgery. We therefore find that the second prong of the substantial factor inquiry is satisfied. IV. CONCLUSION Because substantial evidence supports the Board's findings that Allen's injury arose in the course and scope of his employment and that his work-related injury was a substantial factor in causing his disability, we AFFIRM the decision of the Board. . Stedman's Medical Dictionary defines "bezoar" as "[a] concretion formed in the alimentary canal of animals, and occasionally man; formerly considered to be a useful medicine with magical properties and apparently still used for this purpose in some places; according to the substance forming the ball, may be termed trichobezoar (hairball), trichophytobezoar (hair and vegetable fiber mixed), or phytobezoar (foodball)." Sted-man's Medical Dictionary 183 (25th ed.1990); see also Webster's II New College Dictionary 106 (1995) (defining "bezoar" as "[a] hard gastric or intestinal mass found chiefly in ruminants and once regarded as a magical antidote to poison"). . See Thompson v. United Parcel Serv., 975 P.2d 684, 687 (Alaska 1999) (citation omitted). . See id. (citation omitted). . State, Pub. Employees Retirement Bd. v. Cacioppo, 813 P.2d 679, 683 n. 6 (Alaska 1991) (citing Delaney v. Alaska Airlines, 693 P.2d 859, 863 (Alaska 1985), overruled on other grounds by Wade v. Anchorage Sch. Dist., 741 P.2d 634, 638-39 (Alaska 1987)). . See Dwight v. Humana Hosp. Alaska, 876 P.2d 1114, 1118 n. 6 (Alaska 1994) (citation omitted). . See Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992) (citing Interior Paint Co. v. Rodgers, 522 P.2d 164, 170 (Alaska 1974)). . See Burgess Constr. Co. v. Smallwood, 623 P.2d 312, 317 (Alaska 1981) (citations omitted). . Yahara v. Construction & Rigging, Inc., 851 P.2d 69, 72 (Alaska 1993) (citations omitted). . Alaska Statute 23.30.120(a)(1) creates a presumption that a claim for workers' compensation is compensable. This presumption extends to the question of whether a disability is work-related. See Gillispie v. B & B Foodland, 881 P.2d 1106, 1109 (Alaska 1994). Application of this presumption includes a three-step process. See id. at 1109-11. First, to raise the presumption of compensability, the employee must establish a "preliminary link" between his or her disability and the employment. Id. at 1109. Second, the employer has the burden of overcoming the presumption by presenting substantial evidence that the injury was not work-related. See id. An employer can satisfy this burden by providing substantial evidence that either: "(1) provides an alternative explanation which, if accepted, would exclude work related factors as a substantial cause of the disability; or (2) directly eliminates any reasonable possibility that employment was a factor in causing the disability." Grainger v. Alaska Workers' Compensation Bd., 805 P.2d 976, 977 (Alaska 1991). We have held that "it has always been possible to rebut the presumption of compensability by presenting a qualified expert who testifies that, in his or her opinion, the claimant's work was probably not a substantial cause of the disability." Big K Grocery v. Gibson, 836 P.2d 941, 942 (Alaska 1992). Third, once the employer produces substantial evidence to rebut the presumption of compensa-bility, the presumption drops out and the employee must prove the elements of his or her claim by a preponderance of the evidence. See Gillispie, 881 P.2d at 1111. In the instant case, the Board held Dr. Livingston's testimony that Allen's consumption of Brussels sprouts at the employer's cafeteria was a "precipitating factor" in Allen's "need for surgery" was sufficient medical evidence to raise the presumption of compensability. The Board next found that Doyon had successfully rebutted this presumption by presenting the statement of Dr. Sacco, the surgeon who had operated on Allen, that Allen's bowel obstruction "was not related to his employment or his job." Neither Doyon nor Allen has challenged these rulings in this appeal; therefore, these issues are considered abandoned. See State v. O'Neill, 609 P.2d 520, 528 (Alaska 1980). We therefore begin our analysis in the instant case with the third step. . See AS 23.30.395(17); Fruit v. Schreiner, 502 P.2d 133, 141 (Alaska 1972). . See Tolbert v. Alascom, 973 P.2d 603, 611-12 (Alaska 1999) (citations omitted). . AS 23.30.005-.400. . See AS 23.30.045(a), (b), .395(2). . AS 23.30.395(2). . The parties do not dispute that the injury occurred at a remote worksite. . See Anderson v. Employers Liab. Assurance Corp., 498 P.2d 288, 290 (Alaska 1972) (footnotes omitted). . See Norcon v. Alaska Workers' Compensation Bd., 880 P.2d 1051, 1053 n. 1 (Alaska 1994) (citation omitted). In M-K Rivers v. Schleifman, we stated that because the "all-encompassing" nature of the remote sites makes it impossible for a "worker at a remote area" to "leave his work and residential premises to pursue an entirely personal whim and thereby remove himself from work connected coverage," remote worksites present a special situation in which many commonplace activities must be deemed incidents of employment, even though those same activities might not be considered work-related if conducted at a non-remote site. 599 P.2d 132, 134 (Alaska 1979). . Norcon, 880 P.2d at 1053 n. 1 (citation omitted). . See Anderson, 498 P.2d at 292-93 (holding that an injury sustained by an electrician employed at a remote site during a recreational pole-climbing contest was incident to employment and therefore covered by workers' compensation); see also Northern Corp. v. Saari, 409 P.2d 845, 846-47 (Alaska 1966) (holding that a remote camp employee's accidental death was incident to his employment in a case in which the death occurred while the employee was returning to the camp after using employer-arranged recreational facilities at a nearby military base). . M-K Rivers, 599 P.2d at 136 (holding that an employee's injuries that were sustained in a motorcycle accident while he was driving from his remote employment site to Glennallen to cash his paycheck were compensable because it was foreseeable he might travel to Glennallen for the purpose of cashing the check, and because such an errand can be viewed as serving the mutual benefit of both the employer and the employee). . Norcon, 880 P.2d at 1053 n. 1. . Doyon contends that the "remote site" doctrine is inapplicable here in light of the first footnote in Norcon, in which we held that a fatal cardiac arrest suffered by a worker while showering at a remote site "does not fall within the parameters of the 'remote site' theory" because "[gjetting ready for work is not an activity choice made as a result of limited activities offered at a remote site. It is an activity that most employees engage in before they go to work, regardless of their location." Id. The principle implicit in the result described in this footnote is reflected in our analysis in the instant case: For the "remote site" doctrine to attach, the employee's activity choices must be limited by the remote site and that limitation must play a causal role in the employee's inj ury. For example, if we were confronted with a case similar to Norcon in which an employee's heart attack was caused by him or her being hit with a sudden burst of cold water while in the shower, we would conclude that the employee's limited choice of showers at the remote site contributed to his or her injury, and that the remote-site doctrine therefore applies. . See e.g., Tolbert v. Alascom, 973 P.2d 603, 608 n. 15 (Alaska 1999); Williams v. State, Dep't of Revenue, 938 P.2d 1065, 1072-73 (Alaska 1997); Tinker v. Veco, Inc., 913 P.2d 488, 493 (Alaska 1996); Thornton v. Alaska Workmen's Compensation Bd., 411 P.2d 209, 210 (Alaska 1966); see also Burgess Constr. Co. v. Smallwood, 623 P.2d 312, 315 (Alaska 1981)("Such aggravation or acceleration must be presumed in the absence of substantial evidence to the contrary.") (footnote and citations omitted in original). . Ketchikan Gateway Borough v. Saling, 604 P.2d 590, 597-98 (Alaska 1979) (emphasis in original). . Id. at 598 (emphasis in original) (citations omitted). . See Fairbanks N. Star Borough v. Rogers & Babler, 747 P.2d 528, 532 (Alaska 1987) (extending the substantial factor test previously articulated in tort to a workers' compensation context); see also State v. Abbott, 498 P.2d 712, 726-27 (Alaska 1972) (discussing the substantial factor test). . A later procedure to check for other bezoars came back negative and a CAT scan of the small bowel determined that Allen's small bowel was in normal condition. . See Gillispie v. B & B Foodland, 881 P.2d 1106, 1111 (Alaska 1994) (citations omitted). .See Black v. Universal Servs. Inc., 627 P.2d 1073, 1075 (Alaska 1981) (citation omitted). . The statement is written on Alaska National Insurance Company letterhead and was drafted by an Alaska National Insurance Company employee. . Rogers & Babler, 747 P.2d at 532.

10403139

Oliver FELLOWS and Georgiann Fellows, Petitioners, v. TLINGIT-HAIDA REGIONAL ELECTRICAL AUTHORITY, Defendant, v. SITKA TELEPHONE COMPANY, Respondent

Fellows v. Tlingit-Haida Regional Electrical Authority

1987-07-17

No. S-1113

428

432

740 P.2d 428

740

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:43:14.099706+00:00

CAP

Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON, and MOORE, JJ.

Oliver FELLOWS and Georgiann Fellows, Petitioners, v. TLINGIT-HAIDA REGIONAL ELECTRICAL AUTHORITY, Defendant, v. SITKA TELEPHONE COMPANY, Respondent.

Oliver FELLOWS and Georgiann Fellows, Petitioners, v. TLINGIT-HAIDA REGIONAL ELECTRICAL AUTHORITY, Defendant, v. SITKA TELEPHONE COMPANY, Respondent. No. S-1113. Supreme Court of Alaska. July 17, 1987. Mary E. Guss, Clifford H. Smith, A.P.C., Ketchikan, for petitioners. Peter R. Ellis, Ellis Law Offices, Inc., Ketchikan, for respondent Sitka Telephone Co. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON, and MOORE, JJ.

2554

16297

OPINION RABINOWITZ, Chief Justice. Plaintiffs Oliver and Georgiann Fellows petitioned for review of an order of Judge Henry C. Keene, limiting their potential recovery in this action from third-party defendant Sitka Telephone Company (Sitka) to $71,618.50. This figure represents one-half of the amount paid directly to the Fellows by the Tlingit-Haida Regional Electrical Authority (THREA) pursuant to their settlement agreement. Primarily at issue here is the effect of that agreement, in which THREA assigned to the Fellows all rights that THREA might have against Sit-ka, including any right to contribution. Upon granting the petition for review, the parties were requested specifically to brief two issues: (a) Should the petitioners recover the difference between the total sum that they have already recovered ($343,237) and the $1.1 million figure in THREA's confession of judgment; and (b) Should the petitioners recover the difference between the amount they recovered and one-half the sum of $343,237? We now reverse the order of the superior court, based on our view that $343,237 represents the common liability of THREA and Sitka and that Sitka may be liable for half of this sum. I. BACKGROUND. In August 1981, Oliver Fellows was injured when he fell from an overheight load of lumber being moved by his employer, Island Logging, Inc. (Island). Fellows, Island owner Roger Gildersleeve, and another worker, Marvin Jordan, were lifting overhead power lines to permit the truck to pass. The accident occurred when Jordan contacted a "hot" wire. The electrical jolt propelled Jordan into Fellows, who fell from the truck onto the ground and consequently sustained serious injuries. Five power lines stretched across the road. The "hot" wire and the one immediately below it belonged to THREA. The remaining three wires belonged to Sitka and the Klawock Tlingit-Haida Community Counsel TV System. A joint use agreement with THREA permitted Sitka to hang its wires on poles owned by THREA. In August 1983, the Fellows sued THREA for negligence, seeking damages for Oliver's injuries and Georgiann's loss of consortium. THREA subsequently filed an amended answer and a third-party complaint against Sitka, alleging that Sitka had violated their joint use agreement. THREA filed a second third-party complaint against Island and owner Gilder-sleeve (Island/Gildersleeve), alleging violations of certain statutory safety standards, and seeking indemnity for Island/Gildersleeve's statutory violations pursuant to AS 18.60.685(b). The Fellows later attempted to amend their complaint to sue Sitka directly, but the applicable statute of limitations had run and barred that claim. In June 1985, the Fellows and THREA executed a settlement agreement in which THREA agreed to pay the Fellows $343,-237 — $180,000 in cash and the remaining $163,237 for purchase of an annuity for the Fellows' benefit. Of the $343,237 total settlement, THREA directly paid only $143,-237; Island/Gildersleeve paid the remaining $200,000, apparently in settlement of its liability under AS 18.60.685(b). THREA assigned "its third-party rights, claims and obligations attendant thereto versus Sitka Telephone to [the] Fellows to pursue on its behalf under Alaska Statute [sic], including but not limited to, its right of contribution from a joint tort feasor, [and] the unpaid balance of monies due from the confession of judgment." THREA then executed a confession of judgment in favor of the Fellows for $1.1 million plus interest, costs and attorney's fees. In exchange, the Fellows promised not to execute against THREA on the confession of judgment but only to seek the balance due from Sitka. Sitka filed a motion in the superior court seeking to limit its potential liability to one-half of the $143,237 "actually paid" by THREA, or $71,618.50. The court granted Sitka's motion, limiting the Fellows' potential recovery as assignees of THREA's contribution action to $71,618.50. It expressly ordered "that Plaintiffs can be assigned no cause of action for a breach of contract and no cause of action for indemnity by virtue of the Settlement Agreement or any assignment of rights thereunder to Plaintiffs by either [THREA] or [Island/Gilder-sleeve]." The Fellows then petitioned this court for review of the superior court's order. II. DISCUSSION. A. The Fellows Cannot Recover the Full Amount of the Difference Between the $3^3,237 Already Recovered and the $1.1 Million Confession of Judgment. The Fellows contend that they should be able to recover from Sitka the $1.1 million confession of judgment less the $343,237 already received once they establish that Sitka was a negligent tortfeasor and that the judgment reasonably represents the losses they incurred as a result of the underlying tortious conduct. The heart of the Fellows' argument is based on AS 09.16.040, which provides: When a release or covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death (1) it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide; but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater; and (2) it discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor. This section abrogates the common law rule that the release of one joint tortfeasor releases all joint tortfeasors. It allows an injured plaintiff to settle with one potential tortfeasor without releasing the remaining potential joint tortfeasors from liability. The amount of any settlement, however, must be subtracted from any judgment ultimately obtained against the non-settling tortfeasors. The settlement discharges the settling tortfeasor's potential liability for contribution. The Fellows maintain that they can recover on their tort claims from Sitka pursuant to subsection .040(1) because their settlement agreement with THREA did not release Sitka from liability. This would be true if they had a presently existing negligence claim against Sitka. However, because the limitation's period for bringing a direct claim against Sitka has expired, the Fellows cannot now institute such a claim; they cannot revive their lost negligence cause of action through their assertion of the assigned right of contribution. As assignees of THREA, they are entitled to no greater right against Sitka than THREA would have absent the assignment. The $1.1 million confession of judgment in the underlying negligence action is irrelevant to the action based upon the contribution assignment. B. The Fellows Can Recover One-Half of $3⅛3,237 Under Their Contribution Assignment if Sitka is Found • Liable. AS 09.16.010 establishes THREA's right of recovery against Sitka and thus determines the parameters of the Fellows' assignment. This section provides in pertinent part: (a) Except as otherwise provided in this chapter, where two or more persons become jointly or severally liable in tort for the same injury to person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them. (b) The right of contribution exists only in favor of a tortfeasor who has paid more than that tortfeasor's pro rata share of the common liability, and the total recovery of that tortfeasor is limited to the amount paid in excess of the pro rata share. No tortfeasor is compelled to make contribution beyond the tortfeasor's pro rata share of the entire liability. [Emphasis added.] THREA agreed to pay the Fellows $343,-237 in their settlement agreement. As mentioned previously, of this total, THREA paid $143,237, and Island/Gildersleeve paid the balance of $200,000, apparently to satisfy its obligation to indemnify THREA under AS 18.60.685(b). Sitka accordingly takes the position that its potential liability for contribution as a joint tortfeasor equals a pro rata share (one-half) of the $143,237 "common liability" paid to the Fellows by THREA, or $71,618.50. In our view, the common liability for the underlying tort here is the full $343,237 settlement amount. Based on the settlement agreement, THREA owed the Fellows this sum; any right to indemnity from Island/Gildersleeve that THREA may have had existed independently of THREA's negligence liability. There is no reason that Sitka should benefit from the happenstance that its co-tortfeasor may be entitled to indemnification from a third party. AS 09.16.010(b) dictates that a settling tortfeasor can recover contribution in the amount it has paid in excess of its pro rata share of the common liability. The purpose of the Uniform Contribution Act is "to ensure that all joint tortfeasors pay their fair share of the damages." Criterion Ins. Co. v. Laitala, 658 P.2d 112, 115 (Alaska 1983). Contribution is an equitable doctrine adopted to remedy the unfairness of the common law rule allowing one of several tortfeasors to bear responsibility for the entire loss. By virtue of its settlement agreement, THREA has borne the full amount of the tort liability here; Sitka must shoulder its share if it is ultimately found to be a tortfeasor. Since the Fellows as assignees stand in THREA's shoes, they can recover one-half of $343,-237, or $171,618.50, if they establish Sitka's liability. The decision of the superior court is therefore REVERSED. . Klawock TV was dismissed from this action due to its lack of funds. . See AS 18.60.670-.695. . AS 18.60.685(b) provides: If a violation of AS 18.60.670 — 18.60.695 results in physical or electrical contact with an overhead high voltage line or conductor, the violator is liable to the owner or operator of the high voltage line or conductor for all damage to the facilities and for all liability incurred by the owner or operator as a result of the unlawful activities. .Island was a named party to the Fellows-THREA settlement agreement but Island/Gil-dersleeve apparently paid the $200,000 pursuant to a separate agreement with THREA. The Alaska Workers' Compensation Act prevented the Fellows from suing Island/Gildersleeve directly because it provides an exclusive remedy for work-related injuries. See AS 23.30.055. . See generally W. Keeton, D. Dobbs, R. Keeton, and D. Owen, Prosser and Keeton on the Law of Torts § 49, at 332 (5th ed. 1984). . AS 09.16.040(1); Unif. Contribution Among Tortfeasors Act § 4, 12 U.L.A. 98 (1975). . AS 09.16.040(1). . AS 09.16.040(2). . Under AS 09.16.010, THREA's right of contribution against Sitka is for amounts paid in excess of its pro rata share of their common liability. The Fellows contend that AS 09.16.010 and .040 are inconsistent, that section .010 should apply only to those cases which have gone through trial with all defendants and section .040 to those in which a settlement with one defendant is reached before trial. We do not find the statutes inconsistent. Section .010 establishes the right of one joint tortfeasor against another for contribution; section .040 enables a plaintiff to pursue its causes of action against different joint tortfeasors separately. . See supra note 3. . Sitka's pro rata share is one-half of the common liability because only THREA and Sitka are potential joint tortfeasors. We reject Sitka's contention that Island/Gildersleeve exposed itself to liability as a joint tortfeasor by violating the statutory requirements of AS 18.60.680. An employer is immune from a direct action by its employees based on the exclusivity provision of the Alaska Workers' Compensation Act, AS 23.-30.055. To expose an employer to an action for contribution would subvert the policy behind this provision. We have previously held that a third-party's cross-claim for indemnity and contribution against an employer is barred. E.g., State v. Wien Air Alaska, 619 P.2d 719 (Alaska 1980); see also W. Keeton, D. Dobbs, R. Keeton, and D. Owen, supra note 5, § 50, at 339-40. We note that Island/Gildersleeve's liability to THREA was determined by agreement of the parties. We express no opinion as to whether a statutory indemnity clause, as opposed to a contractual indemnity clause, is enforceable against an employer and thus overrides the exclusive remedy provision of the worker's compensation act. Cf. Golden Valley Elec. Ass'n v. City Elec. Serv., 518 P.2d 65, 66-67 (Alaska 1974) (action for implied contractual indemnity against employer may not be maintained by third party held liable in tort to injured employee); Manson-Osberg Co. v. State, 552 P.2d 654, 659 (Alaska 1976) (express indemnity clause enforceable, despite exclusive liability provision). . In this regard we observe that the settlement agreement specifically stated; "The parties agree that Third Party Defendant Island Log is a party to this agreement but that all obligations created hereunder to plaintiffs are the responsibility of THREA." . Indemnity is best viewed as a private matter between indemnitor and indemnitee. Liability insurance, for example, establishes by contract the insured's right to indemnity from the insurer. If THREA had obtained insurance coverage for this accident and received $200,000 from its insurer, the common liability of THREA and Sitka would not be affected by the existence of the insurance policy; their common liability for the accident would remain $343,237. If thereafter THREA recovered one-half of the $343,237 in contribution from a joint tortfeasor, it might be required to reimburse the indemnifying insurance company for its windfall of $28,281.50 ( = $200,000 + ½ ($343.237) — $343,237) as a matter of contract law or constructive trust doctrine. As no contract for indemnity is involved here, the constructive trust doctrine will guard against such a windfall in this case. See generally Restatement of Restitution § 160 (1937). Along similar lines, if Island/Gildersleeve had paid the full $343,237, it would be subrogated to THREA and could recover $171,618.50 from Sit-ka as subrogee. See generally Restatement of Restitution § 162 (1937). Any argument that in this situation THREA could not recover any amount in contribution because it "paid nothing" is thus flawed. . Sitka has asserted that Island/Gildersleeve contributed $200,000 in cash "of which $180,000 was paid to the Plaintiffs" and $20,000 combined with THREA's $143,237 to purchase an annuity for their benefit, such that THREA "actually paid" only $143,237 in settling the claims against it. On another occasion Sitka has indicated, as do the Fellows, that Island/Gil-dersleeve paid THREA, and THREA then proceeded to pay the Fellows the total amount due under the settlement. The sequence of payments is irrelevant. . See AS 09.16.020(3) ("[P]rinciples of equity applicable to contribution generally shall apply."). See generally W. Keeton, D. Dobbs, R. Keeton, and D. Owen, supra note 5, § 50, at 336-38. . We reject Sitka's argument that no recovery is possible because its liability was not extinguished by the settlement agreement as required by AS 09.16.010(d). Once all direct litigation against named parties is foreclosed, the settling defendant is entitled to contribution from non-settling tortfeasors, even-those dismissed due to the statute of limitations bar. Laitala, 658 P.2d at 113-16. It should also be noted that the apportionment of damages provisions of AS 09.17.080(d) are not applicable here, since this cause of action accrued prior to June 11, 1986. See ch. 139, § 9, SLA 1986.

10359490

Anthony J. MANCINI, Appellant, v. STATE of Alaska, Appellee

Mancini v. State

1992-09-25

No. A-4079/80

184

190

841 P.2d 184

841

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:43:20.157473+00:00

CAP

Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

Anthony J. MANCINI, Appellant, v. STATE of Alaska, Appellee.

Anthony J. MANCINI, Appellant, v. STATE of Alaska, Appellee. No. A-4079/80. Court of Appeals of Alaska. Sept. 25, 1992. Margaret W. Berck, Asst. Public Defender, Juneau, and John B. Salemi, Public Defender, Anchorage, for appellant. J. Ron Sutcliffe, Asst. Dist. Atty., Richard A. Svobodhy, Dist. Atty., and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

3328

21054

OPINION BRYNER, Chief Judge. Anthony J. Mancini entered pleas of no contest to, and was convicted of, one count of theft in the second degree, a class C felony, and one count of sexual abuse of a minor in the second degree, a class B felony. AS 11.46.130(a)(1) and AS 11.41.-436(a)(2). Superior Court Judge Walter L. Carpeneti sentenced Mancini to consecutive terms totalling ten years with one year suspended. Mancini appeals, arguing that the sentencing court erred in imposing consecutive sentences. Mancini also challenges the court's acceptance of one of the state's proposed aggravating factors and its rejection of one of Mancini's proposed mitigating factors. Finally, Mancini contends that the court erroneously added a condition of probation to the written judgment. We remand for resentencing. Mancini was convicted of second-degree theft for stealing watches, jewelry, coins, and other objects from the home of a man who had befriended him. The total value of the stolen property, for restitution purposes, was determined to have been $1,815. Mancini was convicted of second-degree sexual abuse of a minor for sexually abusing the seven-year-old daughter of a woman with whom he lived. The sexual abuse charge was wholly unrelated to the theft charge, but the two cases were consolidated for sentencing after Mancini entered pleas of no contest. At the -time of these offenses, Mancini was thirty years of age. He has an extensive criminal record and a history of juvenile offenses dating back to 1974. As an adult, Mancini has been convicted in California and Arizona of numerous crimes, including at least four felonies: second-degree burglary, grand theft, escape, and felony theft. Prior to his sentencing hearing, Mancini conceded that he had at least two prior felony convictions for presumptive sentencing purposes. By virtue of these prior felonies, Mancini was subject to a presumptive term of three years for second-degree theft, a class C felony. See AS 11.46.130(b); AS 12.55.125(e)(2). He was subject to a six-year presumptive term for sexual abuse of a minor in the second degree, a class B felony. See AS 11.41.-436(b); AS 12.55.125(d)(2). After finding no mitigating factors applicable to either charge, three aggravating factors applicable to the theft charge, and four aggravating factors applicable to the sexual abuse charge, Judge Carpeneti imposed the three-year presumptive term for theft and a consecutive term of seven years with one year suspended for sexual abuse. The judge ordered Mancini to complete three years' probation upon his release from prison. On appeal, Mancini first contends that Judge Carpeneti was mistaken in deciding to impose his sentences consecutively. Relying on Lacquement v. State, 644 P.2d 856 (Alaska App.1982), and Jones v. State, 744 P.2d 410, 414-15 (Alaska App.1987) (Singleton, J., concurring), Mancini argues that the judge should have used the six-year presumptive term for sexual abuse (the more serious of Mancini's two offenses) as the starting point for his sentencing analysis and should not have exceeded that benchmark without good cause. Mancini faults Judge Carpeneti for beginning his sentencing analysis by assuming that consecutive sentences would be warranted — an approach which, in Mancini's view, was prompted by the judge's undue reliance on the statutory preference for consecutive sentences expressed in AS 12.-55.025(e) and (g). In Lacquement v. State, 644 P.2d at 862, this court held that an offender who is simultaneously convicted for multiple offenses could be sentenced to consecutive terms exceeding the presumptive term for the single most serious offense only if the sentencing court made an express finding that the total term was actually necessary for the protection of the public. We subsequently modified the Lacquement rule, however, abandoning the narrow requirement of a finding of public danger and indicating that consecutive sentences exceeding the presumptive term for the most serious offense may be imposed for any reason that is sound. See Farmer v. State, 746 P.2d 1300, 1301-02 (Alaska App.1987). In Farmer, we stated: When an offender is convicted of multiple crimes, the presumptive term for the most serious crime remains an important benchmark — a benchmark that is not to be exceeded without good rea-son_ [H]owever, the appropriate focus is no longer on the narrow issue of public danger, but rather on whether a composite sentence exceeding the presumptive term is warranted under the totality of the circumstances. Id. In the present case, as Mancini correctly notes, Judge Carpeneti took a somewhat different approach than the one we suggested in Farmer. The judge started from the premise that consecutive sentences would be appropriate and inquired whether good reasons existed to impose concurrent, or partially concurrent, terms. Finding none, Judge Carpeneti ordered Mancini to serve his sentences consecutively. In context, however, this departure from the Farmer approach seems inconsequential. The fundamental concern of Farmer is not the point at which the court begins its process of determining an appropriate sentence, but rather the point at which the process concludes. Under Farmer, the crucial inquiry is whether the composite term actually imposed "is warranted under the totality of the circumstances." Id. at 1302. Whatever starting point the court might choose in a given case, the result it ultimately arrives at should be the same, as long as the court is aware of its discretion to impose concurrent sentences, gives consideration to that alternative, and decides on the composite sentence for reasons that are sound in light of the totality of the circumstances. Here, Judge Carpeneti was fully aware of his authority to impose Mancini's sentences concurrently; the judge seriously considered this alternative in light of the totality of the circumstances, but ultimately rejected it. Although the judge recognized and gave deference to the preference for consecutive sentencing expressed in AS 12.55.025(e) and (g), this was only one among many factors the judge considered. In our view, Judge Carpeneti did not give this factor undue prominence. Considering Mancini's extensive criminal history, the wholly unrelated nature of the offenses for which he was convicted, and the fact that the offenses involved different victims, Judge Carpeneti was not clearly mistaken in concluding that a composite term of ten years with one year suspended was warranted under the totality of the circumstances. We find no error in the court's decision to impose consecutive sentences. Mancini separately contends that Judge Carpeneti erred in rejecting a proposed mitigating factor as to the theft offense: that "the facts surrounding the commission of the [theft] offense and any previous offenses by the defendant establish that the harm caused by the defendant's conduct is consistently minor and inconsistent with the imposition of a substantial period of imprisonment." AS 12.-55.155(d)(13). As the proponent of the proposed mitigating factor, Mancini bore the burden of proving it by clear and convincing evidence. AS 12.55.155(f). With regard to Mancini's current theft conviction, the value of the stolen property was $1,815. While not particularly great, this is nevertheless considerably above the $500 jurisdictional limit for second-degree theft. AS 11.46.130(a)(1). The stolen property included jewelry and personal effects, some of which apparently had considerable sentimental value to their owner. The owner of the property was a man who had befriended Mancini when Mancini and his family were homeless and impoverished. Mancini stole the articles from the home of the owner. Considering the totality of the circumstances, it is far from clear that Mancini's conduct in the current case caused harm that was "minor and inconsistent with the imposition of a substantial period of imprisonment." AS 12.55.155(d)(13). Moreover, at the sentencing hearing, for purposes of establishing that his past crimes involved only minor harm, Mancini relied primarily on information contained in the presentence report and in various court records. This information was sketchy at best. While the totality of the information tended to indicate that Mancini's past crimes were not particularly serious, Judge Carpeneti was not clearly erroneous in concluding that it fell considerably short of clear and convincing proof that Mancini's past crimes had caused harm that was consistently minor. We find no error in the court's rejection of this mitigating factor. Mancini next contends that Judge Carpeneti erred in finding an aggravating factor applicable to his cases. The state alleged that Mancini was subject to the aggravating factor specified in AS 12.55.-155(c)(15), which applies when "the defendant has three or more prior felony convictions." Although Mancini acknowledged at the sentencing hearing that two of his out-of-state felony convictions were for offenses with elements similar to felonies under Alaska law, and that these convictions subjected him to presumptive sentencing as a third offender, he contended that his remaining out-of-state felonies did not qualify as prior felony convictions under AS 12.55.145(a)(2). Under AS 12.55.145(a)(2) a prior conviction triggers presumptive sentencing when it is a conviction in this or another jurisdiction of an offense having elements similar to those of a felony defined as such under Alaska law at the time the offense was committed is considered a prior felony conviction[.] At Mancini's sentencing hearing, the state did not dispute Mancini's contention that only two of his out-of-state convictions qualified as prior felony convictions under AS 12.55.145(a)(2). In the state's view, however, the definition of a "prior felony conviction" for purposes of triggering presumptive sentencing, as set out in AS 12.-55.145(a)(2), was inapplicable in determining whether Mancini had three or more prior felony convictions for purposes of the proposed aggravating factor. The state argued that, for purposes of aggravating factor (c)(15), a "prior felony conviction" would include any out-of-state conviction that was treated as a felony by the state in which it was entered. Over Mancini's objection, Judge Carpeneti adopted the state's argument and found the aggravating factor to be applicable. Mancini challenges the court's ruling. Our holding in Kuvaas v. State, 696 P.2d 684 (Alaska App.1985), is highly relevant on this issue. There, we found that the definition of "prior felony conviction" in AS 12.55.145(a)(2) was applicable to aggravating factor AS 12.55.155(c)(20); this factor applies if the defendant commits a crime while "on furlough . or on parole or probation for another felony charge or conviction[.]" We said, in Kuvaas: [I]f we do not apply the definition of felony conviction in AS 12.55.145(a)(2), we must either have no definition of what a prior "felony .charge or conviction" is under AS 12.55.155(c)(2) or we must make one out of whole cloth. It seems to us to be preferable to use the definition of felony conviction which is set forth in AS 12.55.145(a)(2). This construction . appears to be consistent with the rule of statutory construction that "ambiguities in penal statutes must be narrowly read and construed strictly against the government." Kuvaas v. State, 696 P.2d at 685 (citation omitted). The conclusion we reached with regard to aggravating factor (c)(20) in Kuvaas seems particularly appropriate with regard to aggravating factor (c)(15), given the purpose for which factor (c)(15) was adopted: [The statutory amendment enacting this factor] treats the presence of three or more prior felony convictions as an aggravating factor. This amendment is required since the Code recognized that two or more prior felony convictions will place the defendant in the most serious category for purposes of presumptive sentencing. However, no provision specifically allows the judge to consider the fact that the defendant may have, for example, six prior felonies as opposed to only two. This amendment allows the judge to consider prior felonies beyond those necessary to place the defendant in the most serious category of presumptive sentencing as an aggravating factor. Commentary and Sectional Analysis for the 1980 Amendments to Alaska's Revised Criminal Code, 1980 Senate Journal Supp. No. 44 at 24-25, 1980 Senate Journal 1436. This commentary establishes that aggravating factor (c)(15) and the statutory provisions triggering presumptive sentencing are integrally related — a relationship strongly suggesting that the definition of "prior felony conviction" set forth in AS 12.55.145(a)(2) was meant to apply to aggravating factor (c)(15). Accordingly, we conclude that the definition set forth in AS 12.55.145(a)(2) must govern AS 12.55.-155(c)(15). Since it is undisputed here that no more than two of Mancini's prior convictions qualified as prior felony convictions under this definition, Judge Carpeneti erred in finding aggravating factor (c)(20) applicable to Mancini's cases. The state argues that any error was harmless, because Judge Carpeneti found other aggravating factors applicable and because Mancini's sentences reflect only minimal adjustments to the applicable presumptive terms. However, Judge Carpene-ti's sentencing remarks establish that his decision to impose consecutive sentences was at least partially influenced by the existence of aggravating factors. It is impossible for us to determine whether the judge's mistaken reliance on factor (c)(15) had any appreciable influence on Mancini's composite sentence. Under the circumstances, we find it necessary to remand for resentencing without reliance on aggravating factor (c)(15). Mancini's final claim involves a condition of probation. In his oral sentencing remarks, Judge Carpeneti specified that, as a condition of probation, Mancini would be required to pay restitution of $1,815 and that, in addition, he would be subject to "standard conditions of probation." The court's subsequently issued written judgment included a probation condition requiring Mancini to reside in a halfway house for the first six months following his release from prison. Mancini contends that this is not a "standard" condition of probation and that its inclusion in the written judgment was therefore, improper. The state counters that the condition should be deemed standard and upheld as such. It is well settled that a sentence cannot be enhanced once it has been validly imposed in open court. See, e.g., Love v. State, 799 P.2d 1343 (Alaska App.1990). Moreover, it is settled that a sentence imposed by the court "must be framed with clarity and accuracy in order to avoid the possibility of injustice and confusion" and that "where a criminal sentence is ambiguous it must be interpreted in favor of the individual who has been deprived of his liberty." Chase v. State, 479 P.2d 337, 339-40 (Alaska 1971). Here, the record provides no insight into precisely what Judge Carpeneti meant when he stated that Mancini would be subject to the "standard conditions of probation." We have seen the term used by sentencing judges to refer to conditions of probation that are invariably included in judgments, without regard to the specific circumstances of a given ease. Conditions of this type might include the requirement of reporting regularly to a probation officer, or the duty of refraining from any violations of the law. We have no basis for determining the conditions of probation that Judge Carpeneti regularly imposes. It seems questionable, however, whether the condition disputed in this case falls into the "standard condition" category. In our experience, conditions of probation requiring six months' residency in a halfway house are imposed relatively infrequently. It is conceivable that this condition may have been included in Mancini's written judgment by oversight or inadvertence. The issue has evidently never been presented to or considered by Judge Carpeneti. Since we must remand this case for resen-tencing in any event, we believe it best to refer the issue to the sentencing court on remand. If the court determines that the disputed condition is not "standard" the court should strike it from the amended judgment on remand. On the other hand, if the court concludes that the condition is one that Mancini should readily have understood to be standard, the court should make specific findings in support of this conclusion. This case is REMANDED for resentenc-ing. . AS 12.55.025(e) and (g) provide: (e) Except as provided in (g) and (h) of this section, if the defendant has been convicted of two or more crimes, sentences of imprisonment shall run consecutively. If the defendant is imprisoned upon a previous judgment of conviction for a crime, the judgment shall provide that the imprisonment commences at the expiration of the term imposed by the previous judgment. (g) If the defendant has been convicted of two or more crimes before the judgment on either has been entered, any sentences of imprisonment may run concurrently if (1) the crimes violate similar societal interests; (2) the crimes are part of a single, continuous criminal episode; (3) there was not a substantial change in the objective of the criminal episode, including a change in the parties to the crime, the property or type of property right offended, or the persons offended; (4) the crimes were not committed while the defendant attempted to escape or avoid detection or apprehension after the commission of another crime; (5) the sentence is not for a violation of AS 11.41.100-11.41.470; or (6)the sentence is not for a violation of AS 11.41.500-11.41.530 that results in physical injury or serious physical injury as those terms are defined in AS 11.81.900. In State v. Andrews, 707 P.2d 900 (Alaska App.1985), aff'd, 723 P.2d 85 (Alaska 1986), we construed this statutory language to express a preference for consecutive sentencing, while leaving judges with discretion to impose concurrent sentences. . In finding the definition set forth in AS 12.55.-145(a)(2) inapplicable for purposes of applying aggravating factor (c)(15), Judge Carpeneti found Kuvaas readily distinguishable. This was because he believed the wording of aggravating factor (c)(20), which we construed in Kuvaas, to differ significantly from the wording of factor (c)(15). It appears, however, that Judge Car-peneti mistakenly relied on the current wording of factor (c)(20), not the wording that was in effect when we decided Kuvaas. In its current form, AS 12.55.155(c)(20) applies if the defendant commits a crime while on furlough, probation or parole "for another felony charge or conviction that would be considered a prior felony conviction under AS 12.55.145(a)(2)." However, this wording was adopted by the legislature in 1986, shortly after we decided Kuvaas. See ch. 37, § 19, SLA 1986. The 1986 amendment added the phrase "that would be considered a prior felony under AS 12.55.145(a)(2)" to the preexisting version of factor (c)(20), thus making the factor conform to our holding in Kuvaas. Prior to the 1986 amendment, the wording of factor (c)(20) was, for purposes of the present case, functionally identical to the current wording of factor (c)(15). On appeal, the state attempts to find significance in the fact that the 1986 amendment altered the language of factor (c)(20), without also changing factor (c)(15). Given the lack of any legislative history concerning the 1986 amendment, as well as the amendment's apparently narrow purpose of addressing the issue decided in Kuvaas, we find the state's argument unpersuasive. . We note an additional matter that should be addressed on remand. With regard to the theft charge, the state initially proposed, but later withdrew, the aggravating factor stated in AS 12.55.155(c)(18)(A): that the offense was committed against a member of the social unit living together with the defendant. The state also proposed aggravating factor (c)(21): that the defendant had a criminal history of similar offenses. Mancini did not dispute this latter factor. At the conclusion of the hearing on aggravating and mitigating factors, Judge Carpeneti found factor (c)(21) to be established, but did not find factor (c)(18)(A), since the state had withdrawn it as to the theft charge. Mancini's written judgment, however, mistakenly indicates that the court found factor (c)(18)(A) applicable as to the theft charge, but makes no reference to factor (c)(21), which the court did find applicable.

10343500

STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION, Appellant, v. William R. ALLSOP and April Castleman, Appellees

State, Department of Revenue, Child Support Enforcement Division v. Allsop

1995-09-08

No. S-6472

790

796

902 P.2d 790

902

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:43:34.517492+00:00

CAP

Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION, Appellant, v. William R. ALLSOP and April Castleman, Appellees.

STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION, Appellant, v. William R. ALLSOP and April Castleman, Appellees. No. S-6472. Supreme Court of Alaska. Sept. 8, 1995. Diane L. Wendlandt, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellant. Kenneth C. Kirk, Anchorage, for Appellee Allsop. Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

3961

24737

OPINION MOORE, Chief Justice. I. INTRODUCTION The Child Support Enforcement Division (CSED) initiated support collection measures at the administrative level against William Allsop, whereupon Allsop sued his ex-wife and CSED to disestablish his paternity. CSED appeals from two aspects of the trial court's decision: (1) its holding that such an action lies against the State; and (2) its decision to award Allsop full attorney's fees based upon its finding that CSED litigated vexatiously and in bad faith. We affirm the trial court's conclusion that CSED is a proper defendant, but we vacate the award of full fees. II. FACTS AND PROCEEDINGS William Allsop and April Castleman wed in April 1988. Approximately one month later, Allsop was incarcerated. During his five years in prison, Allsop apparently received no conjugal visits and gained no other opportunities for access to his wife. Castleman gave birth to Karissa Young on October 5, 1989. As required by state law, Allsop was listed as the father on Karissa's birth certificate. However, when Castleman applied for AEDC benefits shortly after the birth of her daughter, she listed a man she had been living with, Shaun Lewis Young, as the child's father on forms for use by CSED. In November 1990, while Allsop remained imprisoned, he and Castleman obtained a California decree dissolving their marriage. The Joint Petition for Summary Dissolution of Marriage had been signed and submitted by both parties. The petition was a standard-form document, with one term providing that there were "no minor children born of our relationship before or during our marriage." In May 1993 CSED wrote to Castleman and explained that despite the dissolution and her identification of Young as the biological father, Allsop retained his status as Kar-issa's legal father. The letter urged Castle-man to take additional steps to disestablish Allsop's paternity or else CSED would be required to seek support from him: The Alaska Department of Vital Statistics has advised us that the dissolution entered in . California is not sufficient to remove 'William Allsop's" name from Karissa's birth certificate as she was born during the marriage and the dissolution does not specify that he is not Karissa's father. If you wish to pursue a paternity action against Shaun Young, you will need to obtain an "amended dissolution" which specifically states that 'William Allsop" is not Karissa's father and has no parental or financial responsibilities for her. We will suspen[d] the action on our case for 60 days to allow you time to initiate action to amend the California dissolution. If you have not . verif[ied] that you have initiated this action within 60 days from the above date, we must pursue action against 'William Allsop" as he is considered Karissa's legal father until an order is entered releasing him of his responsibility for her. CSED followed up with a similar letter to Castleman in September 1993, and asked her to complete another form pertaining to paternity. Although Allsop's name was typed in the space marked "alleged/most likely father," Castleman supplied dates for their sexual relationship which were too early for Allsop to have been Karissa's father. On the next page, where she was to indicate who else could be the biological father, Castleman again identified Young and stated, "This man is the father." Two months later, CSED sent Allsop a Notice and Finding of Financial Responsibility. The notice stated that Allsop had an accrued debt for assistance paid of $2,520 and that he would be responsible for an ongoing support obligation of $50 per month to benefit Karissa. Allsop contested these findings, requested an informal conference, and initiated the present action. Allsop brought a complaint against CSED and Castleman requesting a decree disestablishing his paternity of Karissa. He simultaneously moved for an order enjoining CSED from collecting any support for Karissa's benefit from him. Allsop attached an affidavit in which he detailed his belief that he could not possibly be the father: I was continually incarcerated from 1988 through 1993. I did not have any parole, probation, work release, or other way of getting out of prison. I did not escape at any time. I did not have any conjugal visits. I did not have intercourse with April Castleman. I cannot be the father of a child born in October 19[89]. CSED opposed the motion to stay collection of support, explaining that the State is charged with a non-discretionary duty to establish and collect support from legally obligated parents. CSED further cited case law providing that a child born to a married woman is presumed to be the offspring of her husband unless rebutted by "clear and convincing evidence." Smith v. Smith, 845 P.2d 1090, 1092 (Alaska 1993). CSED argued that as Karissa's legal father, Allsop possesses a duty of support until a court determines by clear and convincing evidence that the presumption of paternity is overcome. CSED also answered the complaint. In it CSED admitted that Allsop was taken into custody in May 1988. However, because CSED lacked sufficient knowledge concerning the nature of Allsop's custody, it denied Allsop's allegation that he could not be the biological father. CSED additionally raised the affirmative defense that Allsop's claim for disestablishment of paternity was not an actionable claim against the State. Castleman's Answer was comparatively succinct: "I, April Castleman, Agree with the Plaintiff, William R. Allsop, in that he is not the natural, biological, father of Karissa Young, the child in question. Shaun Lewis Young, a man with whom I was living at the time of Karissa's conception, is the biological father." The trial court ordered CSED to temporarily stay collection of all child support or support arrears against Allsop and directed that a hearing be held on "substantial questions regarding paternity." The order also explicitly invited CSED to drop its administrative collection action against Allsop. Although CSED complied with the stay, it did not dismiss its administrative case. Allsop thereafter moved for summary judgment. CSED filed a non-opposition to Allsop's summary judgment motion, admitting that "it appears that there is enough evidence from which the court can make a finding that Mr. Allsop has rebutted the presumption of his paternity by clear and convincing evidence." However, CSED continued to press the contention that its pursuit of Allsop was legitimate. CSED insisted that the agency is not empowered to make determinations of nonpaternity. In a ease involving a child born during the marriage, CSED argued that "one of the parties to the marriage must initiate proceedings in court to delegitimize a child if that is what they wish to do.... Now that Mr. Allsop has initiated such proceedings . CSED will then be able to initiate proceedings [to] establish the paternity of Karissa as . a child 'born out of wedlock.'" (Quoting former AS 25.27.040, amended by ch. 57, § 9, SLA 1995.) CSED also requested that the court dismiss the State from Allsop's nonpaternity action, arguing that CSED cannot be a proper defendant to a nonpaternity action brought by a legally presumed father. Before the court ruled on the summary judgment or dismissal motions, a hearing was held before a judicial master on the substantive question of paternity. The transcript reveals that CSED acknowledged that the evidence did not support a finding that Allsop was the biological father. In fact, CSED affirmatively advocated for the disestablishment of Allsop's paternity: So the state would request that you recommend to the court that it grant the summary judgment motion on the paternity issue and enter an order declaring that Mr. Allsop is not the father of the minor child. And with that order the state can then proceed against the other alleged father. Following the hearing, the trial court granted Allsop's motion for summary judgment, denied CSED's motion to dismiss, and ordered CSED to terminate any collection or enforcement efforts directed at Allsop for the benefit of Karissa. The trial court also declared Allsop the prevailing party, and awarded him full attorney's fees against the State in the amount of $775. In entering the fee award, the court relied upon Alaska Civil Rule 82(b)(3)(G), which permits a variation from the fee schedule for "vexatious or bad faith conduct." The court provided the following justifications for awarding Allsop full fees: 1. The State was told from the beginning that Mr. Allsop was not the father. 2. Mr. Allsop was incarcerated in April of 1988 while married to the mother of the child, but the child was not born until October of 1989. 3. The CSED also had the California court order that there were no children of the marriage of Mr. Allsop and Ms. Castleman. Still CSED determined that that was not enough to rebut the presumption of paternity. 4. Still, in spite of having all of the previous information that Mr. Allsop was not the father, CSED forced Mr. All-sop to file paperwork to defend himself in court. Thus, this court determines that CSED proceeded in a vexatious and bad faith manner, thus the allowance of full attorney's fees and costs to Mr. Allsop. CSED moved unsuccessfully for reconsideration. The trial court elaborated that from the outset, CSED possessed "more than clear and convincing evidence" that Allsop was not Karissa's biological father. The court stated that when the State "chose to rely on the presumption that a child born during the marriage is a child of the marriage," CSED abused its administrative discretion. CSED appeals. III. DISCUSSION CSED presents two narrow questions for review: (1) whether Allsop's action for disestablishment of paternity lies against the State; and (2) whether the trial court's decision to award Allsop full attorney's fees constituted an abuse of discretion. CSED links these issues with a more general objection to the trial court's implicit ruling that CSED possessed broad discretion to disregard the presumption of Allsop's paternity. CSED argues that in the ease of a man presumed by law to be a child's father, even if CSED knows that the presumption can be easily rebutted, the State must pursue him for child support. A. Allsop's Claim for Disestablishment of Paternity Lies Against CSED In support of its contention that a claim for disestablishment of paternity cannot lie against the State, CSED contends that an action for a declaration of nonpaternity is analogous to an action for divorce, a claim properly brought by and against only the parties to that legal relationship. CSED ar gues that because the agency is a complete foreigner to Allsop's marriage and to the creation of his status as Karissa's legal father, the State should have been dismissed from the ease. In the alternative, CSED argues that even if third parties may be named as defendants in a nonpaternity action, the State is not a proper defendant because it possesses no independent authority to disestablish Allsop's paternity. Whether a cause of action lies against a particular class of defendants is a question of law. We review questions of law by exercising our independent judgment. See Gain v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). Regardless of whether we accept CSED's contention that it does not possess the authority to disestablish Allsop's paternity at the administrative level, we agree with the trial court that Allsop's claim for declaration of nonpaternity is actionable against CSED. CSED pursued Allsop for child support based upon his status as Karissa's legal "parent." This status, with its consequent liability for Karissa's financial support, exposed Allsop to any number of extensive support collection remedies available to CSED by statute. As CSED stated in the Notice and Finding of Financial Responsibility sent to Allsop which set an ongoing support obligation and announced an accrued debt for assistance paid, Unless you object in writing to the duty of support and/or payment amount within 30 days, this NOTICE AND FINDING OF FINANCIAL RESPONSIBILITY will be legal and binding upon you. Your income and property, including unemployment compensation and retirement benefits, will be subject to lien, foreclosure, distraint, seizure, sale and order to withhold and deliver to satisfy the debt WITHOUT FURTHER ADVANCE NOTICE OR HEARING. (AS 25.27.230-.270) Execution against your retirement benefits may result in involuntary termination from the retirement program. Allsop's Notice explicitly warned that his permanent fund dividends, federal income tax refunds, income, and other property "will be withheld." The administrative remedies available to CSED and described in the Notice provide the agency with an exceptional degree of power to collect support from delinquent parents. See, e.g., AS 25.27.250 (granting CSED the power to issue orders to withhold and deliver obligor's real or personal property); AS 25.27.230 (providing that CSED may record liens upon obligor's real or personal property); AS 25.27.253. (providing that CSED may record liens that direct the State to withhold earnings and tax refunds). However, the legislature also provided a remedy for obligor "parents" in Allsop's situation who wish to challenge the agency's authority to establish and enforce a support obligation against them. At least two statutes entitled Allsop to resort to the courts to obtain appropriate relief. AS 25.27.210, amended by ch. 57, § 17, SLA 1995; AS 25.27.270. Because the basis for such relief was his non-parentage, Allsop was also justified in naming CSED as a co-defendant to his action for declaration of nonpaternity. Moreover, even in the absence of express statutory authority, the result that we reach here is bolstered by the fact that while the State has a general interest in ensuring that paternity determinations are made correctly, in the present ease, CSED possesses a tangible interest in the paternity of Karissa. As Allsop notes, CSED provides Castleman with AFDC benefits, and, as a condition of this arrangement, Castleman assigned her rights to support "from all sources" over to the agency. See AS 47.25.345. This plainly gives CSED a real interest in the paternity of Karissa. We are persuaded that Castle-man alone may not have adequately protected the State's interest. Compare Keating v. Traynor, 833 P.2d 695, 696 & n. 2 (Alaska 1992) (allowing custodial mother who had assigned right to support to CSED to intervene in CSED's motion to modify prior support order because her interest was "inadequately represented" by agency). Thus, unless Allsop wished to sue Castleman solely and risk that CSED would not be bound by a resulting declaration of nonpaternity, Allsop was doubly justified in joining CSED in an action to disestablish his paternity. B. The Trial Court Erred in Awarding Allsop Full Attorney's Fees Having rejected CSED's argument that the State cannot be a proper defendant to an action for disestablishment of paternity, we turn to the remaining issue: whether Allsop deserved full attorney's fees because CSED "proceeded in a vexatious and bad faith manner" in "forc[ing] Mr. Allsop to file paperwork and defend himself in court." An award of full attorney's fees is manifestly unreasonable in the absence of a finding of bad faith or vexatious conduct. Demoski v. New, 737 P.2d 780, 788 (Alaska 1987). An award of full fees entered due to bad faith or vexatious conduct is reviewable for abuse of discretion. Keen v. Ruddy, 784 P.2d 653, 657 (Alaska 1989); Crook v. Mortenson-Neal, 727 P.2d 297, 306 (Alaska 1986). As described above, the trial court entered specific findings to support the award of full fees. The court determined that after learning that Allsop and Castleman believed that Allsop was not Karissa's father, that Allsop was imprisoned during the period of possible conception, and that the parties had obtained a "court order that there were no children of the marriage," the agency proceeded beyond the bounds of good faith litigation when it determined that there was still insufficient evidence "to rebut the presumption of paternity." We believe that the trial court's characterization of CSED's defense is unwarranted, and therefore vacate the award of full fees. The trial court's stated reasons are insufficient to justify an award of full fees in part because they rely upon a flawed premise: that it was wholly unreasonable for CSED to question its authority to unilaterally determine Allsop's nonpaternity. Although we concluded that CSED's arguments regarding possible limitations on its powers to establish and disestablish paternity were irrelevant as to whether Allsop's action lies in the first instance against the State, these contentions have direct bearing upon the motivations of the agency in choosing not to allow a default judgment to be entered against it and to formally oppose Allsop's motion for a stay of the administrative proceedings against him. CSED emphatically contended at every stage of these proceedings that regardless of any appearance of Allsop's nonpaternity, until a court declares by clear and convincing evidence that Allsop is not Karissa's father, CSED had no choice but to regard Allsop as a parent liable for her support. CSED bases this conclusion in part upon AS 25.27.040(a), amended by ch. 57, § 9, SLA 1995, which authorizes CSED to bring paternity actions only for "children born out of wedlock." CSED contends that because the agency possesses no express authority to establish pa ternity for children born "in wedlock," and because no statutory mechanism allows the agency to independently disestablish the paternity of a legally presumed father or bring an action in court to disestablish paternity on his behalf, CSED had no discretion to drop its case against Allsop for the purpose of initiating a paternity action against a more likely candidate. We need not reach the merits of CSED's argument. It is sufficient to note that we consider the agency's legal position tenable and not so devoid of merit as to indicate a bad faith or vexatious intent. It is apparent from the record that CSED reasonably believed that until a court declared that Allsop was not Karissa's father by clear and convincing evidence, the State's hands were tied. Moreover, under these circumstances, it is revealing that CSED never opposed Allsop's substantive claim of nonpaternity but affirmatively acknowledged to the judicial master, as well as to the trial court, .that the evidence did not support a view that Allsop was Karissa's biological father. Given this record, we do not believe that CSED's legal arguments and conduct rose to the level of egregiousness generally required to warrant the imposition of full fees. We therefore hold that the court's finding of bad faith was an abuse of discretion. Cf. Crook, 727 P.2d at 306 (affirming award of full fees based upon trial court's specific finding that "[d]e-fendants litigated a weak and incredible defense"). This result is further supported by the fact that in drafting its specific findings, the trial court overstated the strength of the evidence in Allsop's favor. The trial court specifically found that CSED was in possession of a "California court order that there were no children of the marriage of Mr. Allsop and Ms. Castleman." In our view, the trial court's characterization of the order of dissolution of the marriage is clearly erroneous. The dissolution that Allsop and Castleman obtained in California was the product of an uncontested, summary proceeding. Allsop and Castleman filed a standard-form joint petition for dissolution, one of the terms of which stated that "[tjhere are no minor children born of our relationship". The judgment of dissolution was entered as a standard-form order which took the pleadings on their face, terminated the marriage, and restored Castleman's former name. No adjudication of paternity occurred at that time, and thus, even if CSED possessed the authority to independently disestablish Allsop's paternity, it would have been justified in giving the California order very little weight. IV. CONCLUSION We AFFIRM the trial court's conclusion that CSED is a proper defendant to Allsop's claim for disestablishment of paternity. However, the record does not support the trial court's decision to award Allsop full fees based upon a finding that CSED conducted its defense vexatiously and in bad faith. We therefore VACATE the award of full attorney's fees and remand for the entry of a partial fee award. . Karissa was therefore bom almost 17 months after Allsop was imprisoned. . See AS 18.50.160(d) (providing that when a married woman gives birth, her husband's name shall be entered on the birth certificate); 7 AAC 5.390. . Allsop did not seek attorney's fees against Cas-tleman. . The $775 fee award fell short of Allsop's request of $1,642 in actual attorney's fees. Nevertheless, because only $775 out of the $1,642 request was adequately documented, we treat this as an award of "full" fees. . Allsop contends that by "aggressively litigating the substantive issues in the case," CSED either waived the argument that it is not a proper defendant or CSED must be estopped from raising it on appeal. Allsop cites no legal authority for this proposition, and we find his waiver argument meritless. Even if it were possible for a defendant to inadvertently waive the defense that an action against him cannot lie, the record demonstrates that nearly all of CSED's efforts below were directed at explaining why the State was not a proper defendant. . Former AS 25.27.210, amended by ch. 57, § 17, SLA 1995, provided in relevant part: Judicial review of administrative decisions and actions, (a) Judicial review by the superior court of an agency decision establishing . a duty of support . may be obtained by filing a notice of appeal.... (e) The superior court may enjoin agency action in excess of constitutional or statutory authority at any stage of an agency proceeding. If agency action is unlawfully or unreasonably withheld, the superior court may compel the agency to initiate action. . AS 25.27.270 provides: Judicial relief from administrative execution. Any person against whose property a lien has been recorded under AS 25.27.230 or an order to withhold and deliver served in accordance with AS 25.27.250 may apply for relief to the superior court. . CSED briefly argues that the trial court erred in determining that Allsop was the prevailing party. We are unpersuaded by this contention, since Allsop obtained formal relief on the merits for virtually everything that he sought: disestablishment of his paternity and an order requiring CSED to permanently cease its enforcement efforts against him. See Continental Ins. Co. v. United States Fidelity & Guar. Co., 552 P.2d 1122, 1125 (Alaska 1976) (holding that a prevailing party determination will be overturned only for an abuse of discretion). . Former AS 25.27.040(a), amended by ch. 57, § 9, SLA 1995, provided in relevant part: The agency shall appear on behalf of minor children or their mother or legal custodian or the state and initiate efforts to have the paternity of children bom out of wedlock determined by the court. (Emphasis added.) . The legislature recently enacted a statute which directs CSED to establish procedures and standards for the disestablishment of paternity of a child whose paternity was established other than by court order. See AS 25.27.166(a); ch. 57, § 14, SLA 1995. Because it was enacted well after the outset of the present case, AS 25.27.166(a) has no relevance here. . When the agency answered Allsop's complaint, it "denied" the allegation that Allsop could not be Karissa's biological father. However, CSED's denial was a result of its professed lack of knowledge sufficient to form a belief regarding the conditions of Allsop's incarceration. See Alaska R.Civ.P. 8(b). Given the character of CSED's denial, the fact that this was the only instance in which CSED "contested" All-sop's paternity, and the agency's decision to file a non-opposition to Allsop's motion for summary judgment, we refuse to regard the denial as evidence of a clearly inappropriate defense.

11116500

Ralph G. HESS, Petitioner, v. STATE of Alaska, Respondent

Hess v. State

2001-04-13

No. S-8876

1121

1130

20 P.3d 1121

20

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:43:06.307332+00:00

CAP

Before MATTHEWS, Chief Justice, EASTAUGH, FABE, and CARPENETI, Justices. [BRYNER, Justice, not participating.].

Ralph G. HESS, Petitioner, v. STATE of Alaska, Respondent.

Ralph G. HESS, Petitioner, v. STATE of Alaska, Respondent. No. S-8876. Supreme Court of Alaska. April 13, 2001. Darrel J. Gardner, Assistant Public Advocate, and Brant McGee, Public Advocate, Anchorage, for Petitioner. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Bo-telho, Attorney General, Juneau, for Respondent. Before MATTHEWS, Chief Justice, EASTAUGH, FABE, and CARPENETI, Justices. [BRYNER, Justice, not participating.].

5196

31343

OPINION EASTAUGH, Justice. I. INTRODUCTION Ralph Hess was charged with sexually assaulting H.W. When he raised the defense of consent, Alaska Rule of Evidence 404(b)(8) permitted the state to call A.R. to testify that Hess had previously had nonconsensual sex with her. The superior court denied Hess's request that the jury be told that another jury had acquitted him of sexually assaulting AR. Because we conclude that the evidence of that acquittal was relevant and not hearsay, that its potential for confusion did not outweigh its potential probative value, and that its exclusion prejudiced Hess, we reverse and remand for a new trial. II. FACTS AND PROCEEDINGS Hess had sex with H.W. near Kotzebue on October 9, 1994. After H.W. reported that she had not consented, Hess was charged with first-degree sexual assault and kidnap-ing. Before trial, in anticipation of Hess's consent defense, the state filed notice that it intended to offer evidence, per Alaska Rule of Evidence 404(b)(1), (2), and (8), that Hess previously had sexually assaulted AR. Hess responded by requesting a limiting instruction on the use of this evidence; the instruetion would have told the jury that a jury had acquitted Hess of first-degree sexual assault in the A.R. case. The state did not object to informing the jury of the prior acquittal, but asked for permission to introduce evidence that the jury in the A.R. case had convicted Hess on a lesser alternative charge, sexual abuse of a minor. The superior court denied both requests and ordered that "neither evidence of the acquittal nor evidence of the conviction on the lesser charge [will] come in before the jury." Hess testified that HW. had consented to have sex with him. The state then called AR. to rebut Hess's defense that HW. had consented. AR. testified that Hess had sexually assaulted her while she was staying at his home in Kotzebue. The jury convicted Hess of kidnaping and one count of first-degree sexual assault, but acquitted him of a second count of first-degree sexual assault. Hess appealed. The court of appeals affirmed the superior court's refusal to tell the jury of the verdicts in the prior case. It stated that "Hess wished to introduce the previous jury's verdict as evidence that he was factually innocent of having sex with AR. against her will." The court of appeals reasoned that "the prior acquittal did not establish that Hess was factually innocent, but only that the jury was not convinced beyond a reasonable doubt." It concluded that Hess's prior acquittal had little relevance. It also noted that, "offered for the purpose of establishing Hess's factual innocence, the prior jury's verdict was hearsay." Hess filed a petition for hearing. We granted his petition to consider whether he should have been allowed to show that he had been acquitted of the prior sexual assault charge. III, DISCUSSION A. Standard of Review We review questions of law presented by the superior court's evidentiary rulings de novo. When interpreting a statute or rule, we adopt "the rule of law that is most persuasive in light of precedent, reason, and policy." But we will not overturn a trial court's evidentiary rulings that do not present questions of law, except for abuse of discretion. Hess asks for de novo review. The state urges us to review for abuse of discretion; it claims that other courts review for abuse of discretion and that Hess conceded that the trial court has discretion to admit such evidence. Whether a trial court may take judicial notice of a defendant's acquittal of properly introduced other-act evidence and instruct a jury about that acquittal is a question of law which we review de novo. If the law permits such an instruction, we must consider whether the superior court abused its discretion by declining to inform the jury of Hess's acquittal. B. When the State Offers Evidence of a Prior Sexual Assault to Rebut a Consent Defense, Is Evidence of the Defendant's Acquittal of the Prior Assault Admissible? First-degree sexual assault requires evidence that the defendant (1) knowingly engaged in sexual intercourse, and (2) recklessly disregarded the victim's lack of consent. Before 1994 the state could not prove a defendant's requisite mental state in sexual assault cases by introducing evidence of other acts tending to show that the defendant exhibited a propensity for reckless disregard of his victim's wishes. But in 1994 the Alaska legislature expanded the admissibility of other-acts evidence in sexual assault prosecutions by amending Alaska Evidence Rule 404. Alaska Evidence Rule 404(b)(B) now permits the prosecution to offer evidence of other sexual assaults or attempted sexual assaults if the defendant raises the defense of consent: In a prosecution for a crime of sexual assault in any degree, evidence of other sexual assaults or attempted sexual assaults by the defendant against the same or another person is admissible if the defendant relies on a defense of consent. In a prosecution for a crime of attempt to commit sexual assault in any degree, evi-denee of other sexual assaults or attempted sexual assaults by the defendant against the same or another person is admissible. Congress in 1994 also amended the federal rule regarding admissibility of prior sexual assaults; the federal rule now allows evidence of similar offenses "for its bearing on any matter to which it is relevant." As a general rule, evidence that a defendant committed a prior act is inadmissible for the purpose of proving the defendant's propensity to commit the act currently charged. The amended federal rule has been interpreted to be an exception to that general rule. We adopt that interpretation for Alaska's corresponding evidence rule as amended in 1994. Accordingly, when evidence of a prior sexual assault is introduced under Alaska Evidence Rule 404(b)(@8), we view the defendant's attempt to introduce evidence that he was acquitted of the prior assault as an attempt to show reasonable doubt about his propensity to disregard the new complainant's lack of consent. 1. Is evidence of an acquittal logically relevant? When the superior court declined to inform the jury of Hess's acquittal, it explained that Evidence Rule 404(b)(8) "does not presuppose a prior charge; it presupposes a prior incident" and that "the issue of conviction or acquittal is irrelevant under what's required of this rule." Hess disputes the court of appeals's statement that he offered the acquittal for the purpose of proving that he was factually innocent of having non-consensual sex with AR, He argues that the acquittal is relevant to the weight the H.W. jury gave ARs testimony. The state argues that the relevance of an acquittal is limited to issues-double jeopardy and collateral estoppel-that are not material here. It asserts that an acquittal does not prove that the defendant was innocent, but merely establishes that the jury had reasonable doubt about the defendant's guilt. Evidence must be relevant to be admissible. Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." We agree that a defendant's acquittal of one charge is generally not relevant to prove factual innocence of the facts underlying that charge. Such evidence is not relevant for that purpose because it proves only that the state did not prove every element of the crime beyond a reasonable doubt. But evidence of an acquittal may have an alternative purpose-to help the jury weigh the evidence of the prior act. Even though the defendant's acquittal does not prove that he was innocent of the prior act, a jury may reasonably infer a greater probability of innocence from the fact of acquittal. Alaska's relevance definition allows evidence to be admitted if it has "any" tendency to make the existence of a material fact more or less probable. One commentator explains the "minimal relevance" approach with an example of a fleeing suspect: Fleeing the scene of a crime, for instance, could mean that the defendant, being conscious of the crime charged, actually is guilty; or it could mean that the defendant is innocent but fled to avoid being apprehended for some other reason entirely. However, the premise that, in general, people who flee are more likely to be guilty than those who do not is at least plausible, and as long as there is some plausible chain of reasoning that leads to the desired conclusion, the evidence is probative of that conclusion. Thus, although the acquittal does not prove that Hess was innocent of the prior charge, the H.W. jury might plausibly have reasoned that the fact of the acquittal made it less likely that Hess recklessly disregarded AR.'s wishes. It might also plausibly have reasoned that the fact of the acquittal made it less likely that Hess had a propensity to recklessly disregard a companion's lack of consent. The jury therefore might also plausibly have reasoned that the fact of the acquittal made it less likely that Hess recklessly disregarded H.W.'s wishes. Hess's acquittal was therefore relevant. 2. Is evidence of the acquittal inadmissible hearsay? The superior court did not exclude evidence of Hess's acquittal on hearsay grounds. But the court of appeals discussed hearsay as an alternative ground for exclusion. Hess asserts that hearsay does not preclude admission and challenges the legal authority cited by the court of appeals. The state argues that evidence of the acquittal is hearsay and does not fall within any hearsay exception. Alaska Rule of Evidence 802 provides that hearsay is not admissible. Alaska Rule of Evidence 801 defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." If offered for the purpose of challenging the weight of A.R.'s testimony, the only purpose for which it is relevant, notice or evidence of his acquittal is not hearsay. An acquittal is an act that has legal effect, much like the classic example of a contract that is formed out of court, but which is not hearsay. Such "statements" are not testimonial, but are acts to which the law attaches legal significance. Evidence of an acquittal has legal significance. It shows that a jury harbored reasonable doubt about at least one element of a crime. The prior acquittal does not prove the "truth" of the historical facts of the first case; it proves only that the previous jury did not find that the state proved all elements of the crime beyond a reasonable doubt. The court of appeals relied on our decision in Spenard Action Committee v. Lot 3, Block 1, Evergreen Subdivision. There we adopted the policy articulated in the Alaska Evidence Rules commentary against admitting criminal judgments. The commentary explains: If a judgment of guilty in a criminal case, which follows proof beyond a reasonable doubt, is to have impact in subsequent cases, the impact should be by way of collateral estoppel, not by admitting the previous judgment. The judgment tells the second trier of fact nothing; that trier will cither disregard it or defer to it, neither of which tactic is intended by the Federal Rule.... But the fact remains that the trier of fact in the second case cannot know how to use the first finding. There is no reason to adopt a rule that can only confuse the trial process. The court of appeals also discussed F.T. v. State. There we held that the trial court erred when it took judicial notice of previous domestic violence restraining orders to find that a child's father had a history of violence. We did not discuss hearsay, but concluded that the trial court erred by taking notice of facts alleged in court records. At first glance, Spenard Action Committee, FT., and the commentary suggest that acquittals, like convictions, usually should not be excepted from the general rule that they are inadmissible hearsay. But this case differs from those cases and does not conflict with the policy the commentary expresses. In Spenard Action Committee, the proponent attempted to establish the historical facts of the case at bar-namely that the business was a house of prostitution-by introducing evidence that a non-party employee of that business had been convicted of assignation in an earlier case. And, like the proponent in Spenard Action Committee, the trial court in F.T. impermis-sibly attempted to establish the historical facts of a party's conduct by adopting facts from an unrelated court proceeding. Similarly, the Alaska Evidence Rules commentary addresses evidentiary uses of a criminal judgment to establish the historical facts of underlying conduct, or to bar an issue through the use of collateral estoppel. The state here introduced evidence that Hess had sexually assaulted AR. in order to show his "subjective awareness of [H.W.'s] response to the sexual activity which [was] taking place." The state explained that "lelvidence of Hess' prior sexual assaults is directly relevant.... Proof that Hess has [in the] past . disregarded the lack of consent expressed by his sexual partners is highly probative evidence that in this case, Hess was willing to ignore the risk that H.W. had not given her consent...." Thus, as Hess asserted, the state intended to use evidence of his conduct with A.R. to prove his propensity to disregard H.W.'s alleged lack of consent. The acquittal was therefore more important for its bearing on the inference of propensity to be drawn in assessing his conduct with H.W. than for its bearing on the historical facts of his conduct with AR. True, the acquittal also implies that Hess did not sexually assault A.R. But rebutting evidence of a defendant's propensity to commit the present act differs from attempting to establish or challenge the defendant's actual prior conduct. Therefore, Spenard Action Committee, FT., and the Alaska Evidence Rules commentary did not make evidence of Hess's acquittal inadmissible. The state also cites several federal opinions to support its argument that the prior acquittal is inadmissible hearsay. But those cases address hearsay in terms of collateral estoppel, and do not present independent reasons for exclusion. As evidence of historical facts, evidence of what other jurors believed in a prior criminal case is unreliable. But the reliability problem does not exist when a defendant is not trying to establish historical facts, but merely the fact of the acquittal itself. The evidence reliably reflects the fact of acquittal. A court thus may take judicial notice of the fact of an acquittal under Alaska Rule of Evidence 201(b)(2), as implicitly requested here. Or it may allow evidence of the acquittal to be introduced as a hearsay exception under Alaska Rule of Evidence 803(8) because the acquittal is a matter of public record. 3. Was the evidence more prejudicial than probative? The superior court declined to inform the jury of Hess's prior acquittal partly because it reasoned that the jury would be confused. It was concerned about instructing the jury on the different proof standards. The A.R. jury applied the "beyond a reasonable doubt" standard in reaching its verdict, but the H.W. jury only had to apply the "preponderance" standard in deciding whether to accept A.R.'s prior-act testimony at the H.W. trial The court noted that it "expressed [its own] confusion there." The court also noted that if the acquittal were admitted into evidence, Hess's conviction of the lesser charge of sexual abuse of a minor would be admitted, creating more confusion. Hess argues that informing the jury of the acquittal would have been neither confusing nor misleading. He asserts that an acquittal is easily understood and has a clear meaning as a verdict of "not guilty." Hess also argues that informing the jury of his acquittal would alleviate the extreme prejudice of the propensity evidence, and that therefore its probative value outweighs any potential confusion. The state responds that the acquittal has limited, if any, probative value, and that the superior court minimized any risk of unfair prejudice caused by A.R.'s testimony by instructing the jury that A.R.'s testimony was relevant only to the issue whether the defendant recklessly disregarded H.W.'s lack of consent. Alaska Evidence Rule 403 permits a trial court to exclude relevant evidence if the danger of confusing the issues or misleading the jury outweighs its probative value. The admissibility of a prior acquittal has been held to be a matter within the trial court's discretion, and therefore a case-specific analysis is needed to compare the potential prejudice and probative value of the evidence. Most jurisdictions, including Alaska before the legislature enacted Rule 404(b)(8), have considered propensity evidence to be so prejudicial that they exclude it by rule. And prior acts of sexual assault were considered so prejudicial as evidence of propensity that they were previously "absolutely precluded" as evidence of a defendant's reckless disregard, despite their undoubted relevance. The legislature's 1994 policy determination that this evidence can be offered to rebut a defense of consent does not mean that its admission is no longer prejudicial. But the question is not whether A.R.'s testimony should have been excluded because it potentially prejudiced Hess. The question is whether any prejudice created by informing the jury of Hess's acquittal outweighs its probative value to Hess. The different verdicts in the AR. trial make Hess's acquittal particularly probative. The AR. jury acquitted Hess on the charge of first-degree sexual assault, but convicted him on the lesser alternative charge of first-degree sexual abuse of a minor. The guilty verdict meant that the jury found that Hess had sexually penetrated A.R. and that AR. was less than sixteen years old. A sexual assault conviction would have required the jury to find that Hess had knowingly sexually penetrated AR. with reckless disregard for her lack of consent. Although Hess denied penetrating AR., the A.R. jury must have disbelieved his denial because it conviet-ed him on the lesser alternative charge. Therefore, in acquitting him of first-degree sexual assault, the A.R. jury must have decided that the state failed to prove beyond a reasonable doubt either that Hess recklessly disregarded AR.'s lack of consent or that AR. did not consent to have sex with Hess. And it may have found that the state failed to prove both of those things. Thus, the peeu-liar cireumstances here make the acquittal on the sexual assault charge potentially useful in deciding whether Hess had a propensity to recklessly disregard a companion's wishes. The acquittal was therefore potentially useful in deciding whether he recklessly disregarded H.W.'s lack of consent. Evidence of a prior acquittal may cause confusion if the jury takes it as proof that the defendant is "innocent" of the prior charge, rather than as evidence that reasonable doubt existed as to at least one element of the acquitted charge. But a high risk of unfair prejudice may outweigh the risk of confusion, and a jury instruction explaining the requisite levels of proof may minimize the risk of confusion. Because we think that the acquittal had substantial probative value to Hess, that its exclusion hampered his ability to respond to A.R.'s propensity evidence testimony, and that any undue prejudice its admission would cause the state could be avoided or minimized by appropriate instructions, we conclude that it was error not to inform the jury of Hess's acquittal. 4. Did the error prejudice Hess? We will not reverse a conviction for an evidentiary error if the error is harmless. In Worthy v. State the superior court erred in excluding evidence under Alaska Evidence Rule 408. The excluded evidence challenged the truth of the complaining witness's allegation that another man had raped her on an earlier occasion. We reversed Worthy's conviction because the state made the complainant's testimony about the prior rape an "integral part of its case" against Worthy and because the excluded testimony "might have substantially affected the jury's verdict. Likewise, the state made A.R.'s testimony an "integral part" of its case against Hess in the H.W. case. In its opening argument the state asserted: [I]n rebuttal testimony a witness will be testifying, a young girl by the name of [A.R.]. She will be testifying about a non-consensual sexual encounter that she had with Mr. Hess in June of 1994 and how she too was in a situation where she was begging and erying for Ralph Hess not to have sex with her and that those cries, as [H.W.'s] cries, were ignored. The only issue before you can be summed up in one word, consent. The state referred to A.R.'s testimony three times in its closing argument: And last but certainly not least, ladies and gentlemen, don't forget the testimony of [A.R.] when you're thinking about this man's ability to disregard completely what a woman is trying to communicate to him. [AR.] testified clearly about what she went through at the hands of Ralph Hess. Trying to pull her shorts up, trying to cry, trying to tell him to stop, begging him to stop, going to a bedroom to get away from him. Trying to hold her legs together while he's trying to pry them apart. With him trying to stick his penis into her vagina while she's squirming and trying to get away from him. None of this, ladies and gentlemen, mean[s] a thing to this man. This man regards the consent of the women he has sex with as . completely irrelevant. When you're thinking about this, think about [A.R.]. Mr. Holmes asked you to ignore [A.R.] Well he would like to have you ignore [A.R.], Ralph Hess would like to have you ignore [A.R.]. But you can't ignore [AR.] because [A.R.] corroborates what [H.W.] told you about what happened in that Bronco and how Ralph Hess recklessly disregarded her lack of consent. [The defendant's attorney] says we don't have other evidence . of what happened. Wrong, we have direct evidence because [A.R.] provides that direct evidence of how Mr. Hess handles himself in situations similar to that in which [H.W.] found herself on the morning of October 9th, 1994. Recklessly disregards lack of consent. That's what AR. told you, that's direct evidence that you are entitled to rely upon and I urge you to rely on it in this case. [Hess is] [slomeone we know [who] will come in and recklessly disregard a woman's lack of consent. Use of force to remove clothes, spread legs, to insert his penis into the vagina of unfortunate vice-tims who he's raped. The state relied on A.R.'s testimony and made it an important part of its case at the second trial. The state argued that the only issue was H.W.'s lack of consent; to establish Hess's reckless disregard for H.W.'s lack of consent, the state relied on A.R.'s testimony that A.R. did not consent. And it urged the jury to do the same. But if the second jury had known that the first jury had reasonable doubt about whether Hess recklessly disregarded AR.'s lack of consent or whether AR. did not consent, the second jury might also have had reasonable doubt about whether Hess recklessly disregarded H.W.'s wishes. The error may have substantially affected the verdict. Because we cannot say that the error was harmless, exclusion requires reversal of Hess's conviction and remand for retrial. IV. CONCLUSION For these reasons, we REVERSE Hess's conviction and REMAND for a new trial . See Hess v. State, Mem. Op. & J. No. 3906 at 21 (Alaska App., November 4, 1998). . Id. at 15. . Id. at 15-16. . See id. . Id. at 16. . See Smithart v. State, 988 P.2d 583, 586 (Alaska 1999). . Id. (quoting Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979)). . See M.R.S. v. State, 897 P.2d 63, 66 (Alaska 1995). . See AS 11.41.410(a)(1); Velez v. State, 762 P.2d 1297, 1303 (Alaska App.1988). . See Velez, 762 P.2d at 1303-05. . See ch. 116, § 2, SLA 1994, amended by ch. 63, § 22, SLA 1997; ch. 86, § 18, SLA 1998. . Fed.R.Evid. 413(a). . See 1 John W. Strong, ed., McCormick on Evidence § 190, at 669-70 (5th ed.1999) [hereinafter McCormick on Evidence] (Unlike the other purposes for other-crimes evidence, the sex-crime exception [in Rule 413] flaunts the general prohibition of evidence whose only purpose is to invite the inference that a defendant who com-milted a previous crime is disposed toward committing crimes, and therefore is more likely to have committed the one at bar."); see also Roger C. Park, The Crime Bill of 1994 and the Law of Character Evidence: Congress Was Right About Consent Defense Cases, 22 Fordham Urb. LJ. 271, 272 (1995) ("Common sense tells us that evidence of propensity to rape has probative value."). . The issue here therefore differs from that in Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990), which Hess's brief discusses at length. There the question was whether it was error to admit, over Dowling's objection, a witness's testimony that Dowling had, while armed with a handgun and wearing a mask, entered the witness's home some weeks before an armed, masked man committed the bank robbery for which Dowling was being tried. See id. at 343-45, 110 S.Ct. 668. The Supreme Court considered whether the woman's testimony was admissible, given that Dowling had been acquitted of the charges that resulted from his entry into her home and concluded that the testimony was admissible. See id. at 347-54, 110 S.Ct. 668. Here, however, the issue is not whether A.R.'s testimony about an earlier assault was admissible, but whether, after A.R. testified, Hess should have been allowed to offer evidence that he had been acquitted of sexually assaulting AR. . See Alaska R.Evid. 402. . Alaska R.Evid. 401. . See, e.g., United States v. De La Rosa, 171 F.3d 215, 219 (5th Cir.1999); United States v. Marrero-Ortiz, 160 F.3d 768, 775 (1st Cir.1998); State v. Tolman, 121 Idaho 899, 828 P.2d 1304, 1311 (1992); Eatherton v. State, 810 P.2d 93, 100-01 (Wyo.1991). . See De La Rosa, 171 F.3d at 219. . See People v. Griffin, 66 Cal.2d 459, 58 Cal.Rptr. 107, 426 P.2d 507, 510 (1967) (stating that 'the better rule allows proof of an acquittal to weaken and rebut the prosecution's evidence of the other crime"); Nolan v. State, 213 Md. 298, 131 A.2d 851, 857 (1957) (holding that prior acquittal was admissible for sole purpose of affecting weight of evidence against accused). . See Griffin, 58 Cal.Rptr. 107, 426 P.2d at 511 n. 3 {stating that evidence of acquittal is not as convincing of innocence as judgment of conviction is convincing of guilt, but that fact goes to weight not admissibility of evidence). . See Alaska R.Evid. 401. . 1 McCormick on Evidence, supra note 13, § 185, at 642-43. . See Hess v. State, Mem. Op. & J. No. 3906 at 16-20 (Alaska App., November 4, 1998). . Alaska R.Evid. 801(c). . See 2 McCormick on Evidence, supra note 13, § 249, at 100. . See id. . See De La Rosa, 171 F.3d at 219. . 902 P.2d 766 (Alaska 1995), cited in Hess v. State, Mem. Op. & J. No. 3906 at 16. . See Spenard Action Comm., 902 P.2d at 780. Unlike the Federal Rules of Evidence, the Alaska Rules of Evidence do not contain a hearsay exception for criminal convictions. Compare Alaska R.Evid. 803 with Fed.R.Evid. 803(22). . Alaska R.Evid. 803 commentary at 571 (2000). . 862 P.2d 857 (Alaska 1993). . See id. at 863-64. . See id. at 864. . See Spenard Action Comm., 902 P.2d at 778. Although couched in hearsay terms, we note that this issue is virtually the same as the relevance issue discussed in Part II.B. . See De La Rosa, 171 F.3d at 219; United States v. Thomas, 114 F.3d 228, 249-50 (D.C.Cir.1997); Prince v. Lockhart, 971 F.2d 118, 122 (8th Cir.1992); United States v. Jones, 808 F.2d 561, 566-67 (7th Cir.1986); United States v. Viserto, 596 F.2d 531, 536-37 (2d Cir.1979). . See De La Rosa, 171 F.3d at 219; cf. Spenard Action Comm., 902 P.2d at 780 (holding that criminal conviction of non-party as evidence of fact inadmissible). . See Griffin, 58 Cal.Rptr. 107, 426 P.2d at 510-11. . The superior court gave the following instruction to the jury after A.R. testified: You the jury may not consider this evidence of prior sexual assault unless you reasonably conclude (1) that the act occurred and (2) the defendant was the actor. If you so conclude then you are to determine what weight, if any, to give to this evidence. You are specifically instructed that this evidence shall only be considered for the purposes for which it is admitted. It is relevant only as to whether the defendant recklessly disregarded H.W.'s lack of consent. . See, e.g., Eatherton, 810 P.2d at 100-01 (holding that introduction of acquiital is within sound discretion of trial judge, based on finding of relevance and following probative/prejudicial balancing test); Griffin, 58 Cal.Rptr. 107, 426 P.2d at 510-11 (holding that acquittal was relevant, not hearsay, and more probative than prejudicial "by assisting the jury in its assessment of the significance of the evidence of another crime with the knowledge that at another time and place a duly constituted tribunal . concluded that [the defendant] was not guilty"). . See, e.g., former Alaska R.Evid. 404(a) & (b) (1993). . See Velez, 762 P.2d at 1303-04. . See ch. 116, § 2, SLA 1994, amended by ch. 63, § 22, SLA 1997; ch. 86, 18, SLA 1998. . See AS 11.41.410(a)(1). . See AS 11.41.434(a)(3). . See id. . See AS 11.41.410(a)(1); Velez, 762 P.2d at 1303. . See Eatherton, 810 P.2d at 100-01 (holding that refusal to allow evidence of prior acquittal of sexual assault not abuse of discretion because it could have misled jury and confused issues; defendant failed to argue how trial court abused its discretion). . See State v. Smith, 271 Or. 294, 532 P.2d 9, 11-12 (1975). . See, e.g., Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). . See Alaska R.Civ.P. 61 ("No error in cither the admission or the exclusion of evidence . is ground for granting a new trial or for setting aside a verdict . unless refusal to take such action appears to the court inconsistent with substantial justice."); see also Worthy v. State, 999 P.2d 771, 775 (Alaska 2000) (holding refusal to allow testimony on alleged falsity of victim's prior accusation of rape reversible error when state relied on prior accusation as central part of its case). . 999 P.2d 771 (Alaska 2000). . See id. at 773. . Id. at 775. . Having ruled that it was error to refuse to inform the jury of the prior acquittal, we need not consider Hess's alternative argument that the acquittal should have been introduced "to avoid unconstitutional fundamental unfairness."

10354021

Marie EVANS, Appellant, v. Don EVANS, Appellee

Evans v. Evans

1994-03-11

No. S-5818

478

483

869 P.2d 478

869

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:40:58.497062+00:00

CAP

Before MOORE, C.J., RABINOWITZ, MATTHEWS and COMPTON, JJ., and BRYNER, J. Pro Tem.

Marie EVANS, Appellant, v. Don EVANS, Appellee.

Marie EVANS, Appellant, v. Don EVANS, Appellee. No. S-5818. Supreme Court of Alaska. March 11, 1994. Julie A. Smith, Law Office of Teresa L. Brimner, Fairbanks, for appellant. Christopher E. Zimmerman, Call Barrett & Burbank, Fairbanks, for appellee. Before MOORE, C.J., RABINOWITZ, MATTHEWS and COMPTON, JJ., and BRYNER, J. Pro Tem. Sitting by assignment made under article IV, section 16 of the Alaska Constitution.

3261

20324

OPINION BRYNER, Justice Pro Tem. This appeal arises from a divorce proceeding between Marie and Don Evans in which the superior court awarded Don primary physical custody of the Evans' two children, Jon Paul and Portia. On appeal, Marie challenges the custody order. We affirm. I. BACKGROUND Marie and Don were married on November 24, 1984. Marie had a son from a previous marriage, Jon Paul, who was born on November 9, 1980. Don adopted Jon Paul in 1986. The parties had a second child, Portia, who was born on September 8, 1985. The parties separated in June 1992, and Don filed for divorce on August 20,1992. Both parties requested primary physical custody of the children, although both agreed that shared legal custody was appropriate. At the time of trial, Marie was engaged to be married to Sergeant Roger Hare, who was stationed at Eielson Air Force Base near Fairbanks and had two children of his own from a prior marriage. On March 22-25,1993, the issue of custody was tried before the superior court. Don and Marie testified and presented various witnesses. Don called on his mother, Violet Evans, and two friends, Gary and Barbara Pitsenberger, to testify in support of his request for custody. Marie called her fiance, Roger Hare, and a friend, Stephanie Stow-man, to testify on her behalf. Additionally, Marie presented testimony from the court-appointed child-custody investigator, Barry Levit, and the children's school counselor, Valerie Demming. After considering the evidence presented at trial, the superior court found Don and Marie equally capable of providing for the best interests of the children under the statutory criteria specified in AS 25.24.150(c). The court went on to find, however, that the children would benefit from continuing to live in the family residence, which Don had retained, and from avoiding the potential stress of adjusting to a new family setting involving two other children. Concluding that these factors tipped the balance in Don's favor, the court gave Don primary physical custody of both children during the school year and Marie primary physical custody during the summer months. II. DISCUSSION Marie appeals the custody order, arguing that the superior court's ruling was unsupported by the evidence and was based on the court's consideration of impermissible factors. A. Standard of Review The trial court is vested with broad discretion in child custody decisions. Gratrix v. Gratrix, 652 P.2d 76, 79 (Alaska 1982). Its determination of custody will not be set aside unless the record demonstrates that controlling findings of fact are clearly erroneous or that the trial court abused its discretion. Zimin v. Zimin, 837 P.2d 118, 123 n. 10 (Alaska 1992); Farrell v. Farrell, 819 P.2d 896, 898 (Alaska 1991). A finding of fact is clearly erroneous only when a review of the entire record leaves us with a definite and firm conviction that the trial court has made a mistake. Money v. Money, 852 P.2d 1158, 1161 (Alaska 1993). An abuse of discretion has oc curred if the trial court considered improper factors in making its custody determination, failed to consider statutorily mandated factors, or assigned disproportionate weight to particular factors while ignoring others. McDanold v. McDanold, 718 P.2d 467, 468 (Alaska 1986). B. Trial Court's Finding that Don and Marie Were Equally Qualified under the Statutorily Specified Factors The factors to be considered by the trial court in determining custody are set forth in AS 25.24.160(e); this statute lists eight specific factors that the court must consider in each case and, in addition, authorizes the court to consider any other factors it deems pertinent: (c) The court shall determine custody in accordance with the best interests of the child_ In determining the best interests of the child the court shall consider (1) the physical, emotional, mental, religious, and social needs of the child; (2) the capability and desire of each parent to meet these needs; (3) the child's preference if the child is of sufficient age and capacity to form a preference; (4) the love and affection existing between the child and each parent; (5) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity; (6) the desire and ability of each parent to allow an open and loving frequent relationship between the child and the other parent; (7) any evidence of domestic violence, child abuse, or child neglect in the proposed custodial household or a history of violence between the parents; (8) evidence that substance abuse by either parent or other members of the household directly affects the emotional or physical well being of the child; (9)other factors that the court considers pertinent. In the present case, Marie first claims that the evidence fails to support the superior court's finding that, under the eight specific factors listed in the statute, she and Don were equally capable of providing for the best interests of the children. Specifically, Marie asserts that the witnesses supporting Don's request for primary physical custody, Don's mother and the Pitsenbergers, were biased in his favor, whereas the unbiased expert testimony of the child custody investigator, Levit, and the school counselor, Dem-ming, favored her own custody request. Marie argues that the superior court was clearly erroneous in failing to accept the testimony of the "neutral" experts over other "biased" witnesses. Marie's argument, however, tacitly relies on two assumptions: that the trial court must accept expert testimony at face value whenever it has not been contradicted by opposing expert testimony and that the court is inflexibly required to accord more credit to an ostensibly objective witness than to one who arguably has reason to be biased. Both assumptions are incorrect. In addressing the statutory criteria for determining the best interests of a child, the trial court must decide matters of credibility on a case-by-case basis, "considering] all the relevant circumstances including the demeanor of the witnesses and conflicting testimony." McDanold, 718 P.2d at 469. In evaluating the relative credibility of witnesses, the court ordinarily has no obligation to accept expert testimony when it finds other evidence more persuasive; nor is the court bound to favor the testimony of an ostensibly neutral witness who is unconvincing over that of a witness who testifies convincingly despite circumstances suggesting potential bias. As this court has previously held, "great weight must be accorded to the trial judge's experience and . evaluation of the demeanor testimony." Sheridan v. Sheridan, 466 P.2d 821, 824 (Alaska 1970). When the trial judge's decision is dependent largely upon oral testimony of the witnesses seen and heard at trial, this court must give due regard to the trial judge's opportunity to judge the credibility of those witnesses. Parker v. Northern Mixing Co., 756 P.2d 881, 892 (Alaska 1988) (holding that "it is the function of the trial court, not of this court, to judge witnesses' credibility and to weigh conflicting evidence"); Kenai Power Corp. v. Strandberg, 415 P.2d 659, 660 (Alaska 1966). Our review of the record convinces us that, although the trial court heard conflicting testimony on several issues, substantial evidence was presented at trial to allow the court to find that both Don and Marie were fully capable of providing for the emotional and physical needs of their children and that, under the specific criteria listed in AS 24.25.-150(e), both were equally suited to act as the children's primary custodians. This court's role of appellate review does not entail an independent balancing of the conflicting evidence presented below. The trial judge was in the best position to evaluate the witnesses' credibility and their testimony. The trial judge's findings of fact indicate that he fully considered the totality of the evidence, ultimately concluding that Don and Marie were similarly situated with respect to the statutorily specified factors for determining custody. Those findings are not clearly erroneous. C. Trial Court's Consideration of -Purportedly Improper Factors Marie next contends that, even if the evidence was sufficient to support the trial court's finding that she and Don would be equally capable of providing for the children's needs under the criteria set out in AS 25.24.150(c), the court erred in relying on impermissible non-statutory factors to tip the balance in Don's favor. In its findings of fact and conclusions of law, the trial court stated: The Court finds, based upon the facts and statutory factors as listed above, that the primary physical custody of the children during the school year should be vested in [Don]. The Court makes this finding based upon two primary factors. The first of these is that the children will remain residing in the family residence. The second and more important factor is that [Marie] has remarried a military man and has moved into a home where there are two other children. The Court finds that, all other factors being fairly equal, the fact that the children would be moving into a situation where they would have to adjust to two other children tips the scale in favor of primary physical custody being with the father during the school year. Marie argues that the trial court abused its discretion in basing its decision on these two factors. She points out that, among the eight specific factors that must be addressed in determining the best interests of a child under AS 25.24.150(c), factor (c)(5) requires the court to consider "the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity." Marie reasons that the trial court's reliance on the desirability of allowing the children to remain in the family dwelling and on the undesirability of forcing them to adjust to a new family setting was tantamount to considering the parties' ability to provide the children with "a stable, satisfactory environment," as provided for under factor (c)(5). Marie argues that, because the trial court had already determined that she and Don were equally situated with respect to factor (c)(5), its subsequent reliance on essentially the same factor to support awarding custody to Don was contradictory. We agree with Marie that the desirability of keeping the Evans children in the family residence and the undesirability of requiring them to adjust to a new family setting were factors that the trial court could properly have considered in addressing AS 25.24.-150(e)(5). See, e.g., Craig v. McBride, 639 P.2d 303, 305 (Alaska 1982). The record nevertheless reveals that the court did not actually address these issues when it addressed factor (c)(5). Regarding this statutory factor, the court found: Since the separation the children have been in a stable and satisfactory environment fifty percent of the time in each parent's homes and thus the Court finds there is nothing to discriminate between the parties in regard to this factor. The parties believe and the Court finds that it is important to provide some stability in the children's living situation. The trial court's finding makes it clear that, in addressing factor (c)(5), the court focused on the narrow question of Don's and Marie's respective abilities to maintain stable and satisfactory relations between themselves and the children following separation. It was only in this narrow respect, the stability of the children's environment in relation to each parent, that the trial court purported to find Don and Marie equally situated under factor (c)(5). Upon later returning to the issue of stability, the court broadened its consideration to encompass the children's more general needs for stability in their overall living environment; the court evaluated the children's needs, not just in relation to each parent, but in relation to the totality of the circumstances they were likely to encounter in their respective parents' homes. In this context, the court's reliance on the desirability of the children's continued placement with Don in the family residence, and on the undesirability of forcing their adjustment to a new family setting with Marie neither duplicated nor contradicted the court's prior determination of relative equality under factor (c)(5). The fact that the trial court could have taken account of the children's overall stability in addressing factor (c)(5), but did not actually do so, had no bearing on the validity of the court's ultimate decision in this case, since the court could and did properly consider the same circumstances under paragraph (c)(9) of AS 25.24.150(c). This paragraph vested the court with broad authority to address, in addition to the specific factors articulated in paragraphs (c)(1) through (c)(8), all "other factors that the court consider[ed] pertinent." As we have emphasized in previous cases, a trial court's determination of the best interests of a child in an initial custody proceeding should be based on "all relevant factors including those enumerated in AS 25.24.150(c)." McDanold v. McDanold, 718 P.2d at 469 (quoting McClain v. McClain, 716 P.2d 381 (Alaska 1986)). As long as the record establishes, as it does here, that the trial court did in fact properly consider "all relevant factors," the specific statutory rubric the court invoked in the course of its consideration is inconsequential. Marie further argues, however, that the trial court abused its discretion in deeming the children's ability to remain in the family residence to be a pivotal factor in awarding custody. Marie points out that Don was awarded custody of the house because it had belonged to him before the marriage. Marie claims that, because Don was awarded the house as a result of circumstances that were beyond her control and that were unrelated to Don's ability to be a competent parent, the court should not have been allowed to make Don's occupancy of the home play a decisive role in awarding custody. In support of this argument, Marie cites Craig v. McBride, 639 P.2d 303 (Alaska 1982). Yet that case actually defeats Marie's argument. In Craig, we held that the trial court, in assessing the relative stability of the parties under AS 24.25.150(c)(5), could properly consider the fact that the father had lived in the same town for many years, earning broad community respect, as well as "the fact that the mother had only recently attempted to create a stable home environment." Id. at 305. To the extent Craig has a bearing on the present case, it indicates that the trial court acted properly in considering, as a factor in awarding custody, the added stability the Evans children would enjoy if they remained in the family residence. Nor do we perceive any other ground for concluding that the trial court acted imper-missibly in basing its determination of custody on the two non-statutory factors at issue here — the added stability the Evans children might gain from continuing to live in their family residence and the potential instability they might suffer from being uprooted immediately following the divorce. Contrary to Marie's arguments on appeal, the court did not give these factors disproportionate significance over other relevant factors; rather, it emphasized that they were determinative only because the parties were equally qualified to have custody of the children in all other respects. Furthermore, the prominent role the court assigned to these factors does not, as Marie contends, reflect the court's reliance on the questionable assumption that children whose parents divorce should generally remain in the family residence; instead, the court's decision appears to have been based on case-specific evidence demonstrating Jon Paul's and Portia's actual need for physical and emotional continuity and stability in their overall living situation. Under the circumstances of the present case, the trial court did not abuse its discretion in considering the potentially undesirable emotional consequences that Jon Paul and Portia might have suffered had they been required to adjust to the changed family environment of Marie's new marital residence. III. CONCLUSION We conclude that the trial court did not abuse its discretion in awarding primary physical custody of the children to Don. Accordingly, we AFFIRM the judgment entered below. . The court also awarded the parties shared legal custody of the children and provided for generous visitation rights to each parent during periods of non-primary custody. These aspects of the custody order are not in dispute. . Cf. Dolchok v. State, 639 P.2d 277, 281 (Alaska 1982) (recognizing that, despite "uniform psychiatric testimony" indicating that the defendant was not guilty by reason of insanity, the "ancil-Iary factual matters in [the defendant's] confession provided a sufficient evidentiary basis" to support the defendant's conviction). . The trial court's findings on this point were supported by the testimony of both the school counselor and the child custody investigator. The child custody investigator, Levit, testified that moving into a new home with two other children would not necessarily result in instability for Jon Paul and Portia, however, "there need[ed] to be blending, . a meshing of everybody, an understanding, a creation of relationships that work." The school counselor, Dem-ming, testified that moving into a new home with two other children would be "another change that Jon Paul and Portia have to . deal with and to . figure out where they are in the family and which place they have, . in communication with the new stepdad." . In connection with this issue, Marie raises several peripheral arguments that require only brief attention. Marie argues that the trial court abused its discretion by focusing on the physical stability of the children rather than on their emotional needs in determining which additional factors it considered pertinent. Our review of the record, however, convinces us that the trial court's determination was based on a thorough evaluation of the children's physical and emotional needs. Marie also asserts that the court should have given her preference in view of her "status as primaty caregiver of the children." We have never adopted a rule giving custodial preference to the primary caregiver. At least one commentator has suggested that such a preference is no more desirable than the now discredited tender years doctrine which gave custodial preference to the mother of young children. 2 Clark, The Law of Domestic Relations in the United States, § 20.4(b) pp. 491-501 (West Pub.1987). Given Marie's failure to assert the issue below and the conflicting testimony as to whether Marie had in fact been the childrens' primary caregiver, we decline to address Marie's argument for a primary caregiver preference. Finally, Marie relies on this court's holding in Lowdermilk v. Lowdermilk, 825 P.2d 874 (Alaska 1992), to argue that the trial court failed to adequately explain how the two non-statutory factors it relied on had any actual bearing on Don's and Marie's ability to provide for the best interests of their children. In Lowdermilk, this court held that it was improper for the trial court to consider that the mother "[did] not see the world as the average person sees it" without any explanation of what the statement meant or how the factor related to the issue of parenting ability. Id. at 879. Here, by contrast, the trial court explained that the two additional factors it deemed determinative — continuing to live in the marital home and not moving in to a home which had two other children — affected Jon Paul's and Portia's ability to adjust to the divorce and their emotional stability. We find no violation of Lowdermilk.

10426767

STEWART-SMITH HAIDINGER, INC., "Certain British Insurance Companies", more particularly designated as Excess Insurance Co., Ltd., Phoenix Assurance Co., Ltd., Phoenix Assurance Co., (Compagnie D'Assurances Maritimes Aeriennes & Terrestres Societe Anonyme [Camat] Per Westminster Aviation Insurance Co., Ltd., Threadneedle Insurance Co., Ltd., Trident Insurance Co., Ltd., Scottish Lion Insurance Co., Ltd., Mentor Insurance Company [U.K.] Ltd., Per Mentor Underwriting Agency [U.K.], Ltd., Appellants, v. AVI-TRUCK, INC., Loretta W. Coward, a/k/a Lori Coward, individually and as personal representative of the estate of Bob D. Coward, deceased, Robert S. Murnan, and Kiku Murnan, Appellees

Stewart-Smith Haidinger, Inc. v. Avi-Truck, Inc.

1984-03-30

No. 6796

1108

1119

682 P.2d 1108

682

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:41:21.126759+00:00

CAP

Before BURKE, C.J., and RABINOW-ITZ, MATTHEWS, COMPTON 'and MOORE, JJ.

STEWART-SMITH HAIDINGER, INC., “Certain British Insurance Companies”, more particularly designated as Excess Insurance Co., Ltd., Phoenix Assurance Co., Ltd., Phoenix Assurance Co., (Compagnie D’Assurances Maritimes Aeriennes & Terrestres Societe Anonyme [Camat] Per Westminster Aviation Insurance Co., Ltd., Threadneedle Insurance Co., Ltd., Trident Insurance Co., Ltd., Scottish Lion Insurance Co., Ltd., Mentor Insurance Company [U.K.] Ltd., Per Mentor Underwriting Agency [U.K.], Ltd., Appellants, v. AVI-TRUCK, INC., Loretta W. Coward, a/k/a Lori Coward, individually and as personal representative of the estate of Bob D. Coward, deceased, Robert S. Murnan, and Kiku Murnan, Appellees.

STEWART-SMITH HAIDINGER, INC., “Certain British Insurance Companies”, more particularly designated as Excess Insurance Co., Ltd., Phoenix Assurance Co., Ltd., Phoenix Assurance Co., (Compagnie D’Assurances Maritimes Aeriennes & Terrestres Societe Anonyme [Camat] Per Westminster Aviation Insurance Co., Ltd., Threadneedle Insurance Co., Ltd., Trident Insurance Co., Ltd., Scottish Lion Insurance Co., Ltd., Mentor Insurance Company [U.K.] Ltd., Per Mentor Underwriting Agency [U.K.], Ltd., Appellants, v. AVI-TRUCK, INC., Loretta W. Coward, a/k/a Lori Coward, individually and as personal representative of the estate of Bob D. Coward, deceased, Robert S. Murnan, and Kiku Murnan, Appellees. No. 6796. Supreme Court of Alaska. March 30, 1984. Sanford M. Gibbs, Hagans, Brown & Gibbs, Anchorage, for appellants. Roger W. DuBrock, Roberts & Shefel-man, Anchorage, for appellees. Before BURKE, C.J., and RABINOW-ITZ, MATTHEWS, COMPTON 'and MOORE, JJ.

6537

40667

OPINION COMPTON, Justice. This is an appeal from an award of $60,-000.00 on an aircraft hull insurance policy to Appellees, Avi-Truck, Inc., and its owners, Loretta W. Coward, Robert S. Murnan and Kiku Murnan (jointly referred to as "Avi-Truck"). The hull claim arose out of the total loss of a Chase YC-122 aircraft on January 31, 1977, when it crashed following takeoff from Anchorage International Airport. The insurer, Stewart-Smith Haid-inger, Inc. and "certain British insurance companies" (jointly referred to as "Stewart-Smith") challenge the award, claiming that certain exclusions in the policy avoided coverage and that, in any event, Avi-Truck does not have standing to sue because it is not a named insured in the insurance contract. For the reasons set forth below, we affirm the award. I. FACTUAL AND PROCEDURAL BACKGROUND In 1976, Trans-Northern Aleutian, Inc. ("TNA") was an air transport company which operated a fleet of small aircraft. TNA, which was looking for a larger aircraft to use for moving large equipment, first became interested in the YC-122 in the summer of 1976. The YC-122 was a twin-engine, multi-crew surplus military aircraft, one of the few of its kind built sometime during the late 1940s or early 1950s. Robert Murnan, the chief mechanic for TNA, and Dick Clawson, a pilot working for TNA, ferried the plane from Palmer to Anchorage in early December, 1976. Although TNA had initially considered purchasing the YC-122, after the plane reached Anchorage TNA decided it would lease the aircraft instead. Murnan and Bob Coward, another mechanic for TNA, and their wives decided to purchase the aircraft, and formed Avi-Truck, Inc. in order to do so. They purchased the aircraft on December 29, 1976 and leased it to TNA on January 14, 1977. The lease agreement included a clause requiring TNA to insure the hull of the aircraft for $60,000.00. TNA's president, Lloyd Sudder, obtained the insurance for the YC-122 through Jack Good, an employee of Frank B. Hall and Company, an insurance brokerage. Sudder contacted Good about insuring the plane before the ferry flight and discussed the insurance with him several times thereafter. The parties dispute what information Sudder gave to Good concerning the aircraft. It is undisputed that Good was told the make and model of the YC-122 and that it would be used only for carrying cargo. Good went to the TNA offices to look at the plane and was aware that it was significantly larger and older than the other aircraft that he insured for TNA and the only one that would not be carrying passengers as well as cargo. It is also undisputed that the question of whether the YC-122 had an airworthiness certificate was never discussed. Good incorrectly assumed that the YC-122 had an airworthiness certificate. What is in. dispute is whether Sudder told Good that the aircraft would be used as a "public use" aircraft, i.e., one that is restricted to transporting government cargo, and that it was an ex-military aircraft. The significance of this information is that, as a practical matter, an airworthiness certificate could not have been obtained for the YC-122 for carrying private cargo for hire. Without this certificate, the aircraft could only be legally used for carrying government cargo. Furthermore, after talking with FAA employees, TNA believed that certain regulations concerning pilot qualifications would not apply to public use aircraft. The parties also dispute whether Good was told that TNA did not own the plane. Although Sudder testified that he told Good that TNA would be leasing the aircraft, Good assumed TNA owned it. Avi-Truck was not named on the policy. Good ordered insurance through John Chapman, a representative of the insurer, Stewart-Smith Haidinger, Inc. Chapman could act as an underwriter and bind certain London carriers under his "in-house" authority, or he could act as a broker and forward the risk to the London market through a London broker. After investigating the airworthiness of the YC-122, Chapman decided to do the latter, because of the aircraft's age and because he was "suspicious" of a plane he had never heard of. Good issued a binder on December 13, 1976, which provided coverage for the ferry flight from Palmer to Anchorage and then ground coverage until the plane's first flight. Flight coverage was added on January 24, 1977. The binder provided that the plane would be used for carrying freight for hire and would be flown by pilots with specified qualifications. Although the binder indicated that a new policy of insurance would be issued to cover the YC-122, the coverage was effected by adding the aircraft to an existing hull insurance policy covering other aircraft operated by TNA. The endorsement adding the YC-122 to the fleet policy was not issued until February 8, 1977, one week after the aircraft crashed. The YC-122 crashed on its second flight while carrying school supplies for the Bureau of Indian Affairs. Stewart-Smith disclaimed liability based on several exclusions in the policy. The underlying action was commenced by Alaska Statebank, which sued Avi-Truck in order to collect on a loan that Avi-Truck had obtained to purchase the YC-122. Avi-Truck filed a third-party complaint against Frank B. Hall and the insurers, alleging that it was entitled to the proceeds of the TNA insurance policy. Various cross-motions for partial summary judgment were filed, and on June 5, 1980, Judge Singleton entered an "Order for Partial Summary Judgment and to Simplify Issues." That order included conclusions both that Avi-Truck had standing to sue even though it was not a named insured on the policy, and that exclusion (c) of the policy, which required an airworthiness certificate to be "in full force and effect," would not avoid coverage, even though the aircraft had no airworthiness certificate. Stewart-Smith challenges these two conclusions on appeal. The case went to trial on July 20, 1981. After five days of testimony Judge Souter ruled that coverage for the loss of the YC-122 existed. "Final Judgment as to Fewer than All Claims and Parties" was entered, awarding Avi-Truck $60,000.00, the amount of the hull coverage policy. In making the award the trial court found that the aircraft's pilot's lack of proper "type rating" did not justify avoiding liability under the policy, since TNA had been informed by the FAA that its pilots could legally fly a public use aircraft. Stewart-Smith challenges this finding and claims that the testimony by TNA employees as to statements made by FAA employees should have been excluded as hearsay. II. AVI-TRUCK'S STANDING TO SUE In its 1980 Order of Partial Summary Judgment, the trial court held that Avi-Truck had standing to sue the insurers under TNA's insurance contract. The court based its holding on a finding that: [T]he third party plaintiffs were within the class of persons contemplated to be covered by insurance at the time the insurance contract was negotiated, i.e. within the class of owners and operators of the aircraft. The court further finds that the persons contemplated to operate the aircraft, the pilots contemplated to fly it, and the persons contemplated to service the aircraft, remained unchanged at all times during the negotiation of coverage and thereafter, and that the risk to the carriers was not effected [sic] by ultimate ownership of the aircraft being placed in Avi-Truck, Inc. It therefore concluded that Avi-Truck had standing to sue the insurers as a third-party beneficiary to the insurance contract. Stewart-Smith contends that the trial court's conclusion that Avi-Truck had standing to sue as a third-party beneficiary was both legally and factually erroneous. It argues that a third-party beneficiary contract can exist only if both parties intended to benefit a third party at the time the contract was negotiated. It claims that Avi-Truck therefore cannot be a third-party beneficiary to the insurance contract because (a) it was not named in the contract, (b) Stewart-Smith was not aware of Avi-Truck's existence until after the accident, and (c) Avi-Truck did not even exist when the contract was initially negotiated. It also claims that the risk it undertook would be increased by the addition of Avi-Truck as a beneficiary. Stewart-Smith's claim that the insurance contract was not technically a third-party beneficiary contract is correct. Before a third party right in a contract will be recognized, the parties to the contract must intend that at least one purpose of the contract is to benefit a third party. State v. Osborne, 607 P.2d 369, 371 (Alaska 1980). Since Avi-Truck did not exist when the contract was initially negotiated, we cannot find that the parties specifically intended that Avi-Truck would benefit from it. We therefore cannot imply a third-party beneficiary contract from the facts of this case. However, the trial court's findings do not indicate that the insurance contract was, on its face, intended to benefit Avi-Truck. Rather, the court concluded that, under the special circumstances of this case, a third-party beneficiary contract should be implied at law. We find considerable support in our cases and in those of other jurisdictions for the trial court's position. In a recent line of cases, we have held that an unnamed party may have rights as an implied beneficiary of an insurance contract. In Alaska Insurance Co. v. RCA Alaska Communications, 623 P.2d 1216 (Alaska 1981), we held that, where a landlord obtains fire insurance in accordance with a lease provision requiring him or her to do so, his or her tenant should be considered a co-insured, and cannot be sued for negligence under a subrogation claim by the insurer. In Olympic, Inc. v. Providence Washington Insurance Co., 648 P.2d 1008 (Alaska 1982), we refused to apply RCA's "implied insured doctrine" in a case where a lease provision required the lessee to obtain liability insurance on the lessor's behalf, but where the lessee obtained the insurance in his name only. We noted that: The dispositive distinction between the present case and RCA is that in RCA the insurer seeking subrogation had contractually agreed to insure against loss due to fire.... It is from that context which we assessed the reasonable expectations of the parties with respect to fire loss due to the tenant's negligence. In contrast, . Providence did not contractually agree to insure against risks attributable to Olympic [the lessor]. Olympic, 648 P.2d at 1014. We thus held in Olympic that the risk the insurer undertook was determinative in deciding whether to imply additional insureds on an insurance policy. Although we have not previously held that an implied beneficiary may proceed directly against an insurance company for the proceeds of an insurance contract, courts of other jurisdictions have done so. In Farmers Insurance Exchange v. Nelson, 479 S.W.2d 717 (Tex.Civ.App.1972) a lessee insured himself as owner despite a lease provision requiring him to obtain insurance for the lessor. The court held that the lessor was entitled to a share of the insurance proceeds, and allowed him to proceed directly against the insurer, even though the insurer had been unaware of the lessor's existence until after the property was destroyed. Id. at 721. In Taylor v. Audubon Insurance Co., 357 So.2d 912, 914 (La.App.1978) a buyer/mortgagor was allowed to proceed against an insurer for his share of the proceeds of a policy maintained by the seller/mortgagee in her own name but paid for by the buyer. The court found that since the insurer had intended to insure the owner of the house, and since there was no evidence that it would not have insured the buyers as owners, the policy should be equitably reformed to include the buyers as beneficiaries. See also Lighting Fixture & Electric Supply Co. v. Continental Insurance Co., 420 F.2d 1211, 1214 (5th Cir.1969). In Farmers Insurance and Taylor, the requirement that the insured obtained coverage for the third party, combined with the insurer's intention to cover the owner of the insured property brought the third parties within the class of beneficiaries contemplated by the parties. In both cases the courts held, in effect, that persons within that class should be allowed to proceed directly against the insurer. We agree, and conclude that where the risk to the insurer is unchanged, and where a third party is within the class intended to be benefitted by the parties to an insurance contract, a third-party beneficiary insurance contract may be implied at law. We must now determine whether the undisputed evidence supports a holding that a third-party beneficiary contract should be implied in this case. Stewart-Smith contends that the trial court's findings as to the risks contemplated in the insurance contract and as to its intended class of beneficiaries were not supported by undisputed evidence. Stewart-Smith first argues that adding Avi-Truck as a beneficiary to the insurance contract would in fact alter the risk which the insurers originally agreed to undertake. It bases this contention on the fact that Avi-Truck retained the right to do maintenance on the aircraft and the fact that Avi-Truck, unlike TNA, was not a certificated carrier. In reality, however, regardless of who owned the aircraft, Bob Coward and Robert Murnan (who were both TNA mechanics and the principals in Avi-Truck), would have been maintaining it. Similarly, since TNA, rather than Avi-Truck, would be operating the plane, Avi-Truck's lack of certification appears irrelevant to Stewart-Smith's risk. Stewart-Smith has pointed to no other evidence which indicates that Avi-Truck's ownership of the plane altered its risk, and we find no reason to dispute the trial court's finding. Stewart-Smith also suggests that Avi-Truck was not within the class of beneficiaries contemplated by either party. It contends that, when insurance was bound in early December, TNA fully intended to insure itself as owner of the plane. This contention is not borne out by the evidence. TNA initially obtained insurance for the YC-122 to cover the ferry flight from Palmer to Anchorage. At that time, according to the uncontested testimony of Lloyd Sudder, TNA was merely "interested" in purchasing the plane. However, TNA apparently never directly negotiated with the plane's previous owners, nor did its board of directors ever authorize the purchase of the plane. From the time that Sudder initially contacted Jack Good for the purpose of discussing insurance until the Murnans and the Cowards decided to form Avi-Truck and purchase the airplane, TNA considered a number of options with respect to the plane, including purchasing it, leasing it, and lease-purchasing it. Several combinations of people associated with TNA (including a proposed partnership of Sudder, Coward and Murnan) also considered purchasing it. Avi-Truck actually purchased the YC-122 on December 29, 1976, and leased it to TNA on January 14, 1977. The lease included the following provision: Lessee agrees to provide all insurance on aircraft as follows: Hull insurance. $ 60,000.00 Liability. $1,000,000.00 with copies of declaration supplied to Lessor. An advance notice of 30 days will be given to Lessor prior to cancellation of any insurance coverage. Although this provision does not explicitly state that the insurance was to be obtained for the benefit of Avi-Truck, the testimony of Lloyd Sudder and Robert Murnan indicates that the parties to the lease intended that TNA should insure the plane on Avi-Truck's behalf. It is evident that, at the time the insurance was initially bound, TNA intended to insure the airplane for its own benefit or for the benefit of whoever eventually purchased it. Avi-Truck was within this class of potential owners of the aircraft. By the time flight insurance attached on January 24, 1977, TNA had obligated itself to insure the plane on Avi-Truck's behalf. Avi-Truck was thus clearly within the class of beneficiaries intended by TNA. It is also evident, as discussed above, that the risks and performance contemplated by the insurers were identical whether TNA or Avi-Truck owned the plane, and that Stewart-Smith intended to insure the interest of the owner of the plane. Avi-Truck thus fell within the class of beneficiaries contemplated by Stewart-Smith. We thus find substantial undisputed evidence that Avi-Truck was within the class of beneficiaries intended by the parties, and that its addition as a beneficiary does not increase the risk undertaken by Stewart-Smith. We therefore affirm the trial court's holding that Avi-Truck had standing to sue Stewart-Smith on the insurance contract. III. AIRWORTHINESS CERTIFICATE Stewart-Smith's second challenge to the 1980 Order of Partial Summary Judgment concerns the court's ruling that the absence of an airworthiness certificate in the YC-122 did not defeat coverage under the insurance contract. Exclusion (c) in the policy provided that coverage does not apply "while the aircraft is in flight unless its airworthiness certificate is in full force and effect." The insurers relied in part on this exclusion when they denied coverage under the policy. They now argue that the superior court decided to strike exclusion (c) on the basis of disputed facts and that the Order of Summary Judgment was therefore erroneous. The superior court based its holding on two alternative theories. First, it found that the language of exclusion (c) "is ambiguous as a matter of law." It noted that "unless its airworthiness certificate is in full force and effect" could be interpreted to mean that whatever airworthiness certificate the plane had when it was insured must remain in full force and effect. The court found that "in this case the status quo involved an aircraft which had no airworthiness certificate and no practical means for obtaining one for the uses designated in the policy," and that status quo was thus in fact preserved. In U.S. Fire Insurance Co. v. Colver, 600 P.2d 1 (Alaska 1979), we stated that "due to an inherent disparity in bargaining power between the insurer who drafts the contract and the insured, ambiguous coverage and exclusion clauses must be resolved in favor of coverage whenever possible." Id. at 3 (citations omitted). Ambiguity exists "only when the contract, taken as a whole, is reasonably subject to differing interpretations." Id. We believe that exclusion (c) is not reasonably subject to differing interpretations. Even when construed against the insurers, the phrase "its airworthiness certificate must be in full force and effect" clearly requires that the aircraft have an airworthiness certificate and that it be in effect at the time of the flight. The second basis for the trial court's ruling was a finding that the policy with the exclusion did not reflect the bargain made by the parties. The court reasoned that the intention of the parties, as indicated by the insurance binder, was to insure a YC-122 for carrying cargo. Since a YC-122 could not obtain an airworthiness certificate for carrying cargo, the policy, as it finally appeared, with the requirement of an airworthiness certificate, did not reflect that intention. The court concluded that: An insurance policy that comes back and says, in effect, we'll take a premium, but we're not going to provide you any coverage at all for the purpose which you have articulated, seems to me to materially alter the bargain and therefore cannot be deemed a part of this contract. Stewart-Smith contends that the trial court's conclusion required a finding as to the bargain reached by the parties which was not supported by uncontested evidence. It argues that the court implicitly found that both parties actually knew that the plane would be used as a public aircraft without an airworthiness certificate and that they intended that coverage would exist even absent a certificate. Since Jack Good denied that he knew that the plane would be used only for public use or that it did not have an airworthiness certificate, that finding was not supported by undisputed facts. Stewart-Smith therefore claims that summary judgment was erroneously granted. See Braund, Inc. v. White, 486 P.2d 50, 53-54 (Alaska 1971). We disagree with Stewart-Smith's analysis. Whether or not the insurers knew that the plane had no airworthiness certificate, it is undisputed that they undertook to insure it for carrying cargo. It is also undisputed that, as a practical matter, a YC-122, like most surplus military aircraft, could not have obtained an airworthiness certificate for carrying cargo. If the insurers had any reason to know that an airworthiness certificate was virtually unobtainable under these circumstances, their agreement to insure the plane for carrying freight includes an implied agreement to insure it without an airworthiness certificate. Stewart-Smith argues that Jack Good was reasonable in assuming that the YC-122 would be operated under TNA's air taxi certificate rather than as a public aircraft, and therefore that the plane had an airworthiness certificate. It claims that TNA should have informed Good if the plane would be subject to another use not requiring an airworthiness certificate. Leaving aside the question of the reasonableness of Good's assumption, we believe that the burden was on the insurers to inquire about the use to which the plane would be put, as well as its possession of an airworthiness certificate. Absent intentional misrepresentation, Stewart-Smith cannot deny recovery because TNA failed to volunteer information which the insurers did not request. "It is an insurer's duty to ascertain the facts, and if nothing is concealed, and it makes no inquiries, it cannot complain that the situation was not what it supposed it to be." 9 G. Couch and R. Anderson, Couch Encyclopedia of Insurance Law § 38.72 at 388. Accord, National Aviation Underwriters, Inc. v. Fischer, 386 F.2d 582 (8th Cir.1967), Graham v. Aetna Insurance Co., 243 S.C. 108, 132 S.E.2d 273, 275 (1963), Uslife Credit Life Insurance Co. v. McAfee, 29 Wash.App. 574, 630 P.2d 450, 453 (1981). Stewart-Smith presented no evidence that TNA made any misrepresentations about the aircraft in the process of obtaining insurance. Absent evidence of "intentional withholding of material facts which good faith and fair dealing require [it] to disclose," TNA's failure to discuss the plane's lack of an airworthiness certificate does not rise to the level of misrepresentation. 9 G. Couch and R. Anderson, Couch Encyclopedia of Insurance Law § 38:6 at 338. Moreover, we believe that the unusual nature of the airplane and the significant difference between it and the other planes operated by TNA should have alerted the insurers to the need to investigate the risk they were insuring. It is apparent from the evidence before the trial court that such an investigation would have disclosed that the aircraft might not have an airworthiness certificate. We need not reach the question of whether the insurers' failure to investigate the availability of an airworthiness certificate for the YC-122 would have justified the court in striking exclusion (c) had the policy been issued before the plane crashed. In fact, at the time of the crash, the policy had not been issued, and the only written statement of coverage was a binder which indicated that the YC-122 was insured for "Freight Carrying for Hire." A binder is generally considered to include the usual terms of similar policies. AS 21.42.240. Although the policy to which the YC-122 was added was the "usual" one for TNA, it clearly was not the "usual" policy for an aircraft, which, as a practical matter, could not have obtained an airworthiness certificate for the purpose for which it was insured. It therefore cannot be presumed to have included an airworthiness certificate exclusion. We conclude that, absent a "usual" policy, the binder must be interpreted in accordance with the reasonable expectations of the insured. Under such an interpretation, the binder for the YC-122 implied that the plane was insured when it carried freight for hire in the only legal manner it could reasonably have been expected to do so: as a public use aircraft and without an airworthiness certificate. In light of the insurers' burden of investigating the risk they agreed to underwrite, Stewart-Smith must be charged with knowledge of the bargain implied by the binder. By subsequently issuing a policy which denied liability when the aircraft was flown under those circumstances, it imper-missibly altered the nature of this bargain. Cf. Mutual Fire Insurance Co. v. Goldstein, 119 Md. 83, 86 A. 35 (1912) (issuance of a policy including a clause prohibiting additional insurance which was not mentioned in the binder "change[d] the terms of the present insurance without the consent of the insured." Id. at 36). We therefore affirm the trial court's order striking the policy exclusion for aircraft without airworthiness certificates. IV. PILOTS' TYPE RATING Stewart-Smith's third contention on appeal is that the trial court erred in refusing to find that exclusion (d) of the policy allowed the insurers to avoid liability. Exclusion (d) provides in relevant part that no coverage is afforded while the aircraft "is being operated by any . person in violation of the terms and limitations of his Civil Aeronautics Administration Pilot's Certificate or Medical Certificate." Stewart-Smith contends that the aircraft's pilots violated their CAA licenses, because the pilot was not "type rated" for large aircraft in violation of 14 CFR § 61.31(a) and the co-pilot did not have the minimum of three takeoffs and landings in violation of 14 CFR § 61.55. Avi-Truck concedes that the pilots were in violation of these regulations, but contends that the regulations are not applicable to pilots of public aircraft. Several TNA employees testified that they had contacted the Federal Aviation Administration and had been told that, if the plane was operated as a public aircraft, its pilots need not be type rated. Avi-Truck contends that this information was correct, or at least that TNA was reasonable in believing that it was correct, and that the exclusion should not apply. After trial, the court concluded that FAA regulations required that the pilots of public aircraft be type rated. The court ruled, however, that the pilot certificate exclusion has no applicability because TNA reasonably expected that coverage would exist regardless of that requirement. In Stordahl v. Government Employees Insurance Co., 564 P.2d 63, 66 (Alaska 1977), we recognized that because of the inequality of bargaining power between the insured and the insurer, an insurance policy would be considered a contract of adhesion and would be construed to provide "the coverage which a lay person would have reasonably expected, given a lay interpretation of the policy language." (Footnote omitted). See also O'Neill Investigations v. Illinois Employers Insurance, 636 P.2d 1170, 1177 (Alaska 1981) ("[W]e will honor the expectations of the parties as to coverage when those expectations are objectively reasonable."). The insurers contend that the reasonable expectations rule in Stordahl is not applicable to this case because Sudder cannot be considered a lay person, in light of his experience in the air taxi business and in insuring aircraft. Avi-Truck responds that, although Sudder was experienced in the air transportation industry, he was not an expert in the aircraft insurance business. We agree. Sudder's testimony indicates that, although he had insured several aircraft, he had only a layman's understanding of insurance policies and relied on the expertise of insurance agents. We therefore interpret the insurance contract in accordance with the reasonable expectations of TNA. We agree with the trial court's finding that TNA was reasonable in expecting that it was covered by the policy when the aircraft was flown by its pilots. First, several TNA employees had spoken to representatives of the FAA, including its legal counsel, and had been assured that type ratings were not required — or even issued — for public use aircraft. Under these circumstances, TNA was clearly reasonable in expecting that its pilots could legally fly the YC-122. Second, the binder issued by the insurers included a specific pilot warranty indicating that the plane would be flown by "[a]ny properly certificated pilot in command with minimum 5000 total time 2000 multi-engine and approved by insured." The binder made no mention of type rating. In addition, Jack Good corresponded with TNA employees and with Stewart-Smith about Delbert Dillon's (the co-pilot when the YC-122 crashed) experience and license. Thereafter, the insurers approved him as pilot in command pending completion of 50 hours in the aircraft. This correspondence made no mention of type ratings. Moreover, TNA employees had discussed the qualifications of TNA pilots with Good, and Good referred to their hours and licenses in telexes to Stewart-Smith. Under the circumstances, TNA was reasonable in believing that Stewart-Smith intended to insure the plane as it was flown by TNA pilots, whose qualifications the insurers knew. As we pointed out in IN A Life Insurance Co. v. Brundin, 533 P.2d 236, 242 (Alaska 1975), a "layperson's expectations of insurance coverage are of course formed by many factors besides the language of the policies themselves." In this case, TNA's expectations were formed by the language in the binder, its own conversations with Good about the specific qualifications of the TNA pilots who would be flying the plane, and the information it received from the FAA regarding the legality of operation of a public aircraft by those pilots. Moreover, for the reasons discussed in Part III, supra, TNA was reasonable in expecting that the insurers knew or should have known that the plane would be flown as a public aircraft. It could therefore reasonably assume that, when Stewart-Smith approved its pilots, it knew of the FAA's position that they could legally fly the YC-122. Based on these factors, TNA's expectation of coverage while the plane was flown by its pilots was reasonable. We accordingly affirm the trial court's holding that exclusion (d) will not avoid coverage under the policy. V. HEARSAY Stewart-Smith's final contention on appeal is that the trial court erred in admitting the testimony of TNA employees as to their conversations with FAA officials. Stewart-Smith argues that such testimony was irrelevant and inadmissible as hearsay under Alaska R.Evid. 802. Alaska R.Evid. 801(c) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Where testimony is offered to establish that a statement was made, rather than to prove its truth, the hearsay rule does not apply. Putnam v. State, 629 P.2d 35, 40 (Alaska 1980). The testimony about the FAA officials' statements was not offered to prove the truth of those statements, i.e., that pilots of public use aircraft need not be type rated. Instead, it was offered to prove that the statements were made, and that TNA's belief that its pilots could legally fly the YC-122 was therefore reasonable. The testimony is thus relevant only as it relates to the state of mind of TNA employees who heard the statements, and the reasonableness of their actions in reliance on them. In International Longshoremen's & Warehousemen's Union v. Juneau Spruce Corp., 189 F.2d 177 (9th Cir.1951) the Court of Appeals for the Ninth Circuit faced a similar challenge to the admissibility of out-of-court assertions to prove the reasonableness of the conduct of persons who relied on them. In that case, the director of a lumber mill had closed the mill based upon reports that longshoremen would refuse to unload his lumber if it was delivered to various ports. The court stated that the director's testimony as to the reports was admissable, "not as proof of the truth that the ports . were in fact closed to appellee, but only to show that appellee, in relying on such reports, acted in a reasonable manner in closing its mill." Id. at 192. Similarly, the testimony of TNA's employees was admissible to show that TNA was reasonable in believing that Stewart-Smith's apparent willingness to insure its pilots was consistent with FAA regulations. AFFIRMED. . Avi-Truck initially claimed standing as assign-ee of TNA and of Alaska Statebank, the loss payee on the insurance contract. The trial court denied the claim of assignment from TNA and declined to reach the question of assignment by the bank. Neither party has raised the question of assignment on appeal, and we therefore will not consider it. . We limited our holding in RCA to subrogation claims against an implied co-insured. 623 P.2d at 1220. . In Taylor, as in the instant case, the insurers were unaware of the existence of third parties; indeed, the policy was merely a continuation of the one which the sellers had maintained prior to the sale of the house. We find "implication at law" of a third-party beneficiary contract a better label then "reformation." Reformation is a means of correcting mutual mistakes and thus conforming a contract to the clear intentions of the parties. Riley v. Northern Commercial Co., 648 P.2d 961, 969 (Alaska 1982). . Other jurisdictions have come to the opposite conclusion. See, e.g., Spires v. Hanover Fire Ins. Co., 364 Pa. 52, 70 A.2d 828, 831-832 (1950). The court in that case rested its holding in part on a concern about the added risks to which an insurer would be subjected if an unnamed third party were allowed to proceed directly against it. Since we agree with the trial court's finding that the insurers' risks are unchanged if Avi-Truck is allowed to proceed directly against it, we decline to follow the Spires holding. . When asked at his deposition whether the plane was brought to Anchorage for TNA or for Murnan and Coward, Sudder replied, Well, I'm not quite sure how to answer that like who the plane was brought back for. I mean — they brought the airplane back to do the work for it. At that particular time, I don't even think it was decided who was going to end up with the ultimate purchase of the airplane. . Negotiations about additions to the contract took place throughout December and January. For example, Del Dillon was added as pilot in command (pending completion of 50 hours in the aircraft) on December 15, Alaska Statebank was added as loss payee on about January 10, 1977, and flight coverage was added on January 24, 1977. While it is unclear from the record exactly when the Murnans and the Cowards decided to buy the airplane, Avi-Truck (which was formed expressly for the purpose of purchasing the YC-122) was incorporated on December 20. Sometime before that date Murnan and Coward paid $10,000.00 toward the plane. . A "public aircraft" is one which is "used exclusively in the service of any government or of any political subdivision thereof . but not including any government-owned aircraft engaged in carrying persons or property for commercial purposes." 49 U.S.C. § 1301(36). A public use aircraft may be used to carry government cargo for hire. . According to the affidavit of Dayton Curtis, Chief of the FAA Engineering and Field Office, surplus military aircraft have been eligible for certificates in three categories since 1947. Certification under two of these categories is extremely expensive and time consuming and has only been accomplished in a few cases by the original manufacturer of large military aircraft. The third category limits the use of the plane and forbids the use of the certificated plane for hauling cargo for hire. Mr. Curtis indicated that information about certificates is included in a publication which is readily available to the public. . Good knew that the plane was different from TNA's other planes in that it was over 12,500 pounds, had twin engines and would be used only for cargo. Sudder testified that, because the plane weighed more than 12,500 pounds, it could not have been used under the air taxi certificate which TNA possessed at the time. . When the case went to trial in 1981, Stewart-Smith alleged misrepresentation and fraud on the part of TNA. The trial court found that "[t]here was no evidence whatever" to support the charge. The materials before the court at the time of partial summary judgment were similarly devoid of evidence of affirmative misrepresentation. . Courts have been reluctant to find misrepresentation when information was not directly solicited. Thus, failure to mention a wife's terminal cancer when obtaining multiple insurance on her life, Uslife Credit Life Ins. Co. v. McAfee, 29 Wash.App. 574, 630 P.2d 450, 455 (1981), failure to disclose previous collection of fire insurance when obtaining a fire insurance policy, Graham v. Aetna Ins. Co., 243 S.C. 108, 132 S.E.2d 273, 275 (1963), and failure to disclose that a healthy woman who accompanied the insured when he applied for insurance on his wife's life was not his wife, Greensboro Nat'l Life Ins. v. Southside Bank, 206 Va. 263, 142 S.E.2d 551 (1965), have been held not to rise to the levels of misrepresentation. .Indeed, when John Chapman, the Stewart-Smith agent responsible for the policy, first was asked to insure the plane, he did conduct an investigation. He sought information from people who had seen the plane and looked it up in Jane's All the World Aircraft Encyclopedia. The entry in Jane's included information on the plane's size and the fact that the YC-122 had been manufactured in limited numbers for the military. On the basis of his investigation he decided not to insure the plane in-house, but to send it directly to the underwriters in London. He did not pass along the information he had gathered because he expected them to conduct their own investigation: "I was not going to hold London's hand." Mr. Chapman (who was British and had only been in the U.S. for about 18 months when he handled the TNA account) testified that the connection between public use aircraft and the absence of airworthiness certificates was not well known in London. He himself was apparently unaware that private companies could operate public use aircraft. Jack Good testified that it was his impression that aircraft manufactured for the military often did not have airworthiness certificates, and that obtaining a certificate for a military plane was difficult. Combined with the affidavit of Dayton Curtis indicating that information on the certificability of aircraft was available to the public, the testimony of Good and Chapman indicates that had the insurers investigated the aircraft reasonably thoroughly, they would at least have been put on notice that it might lack an airworthiness certificate and that it might be legally operable to carry freight without one. . AS 21.42.240 provides that: (a) A binder or other contract for temporary insurance may be made orally or in writing, and shall be considered to include all the usual terms of the policy as to which the binder was given together with the applicable endorsements designated in the binder, except as superseded by the clear and express terms of the binder. . The trial court reached this conclusion after a five-day trial on the merits of the case. . Avi-Truck challenges the court's conclusion that federal law required the pilots to be type rated. Since we affirm the trial court's holding that the exclusion does not avoid coverage, we do not address that contention.

6979378

N.G., Petitioner, v. SUPERIOR COURT, Respondent

N.G. v. Superior Court

2012-12-14

No. A-11049

328

341

291 P.3d 328

291

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T18:40:56.488970+00:00

CAP

Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.

N.G., Petitioner, v. SUPERIOR COURT, Respondent.

N.G., Petitioner, v. SUPERIOR COURT, Respondent. No. A-11049. Court of Appeals of Alaska. Dec. 14, 2012. Shaun M. Sehl and Victor Kester, Office of Victims' Rights, Anchorage, for the Petitioner. Hanley R. Smith, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Real Party in Interest, David Standifer, Allen M. Bailey, Anchorage, for Amicus Curiae National Crime Victim Law Institute. No separate appearance for the Superior Court. Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.

7759

50863

OPINION MANNHEIMER, Judge. David Standifer is facing charges of sexual assault, attempted sexual assault, and physical assault, based on allegations that he attacked a woman named N.G. It appears that N.G. has a history of alcoholism, and there is at least some indication that she was previously diagnosed as suffering from a mental illness. Based on this, the superior court has issued an order that requires N.G. to identify everyone who has provided health care to her during the past twenty years, and that requires N.G. to sign a release so that the court can issue subpoenas to all of these health care providers, directing them to produce their records for the court's in camera inspection. The court intends to examine these records to determine whether they contain non-privileged information, and to determine whether this information is relevant to N.G.'s "ability to accurately perceive or truthfully report [the] events" at issue in this case. If so, the court intends to disclose this information to Standi-fer's defense team. As we explain in this opinion, we conclude that the superior court's order is premised on a mistakenly narrow interpretation of the psychotherapist-patient privilege. We further conclude that the superior court's order is inconsistent with Alaska law governing the circumstances in which a court has the authority to order disclosure of a victim's or witness's privileged psychotherapy records. We therefore reverse the superior court's order. Underlying facts As explained at the beginning of this opinion, David Standifer stands charged with sexual assault, attempted sexual assault, and physical assault, based on allegations that he attacked N.G. According to the State's evidence, the attack took place in an isolated area near downtown Anchorage. N.G. managed to escape and run away to a more public place; a passerby observed N.G. after she collapsed on a roadway, bleeding and naked from the waist down. The police were summoned, and N.G. was taken to a medical facility for a sexual assault examination. A few days later, N.G. sought follow-up medical care. At that time, she was seen by two physicians. The case notes prepared by the sexual assault examiner, as well as the case notes prepared later by the two physicians, refer to N.G.'s history of treatment for aleohol abuse and alcohol withdrawal. In addition, one of the physicians' case notes mentions that N.G. "(has] a history of bipolar disorder". Following Standifer's indictment, Standi-fer's attorney asked the superior court to order production of "any and all medical, alcohol treatment{, and] psychiatric records concerning N.G.". The State opposed this motion, as did N.G. herself. (N.G. appeared independently for this purpose, represented by the Office of Victims' Rights.) With regard to the request for disclosure of N.G.'s history of aleohol treatment, Standi-fer's attorney noted that the case notes (de-seribed above) referred to N.G.'s history of aleohol treatment. The defense attorney also asserted that he had examined other court records (public records) involving N.G., and that these records indicated that N.G. had a history of erimes that may have been alcohol-related. One of these records indicated that N.G. might have suffered an alcohol blackout. With regard to the remainder of the defense request-1.e., the request for disclosure of all of N.G.'s other medical and psychiatric records-the defense attorney merely asserted that "there [was] a reference to a mental health diagnosis" in the physicians' case notes described above. The defense attorney was apparently referring to the one physician's mention of "bipolar disorder". Standifer's attorney acknowledged that the State presumably did not possess N.G.'s medical and psychiatric records. The defense attorney therefore asked the superior court to order N.G. to produce the names and addresses of every health care provider from whom she had ever sought medical treatment, psychiatric care or psychological counseling, or alcohol counseling or treatment. In addition, the defense attorney asked the superior court to order N.G. to sign a blanket release, authorizing all of these health care providers to turn their files over to the superior court for the purpose of allowing the court to conduct an in camera inspection of these materials-with the understanding that these materials would later be disclosed to Standifer's defense team if the court concluded that the materials were relevant to "[N.G's]l ability to accurately perceive or truthfully report [the] events" at issue in this case. Standifer's attorney conceded that he was seeking the production of privileged records-that is, N.G. had an evidentiary privilege to refuse to produce these materials. However, the defense attorney asserted that even if the requested materials were protected by privilege, the superior court should still order N.G. to authorize the disclosure of the requested materials because (according to the defense attorney) N.G.'s privilege had to yield to the defendant's need for relevant evidence. After considering Standifer's request, as well as the separate oppositions filed by the State and by N.G., the superior court granted Standifer's request without explanation or comment. In essence, the superior court ordered the production of all of N.G.'s treatment records, albeit in a two-stage process. The initial portion of the court's order directed N.G. to disclose the names and addresses of all of her health care providers (during the previous two decades), and further directed N.G. to sign a release authorizing these health care providers to turn their records over to the superior court. In the second stage of the process, the court intended to order these health care providers to produce their files to the court, so that the court could inspect these files. N.G. promptly sought reconsideration of the superior court's decision, but the superior court ultimately re-affirmed its earlier order. This time, the superior court offered a legal justification for its decision: the superior court declared that it was adopting the reasoning contained in a written decision issued earlier (May 18, 2011) by another superior court judge in another case-State v. Kalma-koff, File No. 3AN-09-14599 Cr. The Kaimakoff case involved a similar court order-that is, an order directing the victim of an alleged crime to reveal the identity of all her health care providers, so that the court could then obtain all of the victim's psychotherapy records. In Kailmakoff, the superior court rejected the victim's argument that all of a person's psychotherapy records are privileged. The superior court noted that, under Alaska Evidence Rule 504(b), the psychotherapist-patient privilege protects only "confidential communications"-as that term is defined in Evidence Rule 504(a)(4)-"made for the purpose of diagnosis or treatment of the patient's physical, mental, or emotional conditions". The court reasoned that, because the privilege was limited to confidential communications made for these specific purposes, there might well be other information contained in a person's psychotherapy records that was not privileged-i.e., information that did not disclose the content of confidential communications. Based on this reasoning, the superior court in Kalmakoff concluded that the witness's psychotherapy records were likely to contain both privileged information and non-privileged information-and that the only way to separate the privileged information from the non-privileged information was for the court to conduct an in camera inspection of all of the psychotherapy records. This, then, was the justification that the superior court gave in the present case for its order requiring the production of all of N.G.'s psychotherapy records. N.G. now appeals the superior court's decision. An overview of the legal issues presented here At the outset, we must point out that two distinct legal issues are presented in this case, but the superior court's order addresses only one of them. As we have explained, the superior court's stated rationale for ordering the production of N.G.'s health providers' records was that these records probably contained both privileged and non-privileged information-because the psychotherapist-patient privilege protects only "confidential communications". Based on this interpretation of the scope of the privilege, the superior court concluded that it needed to examine all of N.G.'s psychotherapy records in camera-so that the court could identify the non-privileged information, determine if that non-privileged information was relevant to assessing N.G.'s credibility as a witness, and (if so) disclose that information to Standifer's defense team. Thus, one of the issues presented in this appeal is whether the superior court was correct in construing the psychotherapist-patient privilege in this limited fashion, and correct in presuming that N.G.'s psychotherapy records likely contained a substantial amount of non-privileged information. But under Alaska law, even if all of the information in N.G.'s treatment records were privileged, this would not necessarily resolve the question of whether that information should be disclosed to the defense. Several times, this Court and the Alaska Supreme Court have approved trial judges' decisions to conduct in camera examinations of confidential or privileged records for the purpose of determining whether some of the information contained in those records should be disclosed to a litigant. Thus, there are really two main issues to be addressed in N.G.'s case. The first issue is whether the superior court was correct when it concluded that N.G.'s treatment ree-ords likely included non-privileged information-information that had to be separated from the privileged information contained in those records. But the second issue is whether, even if all of the information contained in N.G.'s treatment records were privileged, the superior court would still be justified in ordering disclosure of some or all of this information to the defense. The scope of the psychotherapist-patient privilege under Alaska law, and why we conclude that the superior court was wrong in supposing that significant portions of N.G.'s psychotherapy records would not be privileged Alaska Evidence Rule 504(b) declares that any person who has consulted a physician or a psychotherapist has a privilege to refuse to disclose (and to prevent other people from disclosing) "confidential communications made for the purpose of diagnosis or treatment of the patient's physical, mentall,] or emotional conditions, including alcohol or drug addiction". The privilege for physician-patient communications does not apply in criminal proceedings; see Evidence Rule 504(d)(7). However, the privilege for psychotherapist-patient communications does apply in criminal proceedings. Ibid. Moreover, Evidence Rule 504(a)(8) adopts an expansive definition of "psychotherapist". Under this rule, the term "psychotherapist" includes not only psychiatrists and psychologists, but also all licensed professional counselors, all licensed marital and family therapists, and "[any] person authorized to practice medicine . while engaged in the diagnosis or treatment of a mental or emotional condition, including alcohol or drug addiction". Given this broad definition of the health practitioners who qualify as "psychotherapists" for purposes of the privilege, it would appear that N.G.'s psychotherapist-patient privilege covers essentially all of the information that Standifer's defense team ultimately wishes to obtain-that is, all information relating to N.G.'s diagnosis and treatment for alcohol abuse or for mental illness, insofar as this information might be pertinent to her ability to "accurately perceive or truthfully report events". But the superior court's order in this case is premised on the idea that, even though all of the health care providers who treated N.G. for alcohol abuse or mental illness might qualify as "psychotherapists" for purposes of the privilege, there is still a significant possibility that some of the information contained in these health care providers' records would not be covered by the psychotherapist-patient privilege. The superior court noted that the privilege extends only to "confidential communica tions", as defined in Evidence Rule 504(a)(4). Because of this limitation, the superior court reasoned that the information in N.G.'s psychotherapy records would not be privileged unless that information described, or otherwise revealed, the content of "confidential communications". The superior court did not further explain or specify the kinds of information that it believed would not be privileged. However, because of the court's emphasis on "confidential communications", it appears that the court was thinking of information that did not involve the disclosure of a patient's statements. Thus, for instance, one might argue that a psychotherapist's observations of a patient's physical condition, or a psychotherapist's observations of a patient's emotional state or "affect", considered as a distinct factor in the diagnosis (apart from the content of what the patient actually said), would not be covered by the privilege. Similarly, one might argue that the privilege would not protect the psychotherapist's ultimate diagnosis of the patient, or the psychotherapist's treatment plan for the patient-even though the privilege might protect the patient's various statements that led the psychotherapist to reach that diagnosis, or to formulate that treatment plan. This interpretation of Evidence Rule 504 is incorrect. First, we note that the psychotherapist-patient privilege protects more than the statements that a patient makes to their psychotherapist. Evidence Rule 504(b) declares that the privilege applies to all confidential communications made for the purpose of diagnosis or treatment-regardless of whether those communications take place directly between the patient and the psychotherapist, or between the patient and other persons who are participating in the diagnosis or treatment under the direction of the psychotherapist (including members of the patient's family), or solely among the people participating in the diagnosis or treatment (ie., even when the patient is not a participant in the conversation). See, e.g., State v. Miller, 300 Or. 203, 709 P.2d 225, 238-240 (1985), where the Oregon Supreme Court held that the defendant's explanation to a secretary-receptionist as to why he needed to see a doctor was covered by the psychotherapist-patient privilege, since "[a] reasonable person in [the] defendant's position could have believed [that] he had to tell her his problem in order to get past her to talk to a doctor." (Assumedly, the receptionist's later communication of the defendant's words to the doctor was also covered by the privilege.) See also American National Watermat-tress Corp. v. Manville, 642 P.2d 13830, 1883-35 (Alaska 1982), where the Alaska Supreme Court held that the attorney-client privilege covered statements made by a prospective tort plaintiff to an investigator employed by an attorney-even though the attorney had not yet agreed to take the plaintiff's case-because the purpose of having the plaintiff talk to the investigator was to enable the attorney to evaluate the plaintiff's case. In general, see the Commentary to Evidence Rule 504(b), which explains that the scope of the communications protected by the psychotherapist-patient privilege (and the physician-patient privilege) is modeled after the broad scope of communications protected by Alaska's attorney-client privilege (which is described in the Commentary to Evidence Rule 508(b), third paragraph). Second, even though Evidence Rule 504(b) ostensibly protects only "confidential communications", we interpret this phrase to include other information generated during the professional relationship (eg., test results), as well as the psychotherapist's perceptions, theories, and conclusions pertaining to diagnosis and treatment when these perceptions, theories, and conclusions are based on information imparted to the psychotherapist through confidential communications. In many jurisdictions where the psychotherapist-patient privilege is codified by statute or rule, the privilege is defined so that it explicitly extends to these matters. See, for instance, California Evidence Code § 1012, which states that the term "confidential communication", for purposes of the psychotherapist-patient privilege, "includes a diagnosis made and the advice given by the psychotherapist in the course of that relationship". But even in jurisdictions where the privilege is defined solely in terms of "confidential communications"-as it is in Alaska-the privilege is still generally construed in a broader manner. As McCormick on Evidence explains, Statutes conferring a physician-patient privilege vary extensively, though probably a majority follow the pioneer New York and California statutes in extending the privilege to "any information acquired in attending the patient." Understandably, these provisions have been held to protect not only information explicitly conveyed to the physician by the patient, but also data acquired by examination and testing. Other statutes appear facially to be more restrictive and to limit the privilege to communications by the patient. This appearance, however, may frequently be misleading, for statutes of this sort have been construed to provide a privilege fully as broad as that available elsewhere. Kenneth S. Broun & alia, McCormick on Evidence (6th edition, 2006), § 100, Vol. 1, pp. 455-56 (footnotes omitted). We conclude that Alaska's psychotherapist-patient privilege should be construed in the broader manner suggested by this passage from McCormick. First, as we explained earlier, the Commentary to Alaska Evidence Rule 504 declares that the seope of the psychotherapist-patient privilege is meant to mirror the seope of the attorney-client privilege codified in Evidence Rule 508. Even though the attorney-client privilege is also defined solely in terms of "confidential communications", see Evidence Rule 508(b), Alaska cases clearly hold that the attorney-client privilege extends not only to confidential communications between the client and the attorney, but also to other information generated during the professional relationship. For example, in Houston v. State, 602 P.2d 784, 790 (Alaska 1979), our supreme court held that, when the defendant's attorney employed a psychiatrist to evaluate the defendant's potential insanity defense, the defendant's statements to the psychiatrist as well as the psychiatrist's resulting opinion were all protected by the attorney-client privilege. Similarly, in Oines v. State, 803 P.2d 884, 886 (Alaska App.1990), this Court held that the attorney-client privilege protected the results of a blood test performed by a defense expert (i.e., an expert hired by the defendant's attorney), and thus neither the attorney nor the expert could be required to disclose the blood test results. By analogy, then, the psychotherapist-patient privilege likewise should cover not only the confidential communications themselves but also other types of information generated during the professional relationship as a result of the confidential communications-information such as test results and diagnostic perceptions, theories, and conclusions. In his brief to this Court, Standifer argues against this broader reading of the privilege. Standifer relies on what this Court said about the psychotherapist-patient privilege in Cooper v. District Court, 133 P.3d 692, 716 (Alaska App.2006): [The psychotherapist-patient privilege does not cover all testimony that discloses that someone suffers from mental health or behavioral problems, or that describes those problems, or that describes other people's reactions to those problems. The privilege has a narrower scope: it applies only to testimony that reveals the substance of confidential communications made for the purpose of diagnosing or treating those problems. But the testimony at issue in Cooper-testimony relating to Cooper's son's behavioral problems and the effect that this was having on the marriage-was not elicited from, or (with one exception) attributed to, any mental health professional involved in the treatment of Cooper's son. Rather, this information was obtained from other people who had knowledge of the son's behavioral difficulties and the Coopers' marital relationship. (The one exception, which we noted in our opinion, 133 P.3d at 717, was a single statement attributed to a mental health professional regarding his assessment of the boy's case. We declared that this statement was admissible, not because it was unprivileged, but because "no objection was made." . Ibid.) In other words, our decision in Cooper is consistent with the interpretation of Evidence Rule 504 that we adopt now. We also believe there is a second, more fundamental reason for construing the psychotherapist-patient privilege more broadly than the phrase "confidential communications" might suggest: The privilege would essentially be gutted if a psychotherapist could be ordered to testify about a person's diagnosis or treatment, over the person's objection, so long as the psychotherapist refrained from expressly describing or referring to the content of any confidential communications. If we were to construe the privilege in the narrow fashion suggested by Standifer, and apparently adopted by the superior court, this would defeat the societal interests protected by the privilege. As our supreme court explained in Allred v. State, 554 P.2d 411 (Alaska 1976): [Clommunications to a psychotherapist in the course of therapy are inherently confidential. Patients often make statements in psychotherapy which they would not make to even the closest members of their families. Psychotherapy tends to explore the innermost recesses of the personality, the very portions of the self which the individual seeks to keep secret from the world at large. Revelation of such matters could have an irrevocably harmful effect upon the reputation and well being of the patient. [Citation omitted] [In addition], inviolability of the confidence is essential to achievement of the psychotherapeutic goal. Without foreknowledge that confidentiality will attach, the patient will be extremely reluctant to reveal to his therapist the details of his past life and his introspective thoughts and feelings. Without the patient's confidence a psychiatrist's efforts are worthless. Allred, 554 P.2d at 417. We therefore hold that the psychotherapist-patient privilege codified in Alaska Evidence Rule 504 protects not only "confidential communications" as defined in Rule 504(a)(4) but also other types of information generated during the professional relationship as a result of the confidential communications-information such as test results and diagnostic perceptions, theories, and conclusions. Because we interpret the psychotherapist patient privilege in this manner, it follows that the superior court was mistaken when it concluded that N.G.'s psychotherapy records likely contained significant amounts of non-privileged information, and that an in camera inspection of those records would be needed so that the court could cull this non-privileged information and disclose it to Stan-difer's defense team. Standifer is seeking all information contained in these records pertaining to N.G.'s diagnosis and treatment for alcohol abuse and/or mental illness, insofar as this information might be pertinent to N.G.'s ability to accurately perceive or truthfully report events. Given our interpretation of the seope of the privilege, it appears likely that all of the information that Standifer is seeking is, indeed, privileged. Standifer points out that the initial portion of the superior court's order does not require disclosure of any psychotherapy records; instead, the court has simply ordered N.G. to identify all of her health care providers. Standifer asserts that N.G. has no privilege to refuse to disclose the names and addresses of her health care providers. In Moudy v. Superior Court, 964 P.2d 469, 471 (Alaska App.1998), this Court held that the attorney-client privilege does not normally protect the fact that a person has consulted an attorney-as distinct from the confidential communications between attorney and client concerning the client's need for legal services, and the attorney's ensuing advice to the client. As explained in McCormick on Evidence, § 100, many jurisdictions follow this same rule with regard to the physician-patient privilege and the psychotherapist-patient privilege-although there is some contrary authority. And, as explained in footnote 6 of this section of McCormick, some state courts have drawn a distinction (for this purpose) between the physician-patient relationship and the psychotherapist-patient relationship-concluding that, in the context of psychotherapy, disclosure of a patient's identity would likely expose something about the nature of the patient's condition and treatment Our supreme court appears to have endorsed this approach in Falcon v. Alaska Public Offices Commission, 570 P.2d 469 (Alaska 1977). That case arose when Falcon, a physician who was running for elected office, refused to disclose the names of his patients to the Public Offices Commission. In discussing the policy interests at stake, the supreme court observed that, at least in certain situations, the mere fact that an individual has visited a certain physician might have the effect of disclosing confidential or sensitive information. The supreme court explained: [When] an individual visits a physician who specializes in contraceptive matters or whose primary practice is known to be giving abortions[,] and the fact of a visit or rendering of services becomes public information, private and sensitive information has, in our view, been revealed. Even visits to a general practitioner may cause particular embarrassment or opprobrium where the patient is a married person who seeks treatment without the spouse's knowledgel{,] or a minor who does so without parental intelligence. Similar situations would be presented where, because of a specialized practice, the disclosure of the patient's identity also reveals the nature of the treatment, and the particular type of treatment is one which patients would normally seek to keep private. Some examples would include the patients of a psychiatrist, psychologist or of a physician who specialized in treating sexual problems or venereal disease. Falcon, 570 P.2d at 479-480. However, we need not resolve this issue in N.G.'s case-because it would be completely artificial to view this one aspect of the superi- or court's order in isolation. The superior court not only ordered N.G. to disclose the names and addresses of her psychotherapists, but the court also ordered N.G. to sign a release authorizing these psychotherapists to turn their records over to the court,. The superior court made it clear that its ultimate intention was to identify all of N.G.'s psychotherapists, and then order them to produce their files for the court's in camera inspection-under the assumption that these psychotherapy records likely contained non-privileged information that should be disclosed to Standifer's defense team. Thus, even if there might be some instance-es where a person would have no privilege under Evidence Rule 504 to withhold the identities of their psychotherapists, we conclude that N.G. did have a privilege to withhold this information in the present case. Even though it appears that all, or essentially all, of N.G.'s psychotherapy records are privileged, did the superior court nevertheless have a justification for concluding that N.G.'s privilege might have to give way to Standifer's demand for production-and that, therefore, the court should conduct an in camera review of the psychotherapy records? As we noted toward the beginning of this opinion, the fact that all (or essentially all) of the information contained in N.G.'s psycho therapy records is privileged does not necessarily answer the question of whether the superior court had the authority to order production of these records and then examine the records in camera to determine if some of the information contained in these records should be disclosed to the defense. Conceivably, even when information about a witness is protected by the psychotherapist-patient privilege, a court might be justified in ordering disclosure of that information to the defendant if the information was sufficiently important to the defendant's cross-examination of the witness. Standifer indeed argues that his rights of confrontation and compulsory process, as well as his right to due process of law, must take precedence over N.G.'s psychotherapist-patient privilege if the information contained in N.G.'s psychotherapy records is pertinent to his defense- and he urges us to uphold the superior court's order on that basis. There are times when a witness's right to keep certain information confidential must yield to a criminal defendant's right to confront the witnesses against them. See, for example, Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), where the United States Supreme Court held that the defendant's right of confrontation took precedence over a statute requiring that the records of juvenile delinquency proceedings be kept confidential. Some evidentiary privileges, such as the government's privilege under Alaska Evidence Rule 509 to conceal the identity of its informants, are expressly defined so as to allow a court to engage in this weighing of interests. Other evidentiary privileges are treated in the same way, by court decision. See, for instance, Salazar v. State, 559 P.2d 66, 78-79 (Alaska 1976), holding that, under the facts, the marital communications privilege had to yield to the defendant's right of confrontation. However, certain evidentiary privileges-such as the attorney-client privilegee-are treated as absolute. That is, onee the holder of the privilege establishes that the privilege protects the information being sought, the privilege will be honored no matter how strong the countervailing interests in disclosure might be. Currently, Alaska law does not provide a firm answer to the question of whether a person's psychotherapist-patient privilege is absolute or, instead, can be overridden by a litigant's competing interest in disclosure. In Gunnerud v. State, 611 P.2d 69, 71-72 (Alaska 1980), the Alaska Supreme Court approved a trial judge's decision to conduct an in camera review of a psychiatric report concerning a government witness, to see if the report contained information that was relevant to assessing the witness's credibility. The trial judge in Gunnerud examined the psychiatric report, concluded that it had no relevance to the witness's credibility, and therefore refused to disclose the report to the defense. The supreme court upheld the trial judge's decision-but the implication of Gunnerud is that the trial judge would properly have disclosed the psychiatric report to the defense if the judge had concluded that the report was relevant to assessing the witness's credibility. Seemingly, Gunmerud supports Standifer's position in this appeal-his argument that a defendant's interest in confronting a government witness can override the psychotherapist-patient privilege. But it is unclear whether the witness in Gunnerud had a privilege to assert. The psychiatric report in Gunnerud was part of a pre-sentence report that was prepared in connection with an earlier criminal prosecution of the witness. In other words, the psychiatric report was already in the hands of the court and the State-apparently because the witness consented to be examined by a psychiatrist in connection with the sentencing in that earlier case, or else because the witness waived her psychotherapist-patient privilege for the purpose of allowing the sentencing court to consider a pre-existing psychiatric report. In Spencer v. State, 642 P.2d 1371 (Alaska App.1982), the trial court conducted a similar in camera review of a witness's psychiatric records, but those records also were already in the possession of the State-because the witness had signed a release authorizing disclosure of those records to the prosecutor, apparently in contemplation of the later in camera review by the court. Thus, no Alaska case provides a direct answer to the question of whether a court may override a witness's assertion of the psychotherapist-patient privilege in a criminal case and order disclosure of privileged information, based on the court's assessment that the defendant's interest in disclosure is more important than the witness's interest in maintaining the confidentiality of the privileged information. This issue has, however, arisen in other jurisdictions, and a majority of those courts have concluded that, if the defendant makes a sufficient preliminary showing, the defendant is entitled to have the trial court conduct an in camera inspection of a government witness's mental health records-and that the witness's psychotherapist-patient privilege can be overridden if the trial court concludes that portions of those records are sufficiently relevant to the defendant's guilt or innocence, or are sufficiently relevant to the witness's credibility. See State v. Storlazzi, 191 Conn. 453, 464 A.2d 829, 832-33 (1983); Bobo v. State, 256 Ga. 357, 349 S.E.2d 690, 692 (1986) (plurality opinion); State v. Peseti, 101 Hawai'i 172, 65 P.3d 119, 128 (2008); People v. Dace, 114 Ill.App.3d 908, 70 Ill.Dec. 684, 449 N.E.2d 1031, 1035 (1983), aff'd, 104 Ill.2d 96, 83 Ill.Dec. 573, 470 N.E.2d 993 (1984); Commonwealth v. Stockhammer, 409 Mass. 867, 570 N.E.2d 992, 1002 (1991); People v. Stanaway, 446 Mich. 643, 521 N.W.2d 557, 562 (1994); State v. McBride, 213 N.J.Super. 255, 517 A.2d 152, 160 (1986); People v. Acklin, 102 Misc.2d 596, 424 N.Y.S.2d 633, 636 (N.Y.Sup.Ct.1980); State v. Middlebrooks, 840 S.W.2d 317, 332 (Tenn.1992); State w. Green, 253 Wis.2d 356, 646 N.W.2d 298, 804-312 (2002); Gale v. State, 792 P.2d 570, 581-82 (Wyo.1990). But contra: People v. Hammon, 15 Cal.4th 1117, 65 Cal.Rptr.2d 1, 7, 938 P.2d 986, 993 (1997); People v. District Court, 719 P.2d 722, 727 (Colo.1986); State v. Famiglietti, 817 So.2d 901, 906 (Fla.App.2002); Goldsmith v. State, 337 Md. 112, 651 A.2d 866, 873 (1995); Commonwealth v. Wilson, 529 Pa. 268, 602 A.2d 1290, 1296-98 (1992). See also Jaffee v. Redmond, 518 U.S. 1, 17-18, 116 S.Ct. 1923, 1932, 135 L.Ed.2d 337 (1996) (a civil case in which the Supreme Court held that, under federal law, a witness's psychotherapist-patient privilege is absolute-that the protection of the privilege is not contingent on "a trial judge's later evaluation of the relative importance of the patient's interest in privacy and the evidentiary need for disclosure". However, the Supreme Court did suggest that there might be generalized situations in which the privilege would not apply; see footnote 19, 518 U.S. at 18, 116 S.Ct. at 1932). But even if this Court were to hold that a witness's psychotherapist-patient privilege could be overridden by a criminal defendant's constitutional interest in confronting the witness, we would not be able to affirm the superior court's order on this basis. As we have explained, when the superior court ordered the in camera production of N.G.'s psychotherapy records, the court did so under the theory that those records likely contained a significant amount of non-privileged material (because of the court's overly narrow interpretation of what sort of information is protected by the psychotherapist-patient privilege). The superior court's announced purpose for conducting its in camera examination of N.G.'s psychotherapy ree-ords was to separate privileged information from non-privileged information-and then disclose any relevant non-privileged information to Standifer's defense team. But as we explained in the preceding seetion of this opinion, there is little reason to think that N.G.'s psychotherapy records contain any significant amount of non-privileged information. Instead, one would expect that all, or essentially all, of the information contained in those records is covered by the psychotherapist-patient privilege. Thus, the superior court's rationale for conducting an in camera examination of those records was mistaken. The superior court never addressed the alternative question of whether the court might be legally justified in examining the psychotherapy records, and ultimately disclosing information contained in those ree-ords, even if that information was privileged. Thus, even if Alaska law allowed trial judges to balance a witness's psychotherapist-patient privilege against a defendant's interest in disclosure-i.e., allowed a judge to conduct an in camera examination of undisputedly privileged materials and then, potentially, order disclosure of some or all of this privileged information to the defense-the fact remains that the superior court made no findings and no ruling on this issue in N.G.'s case. The question, then, is whether this Court should remand this case to the superior court for consideration of this issue, or whether we should reverse the superior court's order outright. The answer to this question hinges on whether Standifer's offer of proof could conceivably justify an in camera review of N.G.'s psychotherapy records. We recently addressed an analogous issue in Booth v. State, 251 P.3d 369 (Alaska App.2011), a case that involved a defendant's request for disclosure of a police officer's personnel file. We held in Booth that the defendant was entitled to have the trial court conduct an in camero examination of the officer's personnel file if the defendant identified a type of information that would be relevant to the defendant's guilt or innocence (in light of the facts of the case, the State's theory of prosecution, and the defendant's theory of defense), and if this type of information is the kind of information that would be recorded in a police officer's personnel file[.] Booth, 251 P.3d at 374. We further held in Booth that if, during this in camera examination, the judge discovered that the personnel file did indeed contain this information, then the judge should turn the information over to the defense. Ibid. N.G.'s case differs from Booth because the files at issue in this case are not personnel files, but rather psychotherapy records. Arguably, even if the psychotherapist-patient privilege is not an absolute privilege, a person's psychotherapy records should still be entitled to greater protection than a public officer's employment records. See Commonwealth v. Barroso, 122 S.W.3d 554, 564 (Ky.2008) (overruling an earlier, more lenient test, and holding that "in camera review of a witness's psychotherapy records is authorized only upon receipt of evidence sufficient to establish a reasonable belief that the records [actually] contain exeulpatory evidence"). We need not decide whether the Booth test applies to defense requests for in camera inspection of a person's psychotherapy ree-ords, or whether a more protective test should apply, or whether psychotherapy records are absolutely privileged, because we conclude that Standifer's request for production in this case fails to satisfy even the Booth test. Standifer requested disclosure of any portions of N.G.'s psychotherapy records that might contain evidence that N.G. lacked the "ability to accurately perceive or truthfully report [the] events" at issue in this case. In support of that request, Standifer pointed to portions of the record indicating that N.G. had a history of treatment for aleohol abuse and alcohol withdrawal, including one incident where she may have suffered an alcoholic blackout. Standifer additionally relied on a notation made by one of the physicians who examined N.G., in which the physician indicated that N.G. had "a history of bipolar disorder". But even assuming the truth of these suggestions that N.G. has a history of aleoholism and a history of bipolar disorder, the question is whether, given the other facts of this case, there is reason to believe that these mental conditions significantly impaired N.G.'s ability to perceive or relate the events at issue here. As we noted in our order granting review in this case, the question is whether Standifer's offer of proof provided an evidentiary basis for concluding that persons who have experienced an alcoholic blackout at some point in the past, or who have a history of bipolar disorder, are therefore more likely to hallucinate or fundamentally misperceive events, or are more likely to be unable to discern truth from fiction in their later recounting of events. This is essentially the test that our supreme court endorsed in Gunnerud v. State, 611 P.2d 69 (Alaska 1980). As we explained earlier, Gunnerud involved a situation where the trial court was in possession of a psychiatric report dealing with a government witness (because this report was part of a pre-sentence report that was prepared in an earlier case involving the witness). The question was whether the defendant was entitled to disclosure of this psychiatric report. The trial judge examined the psychiatric report in camera and then declared that he was not going to disclose the report to the defendant "unless [the psychiatrist] can first advise [me] that the [patient's] history, and the examination, and [the] diagnosis [and] treatment, or . any prognosis that he might have concerning this witness would be such as to bear upon her credibility." In other words, the trial judge was unwilling to assume that the witness's credibility was in doubt simply because she had been diagnosed with, or treated for, mental illness. The supreme court upheld the judge's decision. See also Pickens v. State, 675 P.2d 665 (Alaska App.1984), where this Court addressed the related issue of whether the trial court should have granted the defendant's request for a court order directing the alleged victim in a sexual assault case to submit to a psychological examination. Despite the fact that there was evidence indicating that the victim, V.C., suffered from emotional problems, and that she ingested both alcohol and cocaine before the offense, we concluded that the defendant's offer of proof was inadequate to support an order requiring the vie-tim to submit to a psychological examination: Pickens failed to make an adequate showing of a potential relationship between V.C.'s psychiatric condition and her veracity as a trial witness.... Pickens relied exclusively on an affidavit . stating that V.C. threatened suicide two months prior to the sexual assault[,] and that she had previous emotional problems. The affidavit also noted that V.C. had used cocaine and was intoxicated at the time of the offense. On the basis of this affidavit, Pickens argues that psychiatric testimony would have aided the jury in assessing how aleohol and cocaine might have affected V.C.'s credibility. [But] Pickens does not indicate any specific reason to believe that V.C.'s prior emotional problems might have affected her veracity. The general assertions that V.C. had previously suffered emotional problems of an unspecified nature and that she used cocaine and alcohol before the offense do not directly call into question her psychiatric condition or the relationship of her condition to her veracity as a witness. Defense counsel's speculation that a psychiatric evaluation of the victim might turn something up does not amount to a showing of necessity justifying a court-ordered evaluation. We think that, at the very least, it would have been incumbent upon Pickens to make a specific showing of good cause to believe, first, that V.C.'s ability to perceive events accurately or to relate those events truthfully was substantially impaired and, second, that this impairment was of such a nature that a psychological evaluation would be likely to confirm its existence or to provide material information as to its scope. Pickens, 675 P.2d at 668-69. Standifer's offer of proof in the present case suffers from the same defect. His request for production of N.G.'s psychotherapy records rests on his implicit assertion that a person who suffers from alcoholism and/or bipolar disorder is, as a consequence, significantly more likely to fundamentally misper-ceive events, or significantly less likely to be able to discern truth from fiction in their later recounting of events. Conceivably, Standifer's assertion might be true-but we are unable to simply assume the truth of this assertion, and the record in front of us does not support this assertion. Accordingly, Standifer's offer of proof that N.G. suffers from alcoholism, and may suffer from bipolar disorder, was not sufficient to justify an in camera examination of her psychotherapy records. We note that, as part of Standifer's offer of proof, Standifer relied on an earlier court record indicating that, about two and a half years before the incident in Standifer's case, N.G. was arrested for shoplifting in Fairbanks, and when she was interviewed by the police, she claimed that she was innocent and that she had "blacked out". Recently, in Milligan v. State, 286 P.3d 1065 (Alaska App.2012), this Court held that evidence of a witness's prior alcoholic blackouts would be relevant if the proponent of this evidence showed that the witness was drinking at the time of the events being litigated, and that the witness's prior aleoholic blackouts were recent. Id. at 1069-1070. But here, Standifer did not offer evidence that some third person observed N.G. experiencing a blackout, or that a medical care provider diagnosed N.G. as having experienced a blackout. Rather, Standifer relied on N.G.'s own exculpatory assertion to the police that she was not guilty of shoplifting because she was experiencing a "blackout". In addition, the incident in question occurred in January 2008, approximately two and a half years before the events in Standifer's case. For these reasons, we conclude that Milligan is distinguishable. In sum, we conclude that Standifer's offer of proof was insufficient to justify an in camera examination of N.G.'s privileged psychotherapy records. Conclusion The superior court's order is REVERSED. BOLGER, Judge, concurring. . See also Stephen A. Saltzburg, Michael M. Martin, and Daniel J. Capra, Federal Rules of Evidence Manual (9th ed.2006), Vol. 2, pp. 501-38-501-39. . See, e.g., Falco v. Institute of Living, 254 Conn. 321, 757 A.2d 571, 576 (2000) (holding that the identity of the patient attacking the plaintiff was privileged under the psychiatrist-patient privilege statute); Dorris v. Detroit Osteopathic Hospital Corp., 460 Mich. 26, 594 N.W.2d 455, 460 (1999) (holding that the identity of the patient was protected by the physician-patient privilege statute). . Footnote 6 of McCormick lists the following decisions: Ex parte Abell, 613 S.W.2d 255 (Tex.1981) (holding that the privilege precluded the disclosure of the names of a psychiatrist's patients); Rudnick v. Superior Court of Kern County, 11 Cal.3d 924, 114 Cal.Rptr. 603, 523 P.2d 643 (1974) (holding that a patient's identity is privileged if the context of the disclosure will reveal the nature of the patient's illness); Hetter v. Eighth Judicial District Court, 110 Nev. 513, 874 P.2d 762 (1994) (holding that the names of a surgeon's patients may be protected if nature of the medical problem or the treatment would be revealed by disclosure of the name). . See Edward J. Imwinkelried, The New Wig-more: A Treatise on Evidence: Evidentiary Privileges (2nd edition, 2010), § 6.2.8, p. 578, n.506. . Gunnerud, 611 P.2d at 71. . Spencer, 642 P.2d at 1374. . Gunnerud, 611 P.2d at 72.

10397556

Phillip Paul WEIDNER and Drathman & Weidner, A Professional Corporation, Appellants, v. STATE of Alaska; Superior Court for the State of Alaska, Third Judicial District, Appellees

Weidner v. State

1988-11-25

No. A-420

717

723

764 P.2d 717

764

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:38:10.865331+00:00

CAP

Before SINGLETON, J., COMPTON, Justice, and GREENE, Superior Court Judge.*

Phillip Paul WEIDNER and Drathman & Weidner, A Professional Corporation, Appellants, v. STATE of Alaska; Superior Court for the State of Alaska, Third Judicial District, Appellees.

Phillip Paul WEIDNER and Drathman & Weidner, A Professional Corporation, Appellants, v. STATE of Alaska; Superior Court for the State of Alaska, Third Judicial District, Appellees. No. A-420. Court of Appeals of Alaska. Nov. 25, 1988. Phillip Paul Weidner, Drathman & Weid-ner, and William P. Bryson, Anchorage, for appellants. Cynthia M. Hora, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellees. Before SINGLETON, J., COMPTON, Justice, and GREENE, Superior Court Judge.* Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

3106

19200

OPINION GREENE, Judge. Attorney Phillip Paul Weidner was ordered to pay $4,650.00 as sanctions for alleged violations of court orders during his trial defense of the defendant in State v. Stump/. During the three-month trial in State v. Stump/, there were numerous incidents which led the trial judge, J. Justin Ripley, to admonish or sanction Weidner for violating court orders. There were at least eight such incidents prior to the time that the court began imposing monetary sanctions. The sanctions generally increased in amount as the trial continued. .The first imposition of a sanction was under the authority of AS 09.50.010(5) for direct contempt. The remaining sanctions were imposed under Alaska Civil Rule 95(b). Weid-ner has appealed the sanctions; he challenges the jurisdiction of this court to hear this matter, alleges he received inadequate notice of the violations, contends that he was improperly denied a hearing and the right to counsel, and asserts that the trial court's actions improperly infringed on his client's constitutional rights. EQUAL PROTECTION/JURISDICTION Weidner first argues that requiring him to bring his appeal in this court, rather than directly to the Alaska Supreme Court, denies him equal protection of the law under both the United States and Alaska Constitutions. U.S. Const, amend. XIV, § 1; Alaska Const, art. I, § 1. This claim is based on the fact that attorneys who are sanctioned in civil cases appeal directly to the supreme court, while attorneys who are sanctioned in criminal cases must first appeal to this court. Compare Stephenson v. Superior Court, 697 P.2d 653 (Alaska 1985), with Weidner v. Superior Court, 715 P.2d 264 (Alaska App.1986). Equal protection analysis under Alaska law differs somewhat from the federal test. Therefore, Weidner's federal and state claims will be examined separately. Under the federal standard, legislation which treats similarly situated people differently is only subjected to heightened scrutiny if it relies on suspect classifications or burdens rights deemed fundamental. See Clements v. Fashing, 457 U.S. 957, 962-73, 102 S.Ct. 2836, 2843-49, 73 L.Ed.2d 508 (1982). Where that is not the case, the classification need only bear a rational relationship to a legitimate goal. Id. at 963, 102 S.Ct. at 2843-44. The United States Supreme Court has never held the right to pursue a particular occupation a fundamental right for equal protection purposes under the United States Constitution. The Supreme Court has applied only the rational relationship test in resolving equal protection challenges to regulations on the legal profession. See, e.g., Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957). The federal courts also apply the rational relationship test in addressing equal protection challenges to regulations affecting other professions. See Iacobucci v. City of Newport, 785 F.2d 1354, 1355-57 (6th Cir.1986), rev'd on other grounds, 479 U.S. 92, 107 S.Ct. 383, 93 L.Ed.2d 334 (1986); Lowrie v. Goldenhersh, 716 F.2d 401, 408-09 (7th Cir.1983); Pollard v. Cockrell, 578 F.2d 1002, 1012 (5th Cir.1978). The Alaska legislature established the court of appeals in 1980 exclusively to hear criminal appeals. AS 22.07.020. The creation of the court of appeals served two purposes: (1) it ensured that the state court system had adequate resources to resolve the volume of appeals with which it is faced; and (2) it established an appellate court with an expertise and specialized body of knowledge in criminal matters which enables it to efficiently resolve criminal appeals. These are legitimate legislative purposes. Requiring that an attorney sanctioned in criminal proceedings first present an appeal to the court of appeals is rationally related to these defined goals. The court of appeals has original jurisdiction to hear appeals from criminal proceedings. There is no appeal as of right from a criminal matter to the supreme court. AS 22.07.-020; AS 22.05.010(b). The court of appeals therefore has primary responsibility for resolving legal issues which arise in criminal proceedings. It reasonably follows that the court of appeals has developed familiarity with the normal course of criminal proceedings in this state. As the question of whether a given action merits sanction depends on the specific facts of a particular case, a sanctioned attorney will likely benefit from the court of appeals' specialized knowledge of standard practice in criminal matters in courts of this state. Additionally, as the court of appeals has primary responsibility for establishing the controlling policies in criminal proceedings, it is rational to give this court primary responsibility for determining what practices are acceptable in those proceedings. Weidner has not established a violation of federal equal protection rights. Weidner's claim under the state constitution fails for similar reasons. The Alaska Supreme Court has held that there is no fundamental right to pursue a specific occupation without hindrance. See Hilbers v. Anchorage, 611 P.2d 31, 40 (Alaska 1980); Commercial Fisheries Entry Comm'n v. Apokedak, 606 P.2d 1255, 1262 (Alaska 1980). In resolving equal protection challenges brought under the Alaska Constitution, our courts apply a single standard involving a comprehensive examination of the circumstances. The statute's purpose must be legitimate; the means chosen to attain that purpose must substantially further that purpose; and the state's interest in the method chosen must be balanced against the right infringed. See Apokedak, 606 P.2d at 1264; State v. Erickson, 574 P.2d 1, 12 (Alaska 1978). Under this standard, Weidner's state equal protection challenge also fails. The statutory purpose and the means to attain the purpose, as discussed above, are reasonable exercises of legislative authority. The fact that sanctions in criminal cases are reviewed as a matter of right by three members of the appellate bench instead of five does not require a different determination. Under the system of appellate practice created by the legislature, the only difference between the procedures applicable to a civil-law practitioner who has been sanctioned and a criminal-law practitioner who has been sanctioned is the court of first review. The Alaska Supreme Court retains ultimate jurisdiction over matters of attorney admission and discipline. Any party who contends that any decision of this court regarding sanctions violates some general policy of the supreme court may present that argument through a petition for hearing. The Alaska Supreme Court, with its authority to grant discretionary hearing, is able to ensure that the decisions of this court are consistent with its policies and that no decision of this court regarding sanctions interferes with its powers to regulate the practice of law and attorney conduct. ALLEGED INVALIDITY OF COURT ORDERS Weidner alleges that several of the sanctions imposed were improper because the underlying orders were invalid. He argues that obeying them would have entailed violating various of his client's constitutional rights. The validity of a court's order is not at issue in reviewing criminal contempt or sanctions under Civil Rule 95. Where a court has proper jurisdiction, its orders must be obeyed. A person may be punished for criminal contempt for violating a court's orders even if those orders are later found invalid. See Maness v. Meyers, 419 U.S. 449, 458-60, 95 S.Ct. 584, 590-92, 42 L.Ed.2d 574 (1975); United States v. United Mine Workers of America, 330 U.S. 258, 293-94, 67 S.Ct. 677, 695-96, 91 L.Ed. 884 (1947). This rule has particular application to orders issued during a trial. See Maness v. Meyers, 419 U.S. at 459, 95 S.Ct. at 591. The trial judge must have the power to ensure that the proceedings are orderly and progress towards a conclusion. While counsel is entitled to establish an appellate record, that right does not include the right to violate the court's orders. If a trial judge errs, counsel must look to the appellate courts for relief from the order; counsel may not disregard or disobey the court's orders. Weidner was not entitled to disobey the court's orders because he believed them incorrect. ADEQUACY OF THE NOTICE AND HEARING Weidner contends that he should have been given a post-trial hearing at which to defend himself against the contempt charges and that he received inadequate notice of which orders he allegedly violated. Judge Ripley imposed sanctions for direct contempt and additional sanctions under Alaska Civil Rule 95(b). The analysis differs based on the authority for the sanction. No separate hearing is required where the sanction is imposed for actions constituting direct contempt committed in court in the trial judge's presence. See Weaver v. Superior Court, 572 P.2d 425, 429-30 (Alaska 1977); Alaska R.Civ.P. 90(a). On July 28, Judge Ripley specifically found Weidner in direct contempt and immediately imposed the penalty. Therefore, no hearing was required on that fine. Additionally, having reviewed the record, we find that notice was adequately given. The other sanctions imposed in this case were imposed under authority of Alaska Civil Rule 95(b). Alaska Civil Rule 95(b) provides: In addition to its authority under (a) of this rule and its power to punish for contempt, a court may, after reasonable notice and an opportunity to show cause to the contrary, and after hearing by the court, if requested, impose a fine not to exceed $500.00 against any attorney who practices before it for failure to comply with these rules or any rules promulgated by the supreme court. The rule applies in criminal matters. Weidner, 715 P.2d at 265. Although Alaska Civil Rule 95(b) requires that a sanctioned attorney receive a hearing, the amount of notice, the amount of time for the attorney to prepare, and the extensiveness of the hearing required depend on the facts of the case. Where the facts are straightforward and there is no showing that a more extensive hearing is necessary to present other evidence, a brief hearing on short notice may satisfy Alaska Civil Rule 95(b) requirements. Stephenson, 697 P.2d at 655-57. The trial court has considerable discretion in determining the time of the hearing under Alaska Civil Rule 95(b). In this case, having reviewed the record, we conclude that the trial court did not abuse its discretion in requiring imme diate hearings on these matters. In the present case, all of the sanctions imposed were imposed for in-court violations of Judge Ripley's orders. In almost every case, the sanctions were imposed for Weid-ner's persisting in behavior which the court warned him was improper. In each instance in which sanctions were imposed, Judge Ripley explained why he was considering imposing sanctions and offered Weid-ner the opportunity to explain his actions. Most of the sanctions were imposed either for violations of the court's order to make prior application before questioning witnesses regarding prior bad acts or for questioning in prohibited areas. If Weid-ner had a good faith basis for his questions, or a valid reason for violating the court's restrictions, those justifications should have been presented at the time sanctions were proposed. There was, therefore, no need for a separate post-trial hearing. A review of each instance in which a sanction was imposed reveals that in almost all cases the trial court did not abuse its discretion in imposing sanctions and was not clearly erroneous in its findings. However, in our judgment, three incidents require further proceedings in the trial court. JURY TRIAL Weidner argues that he was entitled to a jury trial prior to the imposition of any of these sanctions. Clearly, he was not entitled to a jury trial prior to the imposition of sanctions under Alaska Civil Rule 95(b). See Weidner, 715 P.2d at 268. This necessarily follows from the fact that imprisonment is not authorized as a penalty for Alaska Civil Rule 95(b) violations. While a jury trial is required when incarceration is a potential punishment for an allegedly contemptuous act, a simple hearing is adequate when there is no threat of imprisonment. Wood v. Superior Court, 690 P.2d 1225, 1233 (Alaska 1984), overruled on other grounds in DeLisio v. Superior Court, 740 P.2d 437, 439 (Alaska 1987); Weaver v. Superior Court, 572 P.2d 425, 431 (Alaska 1977); Continental Insurance Cos. v. Bayless and Roberts, Inc., 548 P.2d 398, 407 (Alaska 1976); Weidner, 715 P.2d at 268-69. The analysis with respect to the single instance where Judge Ripley utilized his contempt powers differs from that applied to Civil Rule 95(b) situations. Whether a contemner is entitled to a jury trial turns on whether the purpose of the contempt proceeding is punitive (criminal) or merely coercive (remedial). Continental, 548 P.2d at 405. If the proceeding is merely coercive then no jury trial is required because the contemner, even if incarcerated, holds the key to the cell in his or her pocket. E.L.L. v. State, 572 P.2d 786, 789 (Alaska 1977). See Johansen v. State, 491 P.2d 759, 764 (Alaska 1971). In contrast, if the purpose of the contempt proceeding is punitive (criminal) then the next step is to ask whether incarceration is a possible sanction. If the answer is yes, then a jury trial is required. See, Continental, 548 P.2d at 405, 407. See also DeLisio v. Superior Court, 740 P.2d 437, 439 (Alaska 1987). On July 28, Judge Ripley found Weidner in direct contempt of his order to move on to other areas in cross-examining a witness, Trooper Olson, and imposed a fine of $100. Although Judge Ripley's comments illustrated a desire to deter future misconduct, the purpose of the sanction was clearly punitive. Although the court was proceeding in criminal contempt, Weidner was not entitled to a jury trial. At the beginning of the hearing regarding the alleged contempt, the trial court specifically informed Weid-ner that "the issue [was] monetary sanctions and how much." Thus, there was no possibility of incarceration. See Johansen, 491 P.2d at 766 n. 27 (whether criminal penalties may be imposed should be made clear at the outset of a contempt proceeding). Under AS 09.50.020, contempt under AS 09.50.010(5) for disobedience of a lawful court order may be punishable by a fine of not more than $300 or by imprisonment of not more than six months only when a right or remedy of a party to an action or proceeding was defeated. In all other instances, such contempt is punishable by a fine not to exceed $100. Judge Ripley was obviously proceeding under the latter remedy. We conclude that the potential $100 fine in this case was not so heavy that Weidner was entitled to a jury trial. Resek v. State, 706 P.2d 288, 291-93 (Alaska 1985). We also conclude that Weidner was aware from the outset that potential fines would not be so large that a jury determination would be required. See Wood, 690 P.2d at 1232-33. Weidner was not subject to incarceration nor a fine in an excessive amount; he had no right to a jury trial for his direct contempt. JUDICIAL CHALLENGE Weidner argues that he should have been afforded a hearing before another judge on the question of sanctions. An individual facing imposition of sanctions such as these is not entitled to a change of judge as a matter of right. Where the totality of circumstances indicates that the judge is prejudiced against counsel, counsel has the right to challenge the judge for cause. Weidner, 715 P.2d at 269. Weid-ner has not established a basis for a cause challenge. The imposition of sanctions is AFFIRMED, in part, and REMANDED, in part, to the superior court for further proceedings consistent with this opinion. BRYNER, C.J., and COATS, J., not participating. . The sanctions were imposed as follows: July 28 $100 & $400 August 2 $100 & $100 August 16 $100 August 17 $500 August 24 $100 August 26 $250 September 6 $500 September 13 $500 September 14 $500 September 21 $500 & $500 & $500 . Stumpfs merit appeal was decided in Stumpf v. State, 749 P.2d 880 (Alaska App.1988). That opinion may be consulted for additional facts regarding this case. . On August 16, Judge Ripley imposed a $100 sanction for an alleged violation of his order requiring court approval before certain "bad acts" evidence was introduced. During the cross-examination of Dr. Probst, Weidner asked about the consistency of "heavy use of opium" with a finding in the autopsy of Mr. Yi, the victim. Weidner defended based on the fact that the order went only to witnesses and Yi was not a witness. The court's comments indicate its erroneous belief that the order was applicable beyond "witnesses." The state argues that the question violated Alaska Evidence Rule 404(a)(2)(i) and thus the sanction should be affirmed. However, it is not clear whether Judge Ripley would have imposed a sanction for violation of that provision rather than his order. Judge Ripley should consider that question in the first instance. On August 24, the court imposed a $100 sanction for asking a witness if she had been known as "Crazy Annie." The state applied for sanctions based on a violation of the 'bad acts" order and Weidner's defense, to the extent one was raised, addressed that issue. While the trial court found no violation of the 'bad acts" order, the trial court imposed sanctions for "degrading" the witness in violation of the rule which requires that questions not harrass or intimidate witnesses. Given these facts, Weidner was not given reasonable notice of the alleged violation. On September 13, the court imposed a $500 sanction for asking the witness Andreas, without prior permission of the court, about his possession of burglary tools. Weidner requested permission to review the record because he thought "that was a pending charge." In light of the fact that the court's order specifically excepted "the existence of criminal charges currently pending against a witness" from its application, it was error to deny Weidner an opportunity to check the record and prepare his defense to the sanction. . In DeLisio, the court stated: "While it is true that a jury trial may be required when considering a criminal contempt, incarceration, per se, does not make the contempt criminal. '[T]here is no right to a jury trial in a civil contempt proceeding when the sole purpose of the proceeding is to compel the contemner to perform some act that he or she is capable of performing.' " 740 P.2d at 439 (citations omitted).

10471915

Stewart R. IRVING, Appellant, v. Floyd B. BULLOCK, Jr., Appellee

Irving v. Bullock

1976-05-10

No. 2132

1184

1190

549 P.2d 1184

549

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:47:26.628215+00:00

CAP

Before BOOCHEVER, C. J. and RABI-NOWITZ, CONNOR, ERWIN and BURKE, J.

Stewart R. IRVING, Appellant, v. Floyd B. BULLOCK, Jr., Appellee.

Stewart R. IRVING, Appellant, v. Floyd B. BULLOCK, Jr., Appellee. No. 2132. Supreme Court of Alaska. May 10, 1976. Robert M. Libbey and Douglas J. Ser-dahely, Libbey and Serdahely, Anchorage, for appellant. Irving S. Bertram and Richard O. Gantz, Hughes, Thorsness, Lowe, Gantz and Powell, Anchorage, for appellee.

2977

17788

OPINION Before BOOCHEVER, C. J. and RABI-NOWITZ, CONNOR, ERWIN and BURKE, J. BURKE, Justice. Stewart R. Irving, appellant, filed an action in superior court against Floyd B. Bullock, Jr., appellee, and John Hett, for damages to his automobile and personal injuries suffered in two separate rear end collisions. At trial, the amount of damages and the allocation of damages between the defendants were hotly contested. The jury rendered a verdict against Bullock for $7,153.45, and against Hett for $315.28. Irving filed this appeal, alleging error in certain instructions given to the jury, in the trial court's denial of his motion for a new trial, and in the court's award of attorney's fees. On December 24, 1969, Bullock collided with Irving causing some damage to Irving's car. Shortly after the collision Irving began to suffer from coughing, headaches, numbness in the fingers of one hand, and pain in his neck, chest and shoulders. On June 4, 1970, Hett collided with Irving, again damaging Irving's car. Thereafter, Irving's physical symptoms were aggravated for a short period of time. Due to pain, Irving did not work from the time of the first collision until April, 1971. He continued to suffer from pain and other symptoms, although to a lesser extent, until he underwent an operation for carpal tunnel syndrome (thickening of a nerve in the wrist) in March of 1973. Thereafter, his recovery was rapid. I JURY INSTRUCTIONS Irving contends that two instructions on the duty to prevent the aggravation of in juries and to accomplish healing were erroneously given, since there was no evidence to support them. We hold that there was sufficient evidence to support the giving of the instructions. It appears that many of Irving's symptoms were related to his carpal tunnel syndrome; in any case, these symptoms disappeared after the operation on his wrist. The carpal tunnel syndrome was first diagnosed in March, 1971. Irving testified that the operation to correct that condition had been suggested to him at that time and again later by another doctor. Although the operation is a relatively simple one, with a good record of success, Irving did not submit to surgery until March, 1973. Given this evidence, an instruction on the duty to use reasonable diligence to care for one's injuries was not improper. The instruction also allowed the jury to consider the possibility that Irving behaved reasonably in waiting to have the operation. Irving also argues that the giving of Instruction No. 40 instead of his proposed instruction was error. Instruction No. 40 sets out the rule that a person with a pre-existing condition or disability who suffers an injury may recover damages for the aggravation of the condition, even though a healthy person would not have suffered such damage, but may not recover damages for the condition as it existed prior to the injury. We believe that the instruction is a sound statement of the law, and we are unable to find more than a semantic difference between that instruction and Irving's proposed instruction on the same topic. It is Irving's further contention that there was no basis in the evidence for this instruction. However, Irving admittedly suffered from some condition or disability when he was hit by Hett, some months after his collision with Bullock, and the instruction was proper in order to give the jury some way to determine the damages to be assessed against Hett. It also appears from the record that Irving had degenerative changes in his cervical spine which appeared in his X-rays. This condition is quite common in older men, and does not necessarily cause pain, although an accident may aggravate it. Irving did suffer neck pain after the first accident, which gradually faded until it was no longer a problem at the time of his carpal tunnel operation. The jury could have reasonably inferred that Irving's neck pain resulted from an aggravation of his neck condition, and an instruction on the law in this area was therefore appropriate. Irving's final objection to Instruction No. 40 is that it failed to put the burden of proof upon the defendant to show what portion of the damages resulted from the pre-existing condition. We do not decide this issue as it was not raised at trial; the objection made to Instruction No. 40 at trial concerned only the lack of a factual basis for the instruction. There must be plain error before this court will review the propriety of giving- an instruction where no objection was made at trial. II MOTION FOR NEW TRIAL Irving alleges as error the trial judge's denial of his motion for a new trial on the grounds that the jury failed to award him damages for pain and suffering. This court has held that the granting of a new trial lies within the discretion of the trial court, and that its decision on such a motion will only be reversed "in the most exceptional circumstances and to prevent a miscarriage of justice." That is not the situation here. Irving correctly points out that under Walker v. Alaska Road Commission, 388 P.2d 406 (Alaska 1964) and Morrison v. State, 516 P.2d 402 (Alaska 1973), a verdict which does not include damages for pain and suffering where there is substantial and uncontroverted evidence of such pain and suffering is inconsistent and inadequate. In those cases, however, the damages were determined by judges, and the lack of an award for pain and suffering was clear on the record. Here, Irving has failed to show that the jury verdict in fact did not include damages for pain and suffering. There is nothing in the amount of the verdict or on its face which indicates that these damages were omitted. Irving's argument rests entirely upon five affidavits from jurors saying that the jury did not award such damages. This court has repeatedly said that it will not consider juror affidavits for the purpose of impeaching the jury verdict, except in cases of fraud, bribery, or other obstructions of justice. Nothing of that nature appears here, so we disregard the affidavits. Irving also argues that the verdict was "patently inadequate" in amount,- failing to compensate him for proven damages. This point was not raised below in the motion for a new trial, or on appeal in the statement of points on appeal, and therefore we do not consider it. Ill . ATTORNEY'S FEES Irving's final claim of error concerns the award of attorney's fees and the interaction of Rules 68 and 82, Alaska Rules of Civil Procedure. Irving filed suit against Bullock and Hett in November, 1971. On April 3, 1973, Hett filed an offer of judgment for $1,000, which was not accepted. On April 26, 1973, Bullock filed a $10,000 offer of judgment, which was superseded by a $15,000 offer filed the next day; neither was accepted. On June 4, 1973, after eight days of trial, the jury returned verdicts which were less than the offers of judgment. Using the non-contested figures in Rule 82, the trial court awarded Irving attorney's fees of $865.35 against Bullock and $47.39 against Hett, for the period of time preceding the offers of judgment. He awarded $6,500 to each defendant for the periods after their offers of judgment. Thus, exclusive of costs, Irving was to receive $8,018.80 from Bullock, while paying him $6,500, leaving a net of $1,518.80. While this court has left the award of attorneys' fees in the trial court's discretion, and the exercise of that discretion will not be disturbed unless manifestly unreasonable, we hold that there was error in this case. It appears that the imbalance in fee awards resulted from too strict an interpretation of Rule 68, Alaska Rules of Civil Procedure, pertaining to offers of judgment. The purpose of Rule 68 is to encourage settlement; it requires a plaintiff who recovers less than the defendant's rejected offer of judgment to forego costs, including attorney's fees, for the. period after the offer of judgment, and to pay the defendant's costs for that period. Since offers of judgment must be made more than ten days before trial, a plaintiff who rejects an offer of judgment will always risk the substantial fees resulting from trial. The harshness of the penalty incurred by the plaintiff who does not recover more than the offer of judgment is mitigated somewhat by our decision in Ja-koski v. Holland, 520 P.2d 569 (Alaska 1974), which held that attorney's fee awards under Rule 68, like those under Rule 82, are to partially compensate the prevailing party. Here it appears that radically different standards of partial compensation were applied to plaintiff and defendant. Irving's attorney became involved with the case in January, 1970; he engaged in vigorous discovery, participating in ten depositions before Bullock's offer of judgment. His affidavit showed that he spent approximately 300 hours on the case up to the offer of judgment. The trial judge expressly found that the case was unusually complex, and that the parties had litigated in good faith, yet he awarded $865.35 to Irving against Bullock, while Bullock received $6,500 in fees for a five-week period including eight days of trial and one deposition. His attorney submitted an affidavit claiming $7,661 in fees. While we do not ask that plaintiffs and defendants in this situation each be awarded the same percentage of their claims for attorney's fees, we do remand this part of the case for a more balanced disposition of the claims for fees. In circumstances like these, where it appears that the trial court applied radically different standards of partial compensation in awarding attorney's fees to the parties, we will consider such awards to be an abuse of discretion absent findings or an explanation by the trial court supporting such disparate treatment. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. . Irving's appeal as to Hett has been dismissed due to settlement. . Instruction No. 38: It is the duty of any person who has been injured to use reasonable diligence and reasonable means under the circumstances in order to prevent the aggravation of such injuries to mitigate his damages and to effect a recovery. Instruction No. 41: It is the duty of a person who has been injured to use reasonable diligence in caring for his injuries and reasonable means to prevent their aggravation and to accomplish healing. When one does not use reasonable diligence to care for his injuries, and they are aggravated as a result of such failure, the liability, if any, of another whose act or omission was a proximate cause of the original injury, must be limited to the amount of damage that would have been suffered if the injured person himself had exercised the diligence required of him. From the mere fact that a competent physician advised an injured person to submit to a course of treatment or operation we are not justified in inferring that the injured person was negligent or unreasonable in declining such treatment or operation. Other factors as they confronted the injured person must be considered in determining whether, although he refused to follow the physician's advice, he nevertheless exercised reasonable diligence in caring for himself and his injuries. . Restatement of Torts (Second) § 9.8; McCormick on Damages § 36 (1935). . Instruction No. 46: A person who has a condition or disability at the.time of an injury is not entitled to recover damages therefor. However, he is entitled to recover damages for any aggravation of such preexisting condition or disability proximately resulting from the injury. This is true even if the person's condition or disability made him more susceptible to the possibility of ill effects that [sic] a normally healthy person would have been, and even if a normally healthy person probably would not have suffered any substantial injury. Where a preexisting condition or disability is so aggravated, the damages as to such condition or disability are limited to the additional injury caused by the aggravation. .Rule 51(a), Alaska Rules of Civil Procedure, provides in part: No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds for his objection. . Nordin Construction Company v. City of Nome, 489 P.2d 455, 471 (Alaska 1971) ; Merrill v. Faltin, 430 P.2d 913, 917 (Alaska 1967). . Sloan v. Atlantic Richfield Company, 541 P.2d 717 (Alaska 1975) ; Holiday Inns of America, Inc. v. Peck, 520 P.2d 87, 90-91 (Alaska 1974) ; Fruit v. Schreiner, 502 P.2d 133, 144 (Alaska 1972) ; Ahlstrom v. Cummings, 388 P.2d 261, 262 (Alaska 1964). . See Shaw v. Browning, 59 Wash.2d 133, 367 P.2d 17, 19 (1961) ; Thompson v. Iannuzzi, 403 Pa. 329, 169 A.2d 777 (1961) ; Mosley v. Dati, 363 Mich. 690, 110 N.W.2d 637, 638 (1961). It is suggested that the verdict against Hett matches the amount of an estimate of damage to the car, thus indicating a failure to award pain and suffering damages ; no such allegation is made about the verdict against Bullock. .Since Hett is not a party to this appeal, what the verdict on its face reveals as to damages awarded against Hett is irrelevant. . The trial judge expressly gave the attorneys for the parties permission to speak to the jurors after trial. . Des Jardins v. State, Op. No. 1245 (Alaska 1976) ; Martinez v. Bullock, 535 P.2d 1200 (Alaska 1975) ; Gafford v. State, 440 P.2d 405, 418-419 (Alaska 1968) ; Watson v. State, 413 P.2d 22, 24 (Alaska 1966) ; West v. State, 409 P.2d 847 (Alaska 1966). We have noted a significant number of recent appeals in which juror affidavits have been used in attempts to impeach the jury verdicts for reasons other than those set out above. It may be proper for counsel to in-interview jurors for educational purposes or for discovery of an obstruction of justice. However, interrogation of jurors for the purpose of discovering "errors" which are not grounds for impeaching the verdict deprives jurors of the protection from harassment which the rule seeks to give them. See Code of Professional Responsibility, DR 7-108, EC 7-29, 7-31. The Ninth Circuit Court of Appeals has declared it unethical even to interview jurors about the course of their deliberations. Northern Pacific Railway v. Mely, 219 F.2d 199, 202 (9th Cir. 1954). Henceforth, an attorney wishing to obtain evidence concerning the behavior of jurors in the performance of their duty should first file a motion in the trial court for leave to do so, stating in detail the reasons therefore. The trial court shall weigh such applications with great care, granting leave to make such an inquiry only where it appears that there is a strong likelihood that an obstruction of justice may have occurred. If the motion is granted, the court shall specify the manner in which -such evidence to be obtained. . Hootch v. Alaska State-Operated School System, 536 P.2d 793, 808, n. 58 (Alaska 1975) ; Miller v. City of Fairbanks, 509 P.2d 826, 829 (Alaska 1973) ; Moran v. Holman, 501 P.2d 769, 770, n. 1 (Alaska 1972). . Rule 68, Alaska Rules of Civil Procedure, provides in part: At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the of-feree must pay the costs incurred after the makipg of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. . .Rule 82, Alaska Rules of Civil Procedure, provides in part: (a) Allowance to Prevailing Party as Costs. (1)Unless the court, in its discretion, otherwise directs, the following schedule of attorney's fees will be adhered to in fixing such fees for the party recovering any money judgment therein, as part of the costs of the action allowed by law: ATTORNEY'S FEES IN AVERAGE CASES Contested Without Trial Non-Contested First $2,000 25% 20% 15% Next $3,000 20% 15% 12.5% Next $5,000 16% 12.5% 10% Over $10,000 10% 7.5% 5% Should no recovery be had, attorney's fees-for the prevailing party may be fixed by the court as a part of the costs of the action, in its discretion, in a reasonable amount. . (2) In actions where the money judgment is not an accurate criteria for determining the fee to be allowed to the prevailing side, the court shall award a fee commensurate with the amount and value of legal services rendered. (3) The allowance of attorney's fees by the court in conformance with the foregoing schedule is not to be construed as fixing the fees between attorney and client. . Before settlement, as a result of the award of $6,500 attorney's fees, Irving's net obligation to Hett was $4,613.53. . Western Airlines, Inc. v. Lathrop Company, 535 P.2d 1209 (Alaska 1975) ; Grasle Electric Company v. Clark, 525 P.2d 1081 (Alaska 1974) ; Palfy v. Rice, 473 P.2d 606 (Alaska 1970). .See Malvo v. J. C. Penney Co., Inc., 512 P.2d 575 (Alaska 1973).

10459327

FIRST NATIONAL BANK OF FAIRBANKS, Appellant, v. Warren ENZLER and Dorothy J. Enzler, Appellees; Howard D'SPAIN, Trustee in Bankruptcy, Appellant, v. Warren ENZLER and Dorothy J. Enzler, Appellees

First National Bank of Fairbanks v. Enzler

1975-08-22

Nos. 2181, 2182

80

82

539 P.2d 80

539

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:47:44.124389+00:00

CAP

Before RABINOWITZ, C. J., and CONNOR and BOOCHEVER, JJ.

FIRST NATIONAL BANK OF FAIRBANKS, Appellant, v. Warren ENZLER and Dorothy J. Enzler, Appellees. Howard D’SPAIN, Trustee in Bankruptcy, Appellant, v. Warren ENZLER and Dorothy J. Enzler, Appellees.

FIRST NATIONAL BANK OF FAIRBANKS, Appellant, v. Warren ENZLER and Dorothy J. Enzler, Appellees. Howard D’SPAIN, Trustee in Bankruptcy, Appellant, v. Warren ENZLER and Dorothy J. Enzler, Appellees. Nos. 2181, 2182. Supreme Court of Alaska. Aug. 22, 1975. Saul R. Friedman and John W. Hedland, of Rice, Hoppner & Hedland, Anchorage, for appellant First National Bank of Fairbanks. William M. Erwin, Anchorage, for appellant Howard D’Spain. Richard F. Lytle, of Houston & Lytle, Anchorage, for appellees. Before RABINOWITZ, C. J., and CONNOR and BOOCHEVER, JJ.

808

4886

BOOCHEVER, Justice. The First National Bank of Fairbanks has petitioned for a rehearing contending that we have upheld the trial court's finding of no intent to defraud without regard of the fact that we had invalidated the supporting premises that the trial court used to build up to the ultimate finding. Petitioner alleges that those premises are: (1) there was no debt owing at the time of the conveyance, and (2) the conveyance was for sufficient consideration. It is true that in the trial court's memorandum opinion there was a finding that no debt was due and owing at the time of the transfer of the property to the wife and that there was sufficient consideration passing from the wife to the husband for the property transferred to Mrs. Enzler. There were independent findings, however, that the transfer was "to prevent the husband from further dissipating the assets rather than as a sham" and that the presumption of AS 09.25.060 has been rebutted by the showing of a good faith transfer. I find that there was no intent to defraud creditors, Blumenstein v. Phillips, 490 P.2d 1213 ([Alaska] 1971), therefore, no fraudulent conveyance. In the situation involved in this case, we held that there was no presumption of intent to defraud. In the absence of such a presumption, it would have been easier for the trial court to have found that there was no intent to defraud creditors, but even giving petitioner the benefit of the presumption, the court found that there was no intent to defraud. Our reading of the entire memorandum opinion leaves us with the clear understanding that the trial court found an absence of fraudulent intent independent of the findings pertaining to an absence of debt and sufficient consideration. Blumenstein v. Phillips Insurance Center, Inc., 490 P.2d 1213 (Alaska 1971), upon which the trial court relied in reaching its conclusion of no fraudulent intent, requires a two-step analysis before such a result may be reached. The court must first determine that the presumption of fraud referred to in AS 09.25.060 is rebutted. If it is decided that the presumption is rebutted, the trial court must then make a finding based on all the facts as to whether there was an actual intent to defraud. The above-quoted portion of the lower court's memorandum opinion clearly indicates that the lower court took both of these steps and reached the conclusion that there was no actual intent to defraud. Since we are of the opinion that the lower court's finding as to the absence of fraudulent intent was not clearly erroneous and since no purpose would be served by a remand for reiteration of this finding, the petition for rehearing is denied. ERWIN, J., not participating. . See note 9 of opinion.

10473572

CITY OF ANCHORAGE, a municipal corporation, Cross-Appellant, v. Irma R. SCAVENIUS, Cross-Appellee; CITY OF ANCHORAGE, a municipal corporation, Appellant, v. PARK LANES, INC., et al., Appellees

City of Anchorage v. Scavenius

1975-08-21

Nos. 2214, 2222

1169

1180

539 P.2d 1169

539

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:47:44.124389+00:00

CAP

Before RABINOWITZ, C. J., CON-NOR and BOOCHEVER, JJ., and DIMOND, Justice Pro Tem.

CITY OF ANCHORAGE, a municipal corporation, Cross-Appellant, v. Irma R. SCAVENIUS, Cross-Appellee. CITY OF ANCHORAGE, a municipal corporation, Appellant, v. PARK LANES, INC., et al., Appellees.

CITY OF ANCHORAGE, a municipal corporation, Cross-Appellant, v. Irma R. SCAVENIUS, Cross-Appellee. CITY OF ANCHORAGE, a municipal corporation, Appellant, v. PARK LANES, INC., et al., Appellees. Nos. 2214, 2222. Supreme Court of Alaska. Aug. 21, 1975. David G. Shaftel, Asst. City Atty., John R. Spencer, City Atty., Anchorage, for cross-appellant and appellant. Helen L. Simpson, Anchorage, for cross-appellee. Michael M. Holmes, Juneau, and Leroy J. Barker, Anchorage, for amici curiae. No appearance for appellee Park Lanes, Inc. Before RABINOWITZ, C. J., CON-NOR and BOOCHEVER, JJ., and DIMOND, Justice Pro Tem.

6198

36948

BOOCHEVER, Justice. This appeal presents issues as to the award of costs and attorney's fees to the condemning authority in eminent domain cases. In the Scavenius case, the City brought an action to condemn easements for the construction, use and maintenance of a sanitary sewer line. A master's hearing resulted in an award of $516.00 from which the property owner appealed pursuant to Alaska R.Civ.P. 72(h)(5). Subse quently, the City served on the property owner an offer of judgment for $581.47 in accordance with Alaska R.Civ.P. 68. The offer of judgment was not accepted, and, eventually, the jury returned a verdict awarding no compensation. The City applied for an award of costs and attorney's fees which was denied by the trial judge. The property owner appealed from the judgment's failure to award compensation, and the City cross-appealed from the denial of its motion for attorney's fees and its application for a bill of costs. In the Park Lanes, Inc. case, the City of Anchorage filed an action to condemn permanent seven-foot-wide utility easements and temporary thirty-foot-wide construction easements for the placement of a water transmission main on three parcels of property owned by Park Lanes, Inc., John Peterkin and Gladys R. Peterkin. In addition to contesting the amount to be awarded as just compensation for the property taken, the property owners contended that pavement on part of their property not within the area condemned was damaged by the manner in which the water main was installed. [R. 158-60, 162-63, 167-71] As a result of a master's hearing, the property owners were awarded a total of $2,915.21, without any sum being allowed for pavement damage. The property owner appealed, and the jury returned a verdict for a lesser amount totalling $1,726.56, which, incidentally, was the exact amount contended by the City to be fair compensation. Again, no sum was allowed for the pavement damage claim. As in the Scavenius case, the trial court denied the City's motion for an award of attorney's fees and allowance of a bill of costs, and the City has appealed. We are thus confronted with three basic issues: 1. Is a condemnor entitled to an award of costs and attorney's fees when the property owner has unsuccessfully appealed a master's award? 2. Does Rule 68 pertaining to offers of judgment apply to an eminent domain case so as to justify an award of costs and attorney's fees to the City? 3. Is the City entitled to an award of costs and attorney's fees for the successful defense of the Park Lanes, Inc. claim pertaining to pavement damage ? I THE RIGHT OF A CONDEMNOR TO ATTORNEY'S FEES IN AN APPEAL FROM A MASTER'S AWARD On October 9, 1959, the newly-appointed Alaska Supreme Court ordered the adoption of Rules of Civil Procedure. Included in those rules was Rule 72 dealing specifically with eminent domain. Section (a) specifies: (a) The procedure for the condemnation of property under the power of eminent domain shall be governed by these rules, except as otherwise provided in this rule. The phrase "these rules" has been construed to refer to all the other rules of the Alaska Rules of Court Procedure and Administration. The phrase "except as otherwise provided in this rule" means that . Civil Rule 72 shall govern eminent domain proceedings. Where a specific procedure is not provided by Civil Rule 72, then any of the other rules of practice and procedure are available, to the extent that they may be applicable. Section (k) of Rule 72 provides that costs and attorney's fees incurred by the defendant (the property owner) shall not be assessed against the plaintiff (the con-demnor) unless: (1) the taking of the property is denied, or (2) the award of the court was at least ten (10) percent larger than the amount deposited by the condemning authority or the allowance of the master from which an appeal was taken, or (3) the action was dismissed under the provisions of subdivision (i) of this rule, or (4) allowance of costs and attorney's fees appears necessary to achieve a just and adequate compensation of the owner. Attorney's fees allowed under this subdivision shall be commensurate with the time committed by the attorney to the case throughout the entire proceedings. The section thus allows the award of costs and attorney's fees to the property owner subject to certain exceptions. It makes no provision for such an award to the con-demnor. It is the City's position first, that the general civil rules providing for an award of costs and attorney's fees to the prevailing party apply when the condemnor is successful in its defense of an appeal from a master's award. It argues that since no provision is made in Rule 72 for such an award to the condemnor, the procedure is covered by Civil Rule 54(d) as to costs and Civil Rule 82 as to attorney's fees. Alternatively, the City contends that Civil Rule 72 (k), by negative implication, authorizes an award of costs and attorney's fees to the condemnor when the con-demnee on appealing a master's award is unsuccessful in securing an increase of at least 10 percent. It is contended that public policy favors an approach whereby initially the property owner receives a free determination of just compensation, but that upon appeals, costs and attorney's fees are assessed in favor of the prevailing party. In Stewart & Grindle, Inc. v. State, we were confronted with an analogous problem. We, there, reversed a lower court's order denying an award of attorney's fees and appraiser's fees to a property owner— not a condemnor. We discussed the costs provision of Rule 72 as it could be invoked against the sovereign. The owners argued that, since the final settlement (after commencement of a master's hearing in one case and the master's award in the other) exceeded the state's initial offer by 10 percent, attorney's fees were proper under subsection (k)(2). Subsection (k) (2) specifies, however, that the court's award must exceed by 10 percent the amount deposited by the condemning party. Since the state had made no deposit, the amount awarded could not be 10 percent larger then the amount deposited. In rejecting this contention of the owners, we stated: Just as they have refused to assess interest against the state, courts have also traditionally declined to tax litigation expenses and attorney's fees against the sovereign in the absence of express statutory authority. Civil Rule 72(k)(2) specifies the conditions under which costs and attorney's fees are to be awarded; where these conditions remain unfulfilled the common law rule continues to govern. We thus held that we could not infer a right in the property owner to be awarded costs and attorney's fees in the absence of a specific provision in Rule 72(k). In the Stewart & Grindle case, the property owner's proposed reliance on the general civil rules was considered "misplaced", but it was rendered uncontrolling because subsection (k) (4) of Rule 72, which authorized an award of costs and attorney's fees when necessary to achieve a just and adequate compensation of the owner, specifically was found to entitle the owners to the award. We noted (on petition for rehearing) : > The portion of the opinion in question concerned the award of attorney's fees in condemnation cases. Since Rule 72 (k) (2) specifically provides for the circumstances under which such fees are to be awarded, the result of the opinion remains the same. The City argues that the decision in Stewart & Grindle should be restricted to mean only that Rule 72(k)(l)-(4) provides for awards to property owners and, therefore, reference to the general civil rules is precluded only with respect to awards to such owners. However, the interpretation of the rule posited by the City, albeit plausible, is too literal. A more persuasive interpretation consistent with the language of the rule and with this court's discussion of that rule in Stewart & Grindle is also available. That construction would view subsection (k) to be totally exclusive in regard to the allocation of costs and attorney's fees in a condemnation proceeding. The "except as otherwise provided in this rule" language of subsection (a) would be directly applicable. Rule 72 does provide for costs and attorney's fees to be awarded only to the property owner in a condemnation proceeding and only under certain narrowly-defined circumstances. Therefore, far from construing the silence as a license to invoke the general provisions regarding costs and attorney's fees, subsection (a) expressly prohibits allusion to the other civil rules when a specific eminent domain procedural rule is prescribed. Our opinion in Stewart & Grindle v. State interpreted Civil Rule 72(k) strictly and exclusively. When the conditions specified were not expressly met, costs could not be assessed against the condemn- or. Likewise, it would seem that since Rule 72 (k) fails to specify any conditions which would warrant imposition of costs against the property owner, the trial court did not err in refusing to authorize such an award. Moreover, additional problems are presented by the contention that the general civil rule provisions of Rule 82 should apply. Rule 72 (k) denies attorney's fees to the owner if his initial master's award does not exceed by 10 percent the amount deposited by the condemning authority. The City recognizes that the award of costs and attorney's fees to the condemning authority at the initial determination of compensation would be open to constitutional attack. Sec. 18 of art. I of the Alaska Constitution, like the fifth amendment to the United States Constitution, prohibits the taking of private property without just compensation. In Stewart & Grindle, we held that these constitutional provisions . . . [Ejntitle the property owner to be made whole for expenses necessarily incurred in connection with the condemnation of his property. Without such a rule, the State forces a property owner to pay a greater portion of the costs of a public project than any other taxpayer must pay by afflicting him with the unavoidable expenses of condemnation. Placing such a burden on the property owner is no more just than assessing a levy against him but no others. With reference to the City's argument that we may negatively infer the right to costs and fees in situations where Rule 72 (k) prohibits an award to the property owner, the City recognizes that reading such a negative implication with respect to subsections (k)(l) and (k) (3) would lead to ridiculous results. They thus would have us pick out one subsection, (2) of Rule 72(k), for application of the negative inference while admitting that no such inference may be made as to subsections (1) and (3). But singling out one subsection for a construction not to be given other subsections is contrary to the general rule whereby "each part or section should be construed with every other part or section so as to produce a harmonious whole. Thus it is not proper to confine interpretation to the new section to be construed". * It may well be that in certain situations, a clear legislative intent will be apparent requiring a specific interpretation of one section at variance with others. We do not find that this case presents a sufficient justification for reading an inference in one subsection, obviously not applicable to the others. To place the property owner in the position of having to risk payment of often substantial expenses incurred by the condemning authority for expert witnesses, other costs and attorney's fees, as well as his own expenses in order to secure even an initial adjudication of the amount to which he is entitled, would so chill the right to secure just compensation as to nullify the effectiveness of the constitutional provisions. Faced with the choice of incurring such expenses, many property owners would feel compelled to give up their right to seek adjudication of the amount of compensation to which they would be entitled and would accept any amount tendered by the condemnor. Recognizing that this effect that would follow either from permitting Rule 54(d) and 82 to allow the award of costs and attorney's fees to the prevailing party or holding that such costs and attorney's fees are allowable by implication from Rule 72 (k), the City would have us provide for "an initial 'free' determination of just compensation in the form of a 'master's' type of hearing". But none of the rules to which the City refers [Civil Rules 54(d), 82 and 72 (k)] made any such distinction. So, in effect, we are being asked to en-graft a provision on the rules in order to provide costs and fees to the City in appeals from master's awards. Another important argument favoring the owners in these cases is based upon the general rules of statutory construction and the specific constitutional limitation discussed above. The concluding sentence of Civil Rule 72 (k) states: Attorney's fees allowed under this subdivision shall be commensurate with the time committed by the attorney to the case throughout the entire proceedings. (emphasis added) As noted above, any rule which purports to shift the costs of the initial determination of the compensation award upon the owner would be unconstitutional. The quoted language expressly states that, when attorney's fees are awarded under the rule, they are determined based upon the counsel's time spent during the course of the entire proceeding including the master's hearing. The term "attorney's fees", therefore, must be meant to have reference only to those allowed an owner. Any other reading would be constitutionally infirm. Since "attorney's fees" as it is used in the rule is meant to apply only to an owner's- legal fees, it is likewise logical to assume that the term "costs" is used only to refer to an owner's costs since in Alaska, attorney's fees is merely a subcategory of the costs of a civil action. But this is not the only problem inherent in the City's argument. Civil Rules 54(d) and 82 provide for the award of costs and attorney's fees to the "prevailing party". In cases other than eminent domain, a prevailing party is the one prevailing on the main issue, in whose favor the decision or verdict is rendered and the judgment entered. Given the special status of the condemnee, it would indeed be anomalous to single him out so as to require a more stringent test for him to become a prevailing party. Yet under Rule 72 (k), he must not only prevail but must secure an increase of more than 10 percent of the amount deposited or previously awarded. Such a requirement can only be equitable because of the concomitant advantage of not making the condemnee subject to costs and fees in the event of being unsuccessful. In promulgating Rule 72 (k) in its present form, the then members of the Alaska Supreme Court gave consideration to deterrence of unwarranted litigation. Such a consideration obviously fostered the requirement that the owner secure an increase over the amount deposited or previously awarded by 10 percent to be entitled to costs and attorney's fees. Thus, he and his attorney must calculate whether his claim warrants the out-of-pocket expenses which must be incurred as well as the time and effort which must be devoted to the particular proceeding. These considerations should result in preventing most frivolous appeals. We have not been presented with any statistical information as to whether most masters' hearings and jury appeals fail to result in increases from the amounts deposited or initially awarded. If the present rule is not suitably effective, consideration can be given to amending it, particularly with reference to frivolous appeals. In the absence of such amendment, however, we are not justified in awarding costs and attorney's fees in situations not specified in Rule 72(k). II THE OFFER OF JUDGMENT After the master's report ($516.00) had been filed and the pleadings amended, the City of Anchorage submitted an offer of judgment for $581.47 to Mrs. Scavenius which she did not accept. The City argues that, since the offer was submitted in accordance with Civil Rule 68 and since the judgment finally obtained was less favorable than the offer, it is entitled to costs incurred after the making of the offer of judgment. Much of what we have said in the previous section of this opinion applies to the applicability of Civil Rule 68. By Rule 72 (k), provision has been made for the allowance of costs and attorney's fees in condemnation cases. Therefore, under Rule 72(a), provisions in the other civil rules pertaining to costs and attorney's fees including Rule 68 would be inapplicable. The City itself recognizes that Rule 68 could not constitutionally be applied to the initial proceeding before the master. Otherwise, allowing the condemnor to make an offer of judgment at that stage could serve to prevent the property owner from risking even an initial adjudication of the amount of just compensation to which he is entitled because of fear of imposition of substantial costs and attorney's fees. Thus, it is clear that Rule 68 cannot apply in all cases. Moreover, in other circumstances, Rule 68 would be in conflict with Rule 72 (k). For example, if a property owner were to appeal a master's award of $10,000 and thereafter refuse to accept an offer of judgment of $12,000, under Rule 68, the condemnor would be entitled to the award of costs and attorney's fees if the jury awarded $11,500. Yet the master's award would be increased by more than 10 percent entitling the property owner to costs and attorney's fees under Rule 72(k). It is true that in Miklautsch v. Dominick, we held the provisions of Rule 68 applicable over the "prevailing party" concept of the general costs and attorney's fees provisions. But there we were not confronted with an¡ exclusivity provision such as that contained in Rule 72(a) which renders inapplicable all other inconsistent procedural rules. Here, the provisions of Rule 72 (k) specifically apply to costs and attorney's fees in eminent domain proceed-, ings. It is only where a specific procedure is not provided by Rule 72 that the other civil rules may come into play. This is not such a situation, and the court did not err in denying costs and attorney's fees under the provisions of Rule 68. Ill THE PAVEMENT DAMAGE ISSUE Prior to trial of the Park Lanes, Inc. case, the owners indicated that they were going to present a substantial claim for pavement damage which they alleged occurred at the time that the water main was installed. Consequently, the City moved for a protective order which would prevent consideration of the pavement damage claim at the trial, on the ground that such a claim alleged tort, rather than condemnation, damages. Alternatively, the City contended that the owners should at least be required to file a counterclaim, in tort, for such pavement damage. The court denied the City's application for the protective order. At the subsequent jury trial, one of the owners testified that the pavement of property, not within the easements taken,was damaged in the amount of $4,000 as a result of the manner in which the water main was installed. The City objected on the ground that this testimony concerned tort rather than condemnation damages, and that the owners had not filed a counterclaim alleging such a tort cause of action. The court overruled the objection, allowing the testimony as to the pavement damage. The City was thus required to secure the services of experts. They testified that the cause of damage in the parking lot was its poor foundation and not the construction work involved in the placement of the water main. The jury returned a verdict of no damages as to this claim, and the City appeals from the denial of its motion for allowance of attorney's fees and its bill of costs as to the defense of this claim. In this area, the question of whether a certain incidental damage claim should be considered part of the special condemnation proceeding turns on the nature of the incidental damage. When the damage to the remaining portion of the condemnee's tract necessarily results from the imposition of the easement or the proper construction of the improvement, then the claim may properly be considered an element of the property owner's damage due to the condemnation. When the damage claim is based upon the állegedly negligent construction of the improvement, however, any loss incurred cannot properly be considered a part of the taking. This is so because the date set forth by statute when the valuation of the owner's loss is to be measured is generally fixed at a time prior to the actual construction of the improvement. It is presumed that the con-demnor will build the called for improvement without negligence and the just compensation award is to be determined based on that assumption. If, in fact, the con-demnor's actions outside the inherent scope of the taking result in additional injury to the owner, he may be able to bring an action at law in tort against the condemnor. Nichols in The Law of Eminent Domain states: Ordinarily, allowance is made in a condemnation proceeding only for damage which will ensue as a result of the proper and legal construction and operation of the project. Thus, where damage will be inflicted as a result of necessary blasting during the course of construction, allowance therefor may be made in the condemnation proceeding. However, it is also assumed that the condemnor will take such necessary precautions in the construction of the project as to work a minimum of damage to adjoining property. Negligence. If the damage for which recovery is sought is the result of improper, unlawful or negligent construction or maintenance, recovery may not be had therefor in the proceeding. The owner is relegated in such case to a common-law action for damages. The City correctly points out that the aforesaid well-settled rule excluding consideration of tortious injuries from condemnation damages is incorporated into AS 09.55.310(a). Subsection 2 of AS 09.-55.310(a) provides that in cases where only a part of a larger parcel is being taken, the jury must assess "the damages which will accrue to the portion not sought to be condemned by reason of its severance from the portion sought to be condemned, and the construction of the improvements in the manner proposed by the plaintiff". Obviously, the condemnor proposes or intends non-negligent construction in every case. The issue raised by the defendants concerning damages to the parking lot pavement was one involving a charge of negligent construction or negligent failure to properly repave the areas affected by the construction activity. Pursuant to the City's request, the trial court should have required the owners here to file a counterclaim in tort. In any event, the City emerged as the prevailing party in what proved to be a successful defense against an essentially common law action. Therefore, it violates neither the language nor the policy of Rule 72 (k) if costs and attorney's fees relating to that defense are awarded to the City in accordance with the general civil rules allocating such expenses in an ordinary civil suit. In Montana R. Co. v. Freeser, the Montana Supreme Court, interpreting statutes from which AS 09.55.310 and 330 were adopted, reached a result consistent with the City's present approach. That case involved a claim against a railroad by a landowner that improper construction of a road bed caused damage to his irrigation system. In reversing the trial court's allowance of condemnation damages on this claim, the court held: When damages are appraised prior to the construction of the improvements for which the land is condemned, the estimate should be made on the assumption that the improvements will be properly constructed; and, if they are constructed pending the condemnation proceedings, the rule under this statute should be the same. The actual effect of the properly constructed improvements in the manner proposed by plaintiff as to the larger parcels should control the appraisal. If the improvements are improperly or negligently constructed, no additional damage should be given for this reason. Thus as to the successful defense of the negligence claim, the general civil rules pertaining to the award of costs and attorney's fees apply. The trial court should have awarded costs to the City as to that claim. The court may, in its discretion, also award attorney's fees in a reasonable amount as a part of such costs. The case is remanded for assessment of costs and the exercise by the trial court of its discretion as to the allowance of attorney's fees. Affirmed in part, reversed in part and remanded. ERWIN, J., not participating. . The matter was ably briefed and argued by counsel for the City of Anchorage, but the condemnees filed no responding briefs. Due to the importance of the issues transcending the interests of the particular litigants, we ordered that an answering amicus curiae brief be prepared by private Alaska counsel. The City has filed a reply brief. . Alaska R.Civ.P. 68 specifies: At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the of-feree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days prior to the commencement of hearings to determine the amount or extent of liability. . The owner's appeal has been made the subject of a separate opinion in the case of Scavenius v. City of Anchorage, 539 P.2d 1161 (Alaska 1975). . The provisions of subsection 72 (k) of the rule, with which we are here principally concerned, were substantially amended in 1968. . State v. 1,163 Acres, More or Less, Chuckwm, Inc., 449 P.2d 776, 778 (Alaska 1968), quoted in Stewart & Grindle, Inc. v. State, on petition for rehearing, 524 P.2d 1242, 1251 (Alaska 1974). . Alaska R.Civ.P. 54(d) specifies: (d) Except when express provision therefor is made either in a statute of the state or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs. The procedure for the taxing of costs by the clerk and review of his action by the court shall be governed by Rule 79. .Alaska R.Civ.P. 82 states in part: (a) Allowance to Prevailing Party as Costs. (1) Unless the court, in its discretion, otherwise directs, the following schedule of attorney's fees will be adhered to in fixing such fees for the party recovering any money judgment therein, as part of the costs of the action allowed by law: Should no recovery be had, attorney's fees for the prevailing party may be fixed by the court as a part of the costs of the action, in its discretion, in a reasonable amount. (2) In actions where the money judgment is not an accurate criteria for determining the fee to be allowed to the prevailing side, the court shall award a fee commensurate with the amount and value of legal services rendered. . 524 P.2d 1242 (Alaska 1974). . Id. at 1249 (footnotes omitted). . Id. at 1251. . Id. at 1250 (footnote omitted). . 2 J. Sutherland, Statutes and Statutory Construction, § 4703, at 336-37 (3rd ed. Hor-ack 1943) (footnotes omitted). . The City cites three cases for support of its position that when a statute provides that the condemnor not be assessed costs of an appeal unless the condemnee secures an increased . award, there is an inference under which the condemnor may be awarded costs when the appraisal results in a lower compensation. The case of Kennedy v. Dept. of Roads & Irrigation, 150 Neb. 727, 35 N.W.2d 781 (1949), is in point, but the two Iowa cases cited are of little assistance to the City. In Noble v. Des Moines & St. L. R. Co., 61 Iowa 637, 17 N.W. 26 (1883), the jury's verdict reduced the owners' original compensation award. The applicable statute provided that the condemnor pay the costs of appeal "unless the damages allowed on appeal are less than the damages first allowed". The court held that since the owner had received less on appeal, the costs were not "all to be paid" by the condemnor. 17 N.W. at 28. The court concluded that the. costs were to be apportioned between the parties, essentially the same result as reached in the cases before us, where each party must .bear its own costs. Strange Bros. Side Co. v. Iowa State Highway Comm,., 250 Iowa 450, 93 N.W.2d 99 (1958), similarly construed the revised Iowa statute. Amicus curiae in their brief refer the court to In re Improvement of Third Street, 179 Minn. 258, 228 N.W. 925 (1930), and other cases cited in Annot., 50 A.L.R.2d 1386, 1414 (1956) for the general rule that where statutes governing eminent domain proceedings make no provision for costs under the circumstances presented, the court is without power to allow or impose costs. We find neither line of authority cited to us of controlling persuasiveness, but rest our decision on the rationale flowing from the particular provisions of the Alaska Rules of Civil Procedure and our prior decisions pertaining to them. .Amicus curiae suggest that in the Park Lanes, Inc. ease, the property owner rather than the condemnor should have been entitled to the award of costs and attorney's fees as the jury award, although less than that of the master, exceeded the amount originally deposited by more than 10 percent. We do not construe in that manner Rule 72 (k) (2)⅛ provision that the award be at least 10 percent larger "than the amount deposited by the condemning authority or the allowance of the master from which an appeal was taken". If an appeal is taken from the master's award, the owner must receive at least 10 percent more than the amount awarded by the master in order to be entitled to costs and fees. . Buza v. Columbia Lumber Co., 395 P.2d 511, 514 (Alaska 1964). . 4A Nichols, The Law of Eminent Domain, § 14.249, at 14-351 (Rev. 3rd ed. Saekman (1974). Accord, Stewart & Grindle, Inc. v. State, 524 P.2d 1242 (Alaska 1974). The owner of land taken by eminent domain stands in a far different position from a defendant in an ordinary suit. The latter has ordinarily brought the trouble upon himself, if he is liable at all, by breaking a contract or committing a tort, and it is only just that he should pay the costs of the legal proceedings. Condemnation proceedings, on the other hand, are brought against a man because he happens to own available land. .The result would be even more incongruous if we were to adopt the City's contention that the condemnor prevails, even though the award is increased to any sum less than the 10 percent figure. . In view of our construction of Rule 72 (k), we do not reach the issue of whether under the Alaska Constitution, imposition of costs of a jury appeal on the condemnee would violate his right to just compensation. See 4A Nichols, The Law of Eminent Domain § 14.-249 at 14-355, 14-363 to 14-365 (Rev. 3rd ed. Sackman 1974). . Set forth in note 2, supra. . Rule 72(a) is set forth at Page 1172, supra, and its applicability is discussed at Page 1172. . 452 P.2d 438 (Alaska 1969). . State v. 1,168 Acres, More or Less, Chuckwm, Inc., 449 P.2d 776, 778 (Alaska 1968). . AS 09.55.330 provides in part: For the purpose of assessing compensation and damages, the right to them accrues at the date of issuance of the summons, and its actual value at that date is the measure of compensation of the property to be actually taken, and the basis of damages to property not actually taken but injuriously affected in the cases where the damages are allowed. . 4A Nichols, The Law of Eminent Domain, § 14-245-14.245[1], at 14-243 to 24-248 (Rev.3rd ed. Sackman 1973) (footnotes omitted). . This court has previously held that prevailing government entities are entitled to awards of costs and attorney's fees to the same extent as any private litigant [pursuant to Rules 54(d) and 82], Kelly Supply Co., Inc. v. City of Anchorage, 516 P.2d 1206, 1211 (Alaska 1973) ; Jefferson v. City of Anchorage, 513 P.2d 1099, 1102 (Alaska 1973). .29 Mont. 210, 74 P. 407 (1903). . Id. at 408. See also Hollywood Baptist Church v. State Highway Dept., 114 Ga.App. 98, 150 S.E.2d 271 (1966) ; Ryan v. Davis, 201 Va. 79, 109 S.E.2d 409 (1959) ; Chavez v. City of Laramie, 389 P.2d 23 (Wyo.1964). . Costs are allowed as of course to the prevailing party. See note 6 quoting Alaska R.Civ.P. 54(d). . See Alaska R.Civ.P. 82(a) (1) quoted in note 7. Pamkratz, et al v. State, 538 P.2d 984 (Alaska 1975) ; Cooper v. Carlson, 511 P.2d 305 (Alaska 1973).

10473605

LOOMIS ELECTRONIC PROTECTION, INC., Petitioner, v. Paddy J. SCHAEFER, Respondent

Loomis Electronic Protection, Inc. v. Schaefer

1976-05-14

No. 2684

1341

1345

549 P.2d 1341

549

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:47:26.628215+00:00

CAP

Before BOOCHEVER, Chief Justice, and RABINOWITZ, CONNOR, ERWIN and BURKE, Justices.

LOOMIS ELECTRONIC PROTECTION, INC., Petitioner, v. Paddy J. SCHAEFER, Respondent.

LOOMIS ELECTRONIC PROTECTION, INC., Petitioner, v. Paddy J. SCHAEFER, Respondent. No. 2684. Supreme Court of Alaska. May 14, 1976. Robert L. Eastaugh, Delaney, Wiles, Moore, Hayes & Reitman, Inc., Anchorage, for petitioner. Peter J. Aschenbrenner, Aschenbrenner & Saveli, Fairbanks, for respondent. Before BOOCHEVER, Chief Justice, and RABINOWITZ, CONNOR, ERWIN and BURKE, Justices.

2471

15104

OPINION BURKE, Justice. Petitioner, Loomis Electronic Protection, Inc., seeks review of an order granting respondent Schaefer's motion to strike its demand for a jury trial, in a suit alleging discriminatory hiring practices. The precise question that we are asked to consider is whether, in a civil action based upon an alleged violation of AS 18.80.- 220(a)(1), the parties are entitled to a jury trial. Believing the matter to be of sufficient importance to justify departure from the usual practice of allowing an appeal only after entry of a final judgment, we have granted review. Art. I, Sec. 16 of the Constitution of Alaska provides, in part: In civil cases where the amount in controversy exceeds two hundred fifty dollars, the right of trial by a jury of twelve is preserved to the same extent as it existed at common law. (emphasis added) Such language is similar to that found in the Seventh Amendment to the Constitution of the United States. The latter provides : In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law. Respondent's complaint alleges that petitioner refused to hire her because of her sex. AS 18.80.220(a)(1) makes it unlawful for an employer to refuse employment to a person because of his or her sex, unless the reasonable demands of the position require such a distinction. AS 22.10.-020(c) gives the superior court original jurisdiction over suits arising under the foregoing section and provides, in part: The court may enjoin any act, practice or policy which is illegal under AS 18.80 . . . and may order any other relief, including the payment of money, that is appropriate, (emphasis added) AS 18.80 was enacted in 1965 and, with respect to discrimination in employment, is similar to Title VII of the U.S. Civil Rights Act of 1964. The relief provision in Title VII empowers the court to enjoin the respondent from engaging in . . . unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . . . , or any other equitable relief as the court deems appropriate. (emphasis added) The federal courts, dealing with the jury trial question under Title VII, have consistently held that there is no Seventh Amendment right to a jury trial in such actions since they are equitable in nature. Thus, in Slack v. Havens, 522 F.2d 1091, 1094 (1975), the United States Court of Appeals, Ninth Circuit, said: It is well established that a jury trial is required only if a statute creates legal rights and remedies enforceable in the ordinary courts of law. (citations omitted) Schaefer argues that the relief envisioned by her complaint, under the state statute, is also entirely equitable, and that, therefore, Loomis has no right to .a jury trial. We disagree. Title VII of the federal act contemplates only equitable relief. No such limitation is found in the language of AS 22.10.020(c). After authorizing the superi- or-court to enjoin illegal activities, through the application of its traditional powers of equity, the legislature of Alaska went on to authorize the court to order any other relief, including the payment of money. The language of the statute is clearly intended to provide a litigant complete relief in an appropriate case. In view of the strong statement of purpose in enacting AS 18.80, and its avowed determination to protect the civil rights of all Alaska citizens, we believe that the legislature intended to put as many "teeth" into this law as possible. We fail to see how, consistent with that purpose and intent, the legislature could have contemplated a statutory scheme that would not have included the right to recover damages. Otherwise, there would be many cases in which no meaningful relief would be available to the injured party, the one whose civil rights have been violated and whom the law seeks to protect. We believe that the broad language of AS 22.10.020(c) indicates a legislative intent to authorize an award of compensatory and punitive damages for violations of AS 18.80, in addition to the equitable remedies such as enjoining illegal employment activities and ordering back pay as a form of restitution. In Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974), the Supreme Court of the United States held that the Seventh Amendment to the Constitution of the United States required a jury-trial in an action based upon an alleged violation of the fair housing provisions of Title VIII of the Civil Rights Act of 1968. The relief provision of Title VIII permits an award of "actual damages and not more than $1,000 punitive damages". In Curtis, the plaintiff, a black woman, sought injunctive relief plus compensatory and punitive damages for the defendant's alleged refusal to rent her an apartment because of her race. Recognizing the action as one to enforce a "legal right", Mr. Justice Marshall, writing for a unanimous court, said: Whatever doubt may have existed should now be dispelled. The Seventh Amendment does apply to actions enforcing statutory rights, and requires a jury trial upon demand, if the statute creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of law. We think it is clear that a damages action under [Title VIII] is an action to enforce "legal rights" within the meaning of our Seventh Amendment, [citation omitted] A damages action under the statute sounds basically in tort — the statute merely defines a new legal duty, and authorizes the courts to compensate a plaintiff for the injury caused by the defendant's wrongful breach. As the Court of Appeals noted, this cause of action is analogous to a number of tort actions recognized at common law. More important, the relief sought here —actual and punitive damages — is the traditional form of relief offered in the courts of law. (footnotes omitted) Similarly, in the instant case, where part of the relief sought is compensatory and punitive damages, we believe that Art. I, Sec. 16, of the Constitution of Alaska guarantees the parties the right to a jury trial. Accordingly, the order of the superior court, striking petitioner's, demand for a trial by jury, should not have been entered. Respondent makes two additional arguments that we address briefly. First, she argues that jury trials should not be allowed in discrimination cases, as a matter of policy, because of prejudice that may exist among the members of a jury select ed from the general populace. In answer to a similar argument, the court in Curtis said: We recognize . . . the possibility that jury prejudice may deprive a victim of discrimination of the verdict to which he or she is entitled. Of course, the trial judge's power to direct a verdict, to grant judgment notwithstanding the verdict, or to grant a new trial provides substantial protection against this risk, and respondents' suggestion that jury trials will expose a broader segment of the populace to the example of the federal civil rights laws in operation has some force, more fundamentally, however, these considerations are insufficient to overcome the clear command of the Seventh Amendment. . . . (footnote omitted) The same reasoning compels us to reject respondent's argument in this case. In our view the command of Art. I, Sec. 16, is equally clear. Finally, respondent argues that her complaint could well have been the subject of an administrative hearing before the State Human Rights Commission, where there would be no jury, and that it would, therefore, "be anomalous to grant a jury trial" in the same action filed in superior court. Again, we find that a similar argument was made in Curtis, where the court, in discussing two cases holding there was no constitutional right to a jury trial in administrative proceedings, stated: These cases uphold congressional power to entrust enforcement of statutory rights to an administrative process or specialized court of equity free from the strictures of the Seventh Amendment. But where Congress provides for enforcement of statutory rights in an ordinary civil action in the district courts, where there is obviously no functional justification for denying the jury trial right, a jury trial must be available if the action involves rights and remedies of the sort typically enforced in an action at law. (footnote omitted) The same reasoning applies in the instant case. REVERSED and REMANDED for trial by jury. . AS 18.80.220(a) (1) provides: Unlawful employment practices. (a) It is unlawful for (1) an employer to refuse employment to a person, or to bar him from employment, or to discriminate against him in compensation or in a term, condition, or privilege of employment because of his race, religion, color or national origin, or because of his age, physical handicap, sex, marital status, changes in marital status, pregnancy or parenthood when the reasonable demands of the position do not require distinction on the basis of age, physical handicap, sex, marital status, changes in marital status, pregnancy or parenthood . See Rules 5, 23 and 24, Alaska Rules of Appellate Procedure. . Additionally, Rule 38(a), Alaska Rules of Civil Procedure, provides: The right of trial by jury as declared by section 16 of article I of the constitution, or as given by a statute of the state, shall be preserved to the parties inviolate. . 42 U.S.C.A. § 2000e. . 42 U.S.C.A. § 2000e-5 (g). . See, e. g., Slack v. Havens, 522 F.2d 1091 (9th Cir. 1975); EEOC v. Detroit Edison, 515 F.2d 301 (6th Cir. 1975); Robinson v. Lorillard, 444 F.2d 791 (4th Cir. 1971), cert. dismissed, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971); Johnson v. Georgia Highway Express, 417 F.2d 1122 (5th Cir. 1969); EEOC v. Painters Local, 384 F.Supp. 1264 (D.S.D.1974); Lowry v. Whitaker Cable Corp., 348 F.Supp. 202 (W.D.Mo.1972); United States v. Ambac Industries, 15 Fed.Rules Serv.2d 607 (D.Mass.1971); (Gillin v. Federal Paper Board Co., 52 F.R.D. 383 (D.Conn.1970). See also Albermarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). . See also Parsons v. Bedford, 3 Pet. (28 U.S.) 433, 447, 7 L.Ed. 732, 737 (1830), where Mr. Justice Story said: In a just sense, the [Seventh] amendment, then, may well be construed to embrace all suits which are not of equity and admiralty jurisdiction, whatever might be the peculiar form which they may assume to settle legal rights. . We note that the complaint in the instant case seeks employment, hack pay, interest, costs, attorney's fees, and other compensatory and punitive damages. . It is important to note that, In Title VII cases the courts of appeals have characterized back pay as an integral part of an equitable remedy, a form of restitution. Curtis v. Loether, 415 U.S. 189, 197, 94 S.Ct. 1005, 39 L.Ed.2d 260, 268 (1974). . AS 18.80.200 provides : Purpose, (a) It is determined and declared as a matter of legislative finding that discrimination against an inhabitant of the state because of race, religion, color, national origin, age or sex is a matter of public concern and that such discrimination not only threatens the rights and privileges of the inhabitants of the state but also menaces the institutions of the state and threatens peace, order, health, safety and general welfare of the state and its inhabitants. ' (b) Therefore, it is the policy of the state and the purpose of this chapter to eliminate and prevent discrimination in employment, in places of public accommodation, in housing accommodations and in the sale or lease of unimproved property because of race, religion, color, national origin, or, in the case of employment, because of sex or age. (§6 ch. 117 SLA 1965) . The right which respondent seeks to enforce has been deemed a "civil right" by AS 18.80.210. We also are mindful of Art. I, Sec. 1 of the Constitution of Alaska, which provides in part: "This constitution is dedicated to the principles that . all persons are equal and entitled to equal rights." . The salutary effect of allowing damages is well illustrated by the following comments, concerning Title VII of the U.S. Civil Rights Act of 1964: [I] t is apparent that the remedies Congress explicitly provided often are not sufficient to carry out effectively the purposes of the legislation. Back pay awards are frequently insignificant because interim earnings are deducted, and the value of reinstatement may be negligible because by the time these cases are resolved the plain tiff usually lias found another job. Furthermore, there is no explicit provision designed to redress mental suffering and other intangible injuries: . . . . Comment, Implying Punitive Damages in Employment Discrimination Cases, 9 Harv.Civ. Rights — Civ.Lib.L.Rev. 325, 336 (1974). (footnote omitted) Compensatory damages may be an excellent means of affording complete relief in a variety of circumstances in which back pay is inappropriate or sufficient. Id. at 366-70. Punitive damages can also serve a number of desirable functions when properly awarded, including deterrence of continued discrimination. Id. at 334-37. See also Developments in the Law: Employment Discrimination and Title VII of the Civil Rights Acts of 1964, 84 Harv.L.Rev. 1109 (1971). .The Seventh Amendment, as already noted in the text, provides: In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law. . 42 U.S.C.A. § 3612. . 415 U.S. at 194-196, 94 S.Ct. at 1008-1009, 39 L.Ed.2d at 266-267. The court in Curtis also observed that the right to a jury trial "cannot be abridged by characterizing the legal claim as 'incidental' to the equitable relief sought". 415 U.S. at 196, 94 S.Ct. at 1009, 39 L.Ed.2d at 267, n. 11. . There has always been a strong policy favoring jury trials in Alaska. See Johansen v. State, 491 P.2d 759 (Alaska 1971) (contempt proceedings for non-payment of child support) ; R. L. R. v. State, 487 P.2d 27 (Alaska 1971) (delinquency proceedings under Children's Rules); State v. Browder, 486 P.2d 925 (Alaska 1971) (proceedings for direct criminal contempt); Baker v. City of Fairbanks, 471 P.2d 386 (Alaska 1970) (prosecution for violation of a city ordinance). . 415 U.S. at 198, 95 S.Ct. at 1010, 39 L.Ed.2d at 268-269. . 415 U.S. at 195, 95 S.Ct. at 1009, 39 L.Ed.2d at 267.

10462693

STATE of Alaska, Appellant, v. Al TRUNNEL, Jr., Appellee

State v. Trunnel

1976-05-07

No. 2637

550

553

549 P.2d 550

549

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:47:26.628215+00:00

CAP

Before BOOCHEVER, Chief Justice, and RABINOWITZ, CONNOR, ERWIN and BURKE, Justices.

STATE of Alaska, Appellant, v. Al TRUNNEL, Jr., Appellee.

STATE of Alaska, Appellant, v. Al TRUNNEL, Jr., Appellee. No. 2637. Supreme Court of Alaska. May 7, 1976. Stephen G. Dunning, Asst. Dist. Atty., Joseph D. Balfe, Dist. Atty., Anchorage, and Avrum M. Gross, Atty. Gen., Juneau, for appellant. William H. Fuld, Kay, Christie, Fuld & Saville, Anchorage, for appellee. Before BOOCHEVER, Chief Justice, and RABINOWITZ, CONNOR, ERWIN and BURKE, Justices.

1873

11294

OPINION BOOCHEVER, Chief Justice. In this appeal, the State of Alaska seeks our expression of disapproval of the sentences imposed on Mr. Trunnel as being too lenient. Appellee A1 Trunnel, Jr. was convicted upon his plea of nolo contendere to two counts of possession of narcotics and was originally sentenced to ten years imprisonment on each count, to run concurrently. On appeal, this court affirmed his conviction. Trunnel v. State, 535 P.2d 1041 (Alaska 1975). The defendant thereupon filed a timely motion to reduce his sentences under Alaska Rule of Criminal Procedure 35 (a). On July 11, 1975, the superior court reduced Trunnel's sentences by suspending five years of each ten-year sentence, and the State filed a timely notice of sentence appeal. We first consider the question of whether a sentence appeal may be taken from an order granting or denying a motion to modify sentence under Alaska Rule of Criminal Procedure 35(a). Alaska Rule of Appellate Procedure 21(b) provides: Written notice of appeal from a sentence of the superior court by the state, or by a defendant appealing solely on the ground that the sentence is excessive, shall be filed with the clerk of the superior court which imposed the sentence not later than 30 days after sentence was imposed. A sentence is "imposed" at the time it is first announced upon the record by the court. "Imposed" is defined to mean, "to lay on," and "imposition" is "a placing, putting or laying on" . . . . The imposition of sentence means laying the sentence upon the defendant, that is, the act of sentencing him . . Kriebel v. United States, 10 F.2d 762, 764 (7th Cir. 1926). When a motion to reduce sentence under Criminal Rule 35(a) is granted, the court in effect vacates the sentence previously imposed upon the defendant and announces a new, lesser sentence. This fits the definition of "imposing" a sentence, and a sentence appeal would lie under the relevant statutes and rules. We therefore hold that the State may appeal a sentence when it is modified by the superior court. As we have frequently stated, our standard of review on a sentence appeal is to determine whether the trial court's imposition of sentence was clearly mistaken. With this standard in mind, we have examined Trunnel's sentences. The State contends that concurrent ten-year sentences with five years suspended from each do not meet the proper goals of a criminal sentence, outlined by this court in State v. Chaney, 477 P.2d 441, 444 (Alaska 1970), because the sentences do not sufficiently isolate Trunnel, deter him or others from similar crimes, reaffirm societal norms, nor are the sentences likely to accomplish rehabilitation of Mr. Trunnel. The pre-sentence report in this case indicates the following: Trunnel is a 48-year-old black who finished the eleventh grade and was married once, briefly. He has a spotty history of legitimate employment and admits that his major source of income for many years has been gambling. Trunnel stated that he is not addicted to narcotics. At the time of the offenses at issue here, he was operating an "after hours" social club. Trunnel's criminal history shows two prior convictions for burglary in 1948 and 1949 when he was 21 and 22 years old. He received three years probation for "Suspicion of Possession of Narcotic Drugs Other than Marijuana" in 1962, and six months imprisonment with a $250.00 fine for "Illegal Possession of Hypnotic Drugs", which he described as diet pills, in 1964. Since 1964, his only convictions have been for traffic violations and gambling offenses. In relating the length of sentence imposed to the seriousness of a drug offense, we are guided by our decision in Waters v. State, 483 P.2d 199, 201 (Alaska 1971). There we recommended that sentencing judges take into account four groups of drug offenders whose crimes are in the following descending order of seriousness: 1. Smuggling or sale of large quantities of narcotics or possession of large quantities for sale. 2. Smuggling or sale of small quantities of narcotics, or possession of small quantities for sale. 3. Possession of narcotics without intent to sell. 4. Marijuana offenses. The offense for which Trunnel was convicted does not place him within the two most serious categories of drug offenders: the large and small dealers. Instead, he falls into the third category: offenders convicted for possession without intent to sell. The State suggests that Trunnel is a "major" drug dealer in Anchorage. Although there was evidence at the sentencing hearings that some of his associates may have used the premises or out-buildings of the club to hide narcotic drugs and engage in drug dealings, there was no evidence of a type which could be considered in sentencing that Trunnel himself was a drug dealer. We do not have before us the question of whether the original ten-year sentences with no time suspended were appropriate, but whether the trial court was clearly mistaken in imposing the modified sentences. We reiterate our agreement with the American Bar Association's statement that maximum prison terms ought not to exceed five years except for cases involving particularly serious crimes. We also agree with the State that Mr. Trunnel deserves substantial sentences in view of his current conviction of two narcotics offenses and his history of unlawful activities. We believe that concurrent ten-year sentences with five years suspended from each are substantial. Such sentences should serve both to deter the appellee and other drug offenders and to reaffirm societal norms while at the same time allowing for rehabilitation of Mr. Trunnel. We therefore hold that the trial court was not clearly mistaken in modifying the sentence. AFFIRMED. . AS 12.55.120(b) provides: A sentence of imprisonment lawfully imposed by the superior court may be appealed to the supreme court by the state on the ground that the sentence is too lenient; however, when a sentence is ap pealed by the state and the defendant has not appealed the sentence, the court is not authorized to increase the sentence but may express its approval or disapproval of the sentence and its reasons in a written opinion. A1 Trunnel has not appealed the sentence imposed by the superior court. . Alaska Rule of Criminal Procedure 35(a) states: The court may correct an illegal sentence at any time. The court may reduce a sentence within 60 days after the sentence is imposed, or within 60 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 60 days after receipt of an order of the supreme court of the state or of the United States denying an application for relief. . See Corey v. United States, 375 U.S. 169, 84 S.Ct. 298, 11 L.Ed.2d 229 (1963); United States v. Behrens, 375 U.S. 162, 84 S.Ct. 295, 11 L.Ed.2d 224 (1963); Farries v. United States, 439 F.2d 781 (3rd Cir. 1971). These cases hold that reduction of a maximum sentence as provided by 18 U.S.C. § 4208(b) (judge sentences first for maximum term and then awaits study by Bureau of Prisons before deciding whether to reduce sentence) is an imposition of sentence from which an appeal can be taken. . State v. Lancaster, Opn. No. 1247 n. 13 (Alaska, March 8, 1976); Perrin v. State, 543 P.2d 413, 415 (Alaska 1975); Bradley v. State, 535 P.2d 1031, 1032 (Alaska 1975); Smith v. State, 531 P.2d 1273, 1276 (Alaska 1975). . The State argues that the original ten-year sentence without suspended time was proper in Trunnel's ease because it is at least very likely, if not conclusively proven, that he falls within the most serious category of drug offenders [as denominated in the case of Waters v. State, 483 P.2d 199, 201 (Alaska 1971)]. . We have often condemned reliance on previous "contacts" with the police as well as other offenses for which guilt has not been established. Burleson v. State, 543 P.2d 1195, 1203 (Alaska 1975) ; Griggs v. State, 494 P.2d 795, 798 (Alaska 1972) ; Robinson v. State, 492 P.2d 106, 107 (Alaska 1971) ; Peterson v. State, 487 P.2d 682, 683 n. 1 (Alaska 1971) ; Galaktionoff v. State, 486 P.2d 919, 924 (Alaska 1971) ; Robinson v. State, 484 P.2d 686, 690 n. 11 (Alaska 1971) ; Waters v. State, 483 P.2d 199, 202-03 (Alaska 1971). .American Bar Association Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures. Standard 2.1(b) at 13-14 (approved draft 1968). Donlun v. State, 527 P.2d 472, 475 (Alaska 1974). In the context of drug offenses, see, for example, McClain v. State, 519 P.2d 811 (Alaska 1974) (sentence of four years for one count of manufacturing and one of selling heroin affirmed) ; Daygee v. State, 514 P.2d 1159 (Alaska 1973) (four-year sentence affirmed for possession of a large quantity of marijuana for sale) ; Nickerson v. State, 492 P.2d 118 (Alaska 1971) (sentence of eight years with four suspended for possession and sale of heroin affirmed) ; Nicholas v. State, 477 P.2d 447 (Alaska 1970) (sentence of two years for sale of marijuana affirmed). For a complete study of drug offense sentence review in Alaska, see It. Erwin, Five Tears of Sentence Review in Alaska, 5 TJ.C.L.A.— Alaska L.Rev. 1, 11-12, Table III (1975). We have reviewed the sentence in only one other drug case which involved possession and not sale of narcotics, as is true in the instant case. In Whitton v. State, 533 P.2d 266 (Alaska 1975), we approved a ten-year sentence for possession because of aggravating circumstances: the defendant's fourteen previous convictions for other crimes. . State v. Chaney, 477 P.2d 441, 444 (Alaska 1970). . AS 12.55.075(a)(2) requires the court at the time of imposing sentence to prepare a sentencing report including "the reasons for selecting the particular sentence imposed". As stated in this opinion, when a court in effect vacates the sentence previously imposed upon the defendant and announces a new, lesser sentence, he is "imposing" a sentence. AS 12.55.075(a)(2) therefore becomes applicable. The superior court judge in imposing the revised sentence referred to the briefs and memoranda submitted to the trial court but only specified as reasons for the reduced sentence the fact that between the date of the indictment in 1973 and the date of sentencing, July 11, 1975, the defendant was not involved in violations of a statute, and that when he was allowed to leave the state to attend a funeral in his family, he returned within the period of time allotted to him. The court also indicated a review of the second sentencing hearing but does not state additional reasons derived from such a review which led to the sentence reduction. Since we find that the court in imposing the reduced sentence was not clearly mistaken, we have not elected to remand this case. In future cases, full and explicit reasons should be set forth for imposing a sentence or reduction thereof.

10471980

In the Matter of S. D., JR., et al.

In re S. D.

1976-04-07

No. 2530

1190

1206

549 P.2d 1190

549

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:47:26.628215+00:00

CAP

Before BOOCHEVER, C. J., CONNOR, ERWIN and BURKE, JJ., and DIMOND, Justice Pro Tern.

In the Matter of S. D., JR., et al.

In the Matter of S. D., JR., et al. No. 2530. Supreme Court of Alaska. April 7, 1976. Richard Svobodny, of Alaska Legal Services, Juneau, for Mr. and Mrs. D. (parents). Paul Hoffman of Robertson, Monagle, Eastaugh & Bradley, Juneau, guardian ad litem for D. Children. Before BOOCHEVER, C. J., CONNOR, ERWIN and BURKE, JJ., and DIMOND, Justice Pro Tern.

9430

56348

OPINION BOOCHEVER, Chief Justice. The parents of S.D., Jr., M.D., A.D. and I.D., minor children, appeal from an adjudication that their children were dependent minors and from a subsequent disposition which placed the children in the custody of the Department of Health and Social Services for a period of two years. It is contended that insufficient evidence was presented to justify a finding of dependency, and that in the dispositive phase of the proceedings, there was no sufficient showing that removal of the children from the family home was in the children's best interests. For the reasons hereinafter set forth, we affirm the decision of the superi- or court. On March 7, 1975, four petitions were filed in the superior court by Gary Bluhm, a social worker employed by the Division of Family and Children Services of the Alaska Department of Health and Social Services. The petitions indicated that the D. parents were observed to be very intoxicated on March 5, 1975, and that for the previous four days, the three school-age children had not attended school so as to bring the children under the purview of AS 47.10.010(a)(5) as lacking proper parental care by reason of faults and habits of the parents. At an emergency custody hearing on March 11, 1975, Judge Stewart determined that the D. children should remain in the temporary custody of the State of Alaska pending a final adjudication of the juvenile petitions. On March 14, 1975, a hearing was conducted on the merits of the juvenile petitions. The court adjudged the four children to be dependent minors under Title 47 and ordered that temporary custody remain in the state until the disposition hearing. At the disposition hearing on April 7, 1975, the children were represented by the court-appointed guardian ad litem. The court considered recommendations from the Division of Family and Children Services, the guardian ad litem and counsel for Mr. and Mrs. D. In its order of disposition, the court adopted the recommendations of the guardian ad litem with a few modifications. Custody of the children was to remain in the State of Alaska, Department of Health and Social Services, Division of Family and Children Services. The four children were to remain together at the Alaska Youth Village until June 1, 1976, at which time they would be returned to their parents if the parents could demonstrate their ability to provide a stable home, overcome their drinking problems and hold or at least seek continuous employment. The children were to remain in legal custody of the State for one year after June 1, 1976 even if they had been returned to their parents. The Division of Family and Children Services was ordered to work with the parents, particularly on the problem areas of excessive drinking, inability to hold continuous employment, any illness of the parents and the over-all inability of the parents to discipline themselves in order to provide a stable home. Regular visits between parents and children at the Alaska Youth Village and outside the institution were allowed by the order. From the court's findings and order, filed on April 8, 1975, the parents of the dependent minors bring this appeal. A child hearing is divided by Alaska Rules of Children's Procedure 12(a) into two phases, the adjudicative phase and the dispositive phase. This appeal raises questions about both phases of the hearing in the case of the D. children: 1. At the adjudicative phase, were the facts presented of a sufficient nature for a finding of dependency as a matter of law? 2. At the dispositive phase, did the court err in removing the minors from their parental home? I THE ADJUDICATIVE PHASE OF THE HEARING Under the circumstances of this case, the adjudicative phase of the hearing was for the purpose of determining the issue of dependency. Mr. and Mrs. D. argue that the facts presented to the court during the adjudicative phase were not sufficient for a determination that the D. children were dependent minors as a matter of law under AS 47.10.010(a)(5) and AS 47.10.290. AS 47.10.010(a) (5) reads as follows: (a) Proceedings relating to a minor under 18 years of age residing or found in the state are governed by this chapter, except as otherwise provided in this chapter, when the minor (5) lacks proper parental care by reason of faults, habit or neglect of his parent, guardian or custodian. AS 47.10.290(3) provides that a "dependent minor" is a minor whom the court determines is within the provisions of § 10(a)(4), (5), (6), (7), (8), or (9) of this chapter. Thus, in order for the children to be adjudged dependent minors, it was necessary for the court to find that the children lacked parental care by reason of faults, habit or neglect of the parents. Children's Rule 8(d)(3) states that the petition for adjudication shall include "[a] brief statement of the facts which bring the child within the court's child jurisdiction". This rule must be read in conjunction with Children's Rule 12(a) (1), which states that the issue of dependency is determined according to allegations of the petition for adjudication. Thus, at the adjudicative phase of any children's proceeding, the family court may consider only the specific situations set out in the petition. The petition for the youngest child, S.D., Jr., stated: On March 5, 1975, in Juneau, Alaska, Mr. and Mrs. S. D. were observed to be very intoxicated for the past 4 days which brings minor under purview of AS 47.10.010, subsec. (5)[(a)(5)] lacks proper parental care by reason of faults and habits of his parents. The petitions for each of the three other children stated: On March 5, 1975, Mr. and Mrs. S. D. were observed to be very intoxicated and that for the past 4 days the above minor had not attended school which brings her (him) under the purview of AS 47.10.010 (5)[(a)(5)] lacks proper parental care by reason of faults and habits of her (his) parents. Thus the petitions indicate that the specific situation to be considered by the family court was the parents' intoxication and the children's absence from school during the time specified. The older children's petitions stated that they had not attended school for the past four days. Since two of the past four days (March 1 and 2, 1975) were on a weekend, it seems logical to read these petitions as referring to the past four school days. This would make the petition refer to the time from February 27 to March 5, 1975. The trial court limited its oral findings to the matters alleged in the petition limiting the time under consideration to the period from February 27 through March 5. During that period of time, he found "that both Mr. and Mrs. D. were under the influence of alcohol, that as a result of that these children were not in school". The court concluded that the faults of the parents resulted in lack of parental care. Under Children's Rule 21, unless the child is charged with an act which may result in his incarceration, the standard of proof is by a preponderance of the evidence. We must therefore determine whether there was proof by a preponder-anee of the evidence that the children lacked parental care by reason of the fault, habit or neglect of the parents. In reviewing the decision of a trial court based on a contention that insufficient evidence has been presented, we must view the evidence and all reasonable inferences deducible therefrom in the manner most favorable to the prevailing party, in this case, the State. The findings of the trial court will not be overturned unless clearly erroneous. Before discussing the evidence we shall look to case authority regarding the requirements for a finding of dependency. Unfortunately, we find little nourishment from cases decided in other jurisdictions since statutory requirements vary widely and most dependency issues arise in the context of attempts to terminate parental rights so that the dependent child may be adopted. In discussing analogous considerations pertaining to child neglect cases, it has been stated that there is no fixed standard and each case must be judged on its particular facts. Intoxication has been an issue in a number of cases. Most of the cases, however, involve termination of parental rights and, as might be expected for such an extreme remedy, flagrant dereliction of duty. Thus, in addition to drunkenness, other factors have been involved such as: imprisonment after involvement in criminal activities ; placing the child continuously with someone else due to inability to care for the child because of heavy addiction to alcohol ; severe physical abuse of the child; and sexual promiscuity coupled with severe intoxication on several occasions when attempting to care for the child, including one occasion when the mother spilled the child out of its buggy and fell into a ditch herself, remaining there for a substantial time. In In re J.M., 131 Vt. 604, 313 A.2d 30 (1973), the court found that there was not enough evidence for a finding of neglect where the mother had on occasion used intoxicants in excess and slept late in the mornings. The father was rarely home during the children's waking hours, but this was due to his employment. The only child in question was a 6-month-old baby, and there was no evidence that he was affected in any way by the mother's drinking. In the absence of evidence of physical abuse, immoral environment or lack of proper fodd or clothing, the court held that this was not enough evidence to find neglect — even though the four older children had been removed from the home because of parental neglect. There has been only one prior case under AS 47.10.010(a)(5) involving a dependency determination which has reached this court. That case, In re P.N., 533 P.2d 13 (Alaska 1975), involved a father's sexual molestation of his ten-year-old daughter. The aggravated facts involved in P.N. prevent it from being of guidance as to the question in issue here. In determining standards for a finding of dependency, we must in part be guided by the results of such a finding. If a finding of dependency alone were to have the effect of automatically terminating such an important relationship as that of parent and child, obviously much more substantial evidence would be required than if the result was the release of the child to the parents under some supervision by a state agency. Yet such divergent results at the dispositive phase may follow a finding of dependency at the adjudicative phase. The terms "fault" and "lack of parental care" encompass a wide variety of conduct and results therefrom. To justify the threshold finding of dependency, the faults must be sufficiently grievous and the results must so adversely affect the child as to justify, at the minimum, state interference to the extent of supervision of the parent-child relationship. It is this minimum standard with which we are concerned in the "adjudicative" stage of the proceedings. It is in fashioning a remedy at the "dispositive" stage that the degrees of fault and lack of parental care must be evaluated. The parents concede that "it certainly can be argued that the intake of alcoholic beverages is a fault". While the legislature has expressed the view that alcoholics and intoxicated persons should not be criminally prosecuted for their consumption of alcoholic beverages and that they should be afforded a continuum of treatment so they may lead normal lives as productive members of society, drunkenness over an extended period of time, at least in the context of child care, must be considered as a fault. We have stated that the Uniform Alcoholism and Intoxication Treatment Act incorporates into the law the realization that alcoholism is a disease. The petitions with which we are concerned are not based on the disease of alcoholism, as such, but on observations of extensive intoxication during a period of six days. Even, however, if the intoxication under these circumstances is to be considered a disease, it does not mean that it cannot be regarded as a fault. A fault is a flaw or defect. For example, insanity is a form of mental illness. While no moral opprobrium should be attached to such a condition, insanity or other severe mental illness could still constitute a fault or defect in the context of child care. Although an isolated incident of intoxication of short duration might not be considered sufficient to constitute a fault for the purposes of a dependency finding, we hold that intoxication over an extended period of time does constitute a "fault" under the provisions of AS 47.10.010(a)(5). As we have previously indicated, the fault must be related to the "lack of parental care" of the child. Thus, we must determine whether the use of alcohol resulted in a lack of proper care for M.D., A.D. and I.D. Looking to the term "lacks proper parental care", it is apparent that it may be manifested in many ways. Failure to properly clothe, feed, maintain cleanliness, supervise and guide children under varying circumstances could justify such a finding. Preventing children from attending school over an extended period of time without some justifiable reason evidences such a lack of proper parental care. Such a standard has been adopted as the law of Alaska by AS 14.30.010 which, with certain exceptions not applicable here, mandates that parents of children between the ages of 7 and 16 years of age shall insure that the child is not absent from school. Examining the evidence presented to the superior court and the inferences therefrom in the light most favorable to the state, we hold that it was sufficient to justify the trial court's findings that during the period of February 27 through March 5, the parents were under the influence of alcohol and, as a result, the children were not in school. Mr. D. admitted that he was drinking some alcohol from February 27 through March 5, 1975. Mrs. D. testified that she drank some alcohol on February 28, and that alcohol was "like poison" to her. A Juneau police officer, a counselor for the Alcoholism Central Agency and the state social worker assigned to the D. family testified as to Mr. and Mrs. D.'s extreme intoxication on March 4 and 5, 1975. The children's school principal testified as to Mr. D.'s apparent severe intoxication on February 27, and A.D. told the judge in chambers that his father was drinking heavily and that his mother was drinking some wine every day while the family was at his aunt's house in town, a period that encompassed February 28 through March 5. During that period of time, Mr. D.'s condition prevented him from driving a car. On March 5, neither Mr. nor Mrs. D. was in a condition to react to an emergency. Without detailing all of the sordid facts, it is sufficient to state that the evidence indicated heavy intoxication over an extended period of time. There is no dispute over the unexcused absences from the school in which the children were enrolled on February 27, 28, March 3, 4 and 5, and there was ample evidence of the relationship between the parent's intoxication and such absences. Mr. D. testified that he had a car and could have driven the children to school, but his drinking prevented him from driving. A.D. told the judge in chambers that he was trying to get to school, but his father would not help because of his drinking. Mr. and Mrs. D. refused A.D. bus fare so that he might go to school from his aunt's house, although Mr. D. stated at the hearing that A.D. was old enough to take the bus by himself. Mrs. D.'s sickness, which prevented her from seeing that her children got to school, seems to have been brought on by her drinking, although she knew alcohol was "like poison" to her. Since there was ample evidence for the court's findings that the parents were under the influence of alcohol during the period from February 27 through March 5 and that, as a result, the children were not in school, we hold that it was not error to adjudicate that the children were dependent children. II THE DISPOSITIVE PHASE The parents' contentions that the court erred in removing the children from the parental home is based on two arguments: 1. That the state had the burden of proof by a preponderance of the evidence that removal from the home is in the best interests of the children and that it failed to meet that burden; and 2. That the right of parents to the care, custody and control of their children is a fundamental constitutional right which may only be infringed upon for a legitimate state purpose by the least restrictive alternative, and that removal of the children from the parental home is not the least restrictive alternative. As to the first contention, we agree that the standard to be applied by the court at the dispositive phase of the hearing is "the best interests of the child". That standard has been consistently applied in the closely analogous divorce custody situations. We have also stated that such a standard should be used in the final decision with reference to an adoption. We further agree generally with the parents and the array of contemporary authorities presented that removal of children from the family home may be a drastic, traumatic and emotionally damaging experience which is justified only under extreme conditions. Children should, if at all possible, be maintained in their homes with society providing the supportive services necessary to keep the family together. That does not mean, however, that when reasonable efforts to maintain a minimally suitable home environment have failed, other alternatives may not be utilized, and the Alaska Statutes present the judge with a wide range of alternatives. Determination of the standard to be applied by the court, however, is not tantamount to establishing a burden of proof requirement. Such a requirement has been set forth in AS 47.10.080(c)(3)(D), which necessitates clear and convincing proof by more than a preponderance of the evidence before parental rights and responsibilities may be terminated due to a parent's unfitness to exercise them. No such requirement has been set forth in situations such as this where termination of parental rights is not involved. In opposition to the parents' position, the guardian ad litem contends that once the state has proved by a preponderance of evidence at the adjudicative hearing that the child lacks proper parental care, the burden should shift to the parents to show that immediate neglect would not occur if the children were returned to their custody. Although each party argues that the other should have the burden of proof, we believe that, in cases other than termination of parental rights, placing the burden of proof on either is inappropriate. The dispositive phase of the proceeding is analogous in some respects to sentencing in a criminal case. In both instances, the findings which brought the person under the statute have been made at a prior court proceeding; the sole issue before the court is what disposition is to be made so as to meet the needs of the person and of society. The dispositive proceeding is not a trial, and the court may look to evidence which would not legally be admissible in the prior proceeding. No party is called on to prove its case but rather to make recommendations. The court is allowed to exercise its discretion in making a disposition, guided in a ciminal sentencing by the goals set out in State v. Chaney, 477 P.2d 441, 444 (Alaska 1970), and in the dispositive phase of a child hearing by the more ephemeral goal of the "best interest" of the child. Since we hold that a burden of proof is not applicable to a dispositive hearing other than when termination of parental rights is involved, the question as to whether such a burden was met is irrelevant. The issue as to the propriety of the disposition is raised by the parents' additional contention that they have a constitutional right to the care, custody and control of their children. We agree that the right of parents to the care, custody and control of their children is- an important and substantial right protected by, although not specifically enumerated in, both the United States and Alaska Constitutions. Counsel argues that when a state infringes on such a constitutional right, it must be for a legitimate state purpose, and then only by choosing the least restrictive alternative — the least drastic means — which will effectuate that purpose. Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). The "least restrictive means" principle has been applied by the courts in cases involving freedom of speech and association, travel, mental commitment, privacy, pretrial detention and unreasonable searches and seizures. While parental rights may be of like importance, there is an additional consideration involved. The parents' constitutional right to the care and custody of their children must be balanced against the rights of their children to an adequate home and education. As this court stated in D.M. v. State, 515 P.2d 1234 (Alaska 1973), a proceeding to terminate a mother's parental rights by reason of abandonment: We acknowledge that parental rights are of serious and substantial import. We note, however, that in recent years the courts have become increasingly aware of the rights of children, (footnote omitted) 515 P.2d at 1237. Even though we are not concerned with a termination of parental rights, we believe that all reasonable alternatives should be explored prior to removal of children from the parental home. Our review of the record indicates that this was done in this case, and that Judge Stewart thoughtfully provided for an alternative, balancing the rights of the children with those of the parents. In the dispositive phase, the judge was not limited to the allegations of the petitions and was free to consider other evidence in making his determination. Children's Rule 17(b) permits the court to consider social agency and police reports in the dispositive phase. A Department of Health and Social Services' report dated March 13, 1975 indicated difficulties with the D. family's parental care dating back to October 1971. The children were placed in foster care on two prior occasions, and have been in the custody of the court on four prior occasions. The report indicates the following efforts of social workers to assist the parents: visits by a public health nurse, having the father visit the Alcohol Rehabilitation Center and enter into a program to combat his drinking problems, assistance in securing employment, and arranging for the children to live with their grandparents on occasion. The report fur ther indicated that when a child is placed in a foster home, a service plan is determined which includes regular interviews with the parents for the purpose of discussing visits with the children; counseling on various aspects of family life, budgeting, employment, nutrition, educational opportunities, health care, and transportation; supervision and coordination of visits of parents, children and other family members and later setting up a plan for the return of the children and communicating to parents how they can demonstrate the ability to care for the children. The report also indicates that such supportive aids were given the parents in the past, and it is apparent that the court carefully considered other alternatives, seeking recommendations from counsel for the parents and the children before making his decision. Additional evidence from that considered at the adjudicative phase supports the court's decision. Because of the home situation, one of the children had run away and another was involved in a minor shoplifting incident. The father, upon being advised of this latter incident, abdicated his responsibility for supervising the child and left it to the police to handle alone. A third child was hoarding food, a symptom of insecurity. The court placed the children in a group home near their residence where they could continue to attend their school. The children were not separated, and provision was made for visits by and with the parents. At the end of the school year, June 1, 1976, the children are to be returned to the parents unless the Division of Family and Children Services, prior to that date, schedules a hearing and petitions the court for further custody out of the parental home for similar reasons to those resulting in the original adjudication of dependency. A program was established for the Division of Family and Children Services to work with the parents in four problem areas of excessive drink, inability to hold continuous employment, health and over-all ability of the parents to discipline themselves and provide a stable home. The Division was further required to prepare and proceed with written plans pertaining to both the children and the parents. We find that the trial court very carefully considered the alternatives available in arriving at a disposition, and that the disposition involves a reasonable and effective choice from among such alternatives after it became necessary for the best interests of the children to remove them from the family home. The decision does not constitute a severance of familial ties, but the establishment of a thoughtful program for rehabilitation of the family unit. From the record presented to us, it appears that the court and the Division of Family and Children Services are to be commended for their efforts in making a solution to a most difficult problem. Hopefully, it will result in rehabilitation of the parents so as to establish a happier and healthier familial unit within which the goals of suitable child care and guidance will be fulfilled. AFFIRMED. RABINOWITZ, J., not participating. . At the time of these events, I.D. was 11 years of age, A.D. was 9, M.D. was 7 and S.D., Jr. was 3. . The children had been in the Alaska Youth Village on other occasions, thus they were not moving into a totally strange environment. . Children's Rule 12(a) specifies: (a) Phases of Hearing. The child hearing consists of two phases — the adjudicative phase and the dispositive phase. (1) Adjudicatii'e Phase. The adjudicative phase determines the issue of delinquency or dependency, or both, or need of supervision, according to allegations of the petition for adjudication. These issues may be determined either by the admission or confession of the party or by the taking of evidence. (2) Dispositive Phase. The dispositive phase consists of the measures taken and the orders issued by the court with respect to the child or his parents, guardian, or custodian, designed to correct any undesirable situation found in the adjudicative phase. . None of the parties in the instant case attacked the validity of the statute at trial or appeal. Since the issue was not raised by either party in the court below or set forth and briefed as a statement of points on appeal, we do not consider the issue to be before this court. See Moran v. Holman, 501 P.2d 769, n. 1 at 770 (Alaska 1972) ; Weaver v. O'Meara Motor Co., 452 P.2d 87, 93 (Alaska 1969) ; Whaley v. State, 438 P.2d 718, 723-24 (Alaska 1968) ; Sanuita v. Common Laborer's and Hod Carriers Union, 402 P.2d 199, 201 (Alaska 1965) ; Lumberman's Mutual Cas. Co. v. Continental Cas. Co., 387 P.2d 104, 109 (Alaska 1963). . Children's Rule 12(a) (1) defines the adjudicative phase as follows: The adjudicative phase determines the issue of delinquency or dependency, or both, or need of supervision, according to allegations of the petition for adjudication. These issues may be determined either by the admission or confession of the party or by the taking of evidence, (emphasis added) .At the emergency custody hearing and at the dispositive phase of the dependency hearing, evidence was offered by the State concerning other problems of the D. children caused by their parents' drinking besides absenteeism from school and the parents' history of drinking problems and neglect of their children. Such evidence cannot be considered in the adjudication of dependency since it is beyond the scope of the petition for adjudication. . Mr. and Mrs. D. argue that "the past 4 days" in the petition should be literally interpreted. However, there was testimony that the children were absent from school on February 27, 28 and March 3, 4 and 5, which would corroborate the other interpretation. . Children's Rule 21(a) specifies: (a) Standard of Proof. In determining the issues of delinquency, dependency or need of supervision in the adjudicatory phase of a children's proceeding, the standard of proof shall be as follows: (1) If a child is charged with any act which may result in his incarceration, there must be proof beyond a reasonable doubt. (2) In other cases, the proof shall be by a preponderance of the evidence. For contrast as to standard of .proof for determining a parent's fitness, see In the Matter of K.S., 543 P.2d 1191 (Alaska 1975). . City of Fairbanks v. Smith, 525 P.2d 1095 (Alaska 1974) ; Hughes v. State, 513 P.2d 1115 (Alaska 1973) ; Graham v. Rockman, 504 P.2d 1351 (Alaska 1972). We view the test to be used in weighing the evidence in children's proceedings to be the same as used in adult proceedings. . A clearly erroneous finding which may be set aside or on review is one which leaves the supreme court with a definite and firm conviction on the entire record that a mistake has been made, although there may be evidence to support the finding. A & G Construction Co., Inc. v. Reid Brothers Logging Co., Inc., 547 P.2d 1207 (Alaska 1976) ; Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d 826 (Alaska 1974). . The problem in looking to cases dealing with termination of parental rights is that they present the more extreme factual patterns of parental fault and improper care. Few cases are appealed from a finding of dependency alone where parental rights have not been terminated. The Alaska cases involving termination of parental rights are not relevant since the improper parental conduct alleged is abandonment of the child, see In re B.J., 530 P.2d 747 (Alaska 1975) ; Adoption of V.M.C., 528 P.2d 788 (Alaska 1974) ; In re Adoption of A.J.N., 525 P.2d 520 (Alaska 1974) ; D.M. v. State, 515 P.2d 1234 (Alaska 1973), or unfitness of the parent, see In re K.S., 543 P.2d 1191 (Alaska 1975) ; Turner v. Pannick, 540 P.2d 1051 (Alaska 1975). . In the Interest of Stacey, 16 Ill.App.3d 179, 305 N.E.2d 634, 638 (1973). . In the Interest of Kester, 228 N.W.2d 107 (Iowa 1975). . In re S.M., 39 Cal.App.3d 40, 113 Cal.Rptr. 847 (1974). . In re J.Z., 190 N.W.2d 27 (N.D.1971). . In re Johnson, 9 Wis.2d 65, 100 N.W.2d 383 (1960). . AS 47.10.080(c) specifies: (c) If the court finds that the minor is dependent, it shall (1) order the minor committed to the department for an indeterminate period of time not to exceed the date the minor becomes 19 years of age, except that the department may petition the court for continued supervision for an additional one-year period for minors who have not responded to treatment; (2) order the minor released to his parents, guardian, or some other suitable person, and, in appropriate cases, order the parents, guardian, or other person to provide medical or other care and treatment; if the court releases the minor, it shall direct the department to supervise the care and treatment given to the minor; the department's supervision may not extend past the date the minor reaches majority, except that the department may petition the court for continued supervision for an additional one-year period for minors who have not responded to treatment; or (3)by order, terminate parental rights and responsibilities of one or both parents and commit the child to the department or to a legally appointed guardian of the person of the child, if one of the following conditions exists: (A) Each parent, or the surviving parent, or one parent if the other has been deprived of custody and visitation rights wishes to relinquish the child to the department or to a legally appointed guardian of the person of the child for adoptive purposes, and the relinquishment is in writing, signed and acknowledged before the court or duly authorized representative of the department and filed with the court; (B) the child has been abandoned for a period of not less than six months by (i) both parents, or (ii) the surviving parent, or (iii) one parent if the other has been deprived of custody and visitation rights; (C) each parent, the surviving parent, or one parent if the other has been deprived of custody and visitation rights has been judicially determined to be of unsound mind and the disability has not been removed and the parent has been hospitalized for reasons of mental illness diagnosed as permanent or of long duration ; or (D) each parent, or the surviving parent, or one parent if the other has been judi-dicially deprived of custody and visitation rights, has demonstrated by his conduct, proven by clear and convincing proof amounting to more than a preponderance of the evidence that he is unfit to continue to exercise his parental rights and responsibilities. . In the Matter of L.A.M. v. State, 547 P.2d 827, (Alaska 1976) ; In the Interest of Kester, 228 N.W.2d 107 (Iowa 1975). . AS 47.37.010. See Peter v. State, 531 P.2d 1263 (Alaska 1975). . Peter v. State, supra, 531 P.2d at 1271. . Webster's New International Dictionary (2d ed.). . In re Currence, 42 Misc.2d 418, 248 N.Y.S.2d 251 (1963). See In re Miller, 12 A.D. 2d 890, 209 N.Y.S.2d 964 (1961), where the court suggested that proof might be adduced that the child was neglected because he was unlawfully kept out of school, one of the grounds in the New York neglect statute. . See note 9 supra. . The D. family lived 13 miles outside the City of Juneau. On February 27, 1975, the family moved to the house of Mr. D.'s sister in the City of Juneau. . We note that the issue of unexcused absence from school does not apply to the preschool child. Consequently, we question whether there was sufficient evidence presented in the youngest child's case to adjudicate him a dependent minor. Even though Mr. and Mrs. D.'s intoxication resulted in the older children not attending school, it may not necessarily be concluded that there was a lack of parental care of S.D. Nor was a great deal of evidence presented as to such a failure of proper parental care. In fact, the parents contend that all of the children were adequately clothed and supervised during the time mentioned in the petition. No separate arguments for the youngest child were raised at either phase of the child hearing or on appeal, although the parents and children were both represented by counsel. We do not reach this issue since it was not raised at any time by counsel for the children or parents, but we note that the parents are entitled under Children's Rule 28, on good cause being shown, to a review of an order of the children's court at any time. Children's Rule 28(a) and (b) reads as follows: (a) Annual Review. Excepting orders terminating parental rights, the children's court shall annually review its effective orders. The court may review its orders more frequently to determine whether such orders continue to be in the best interest of the child or the public. (b) Review upon Application. For good cause shown the child, his parents, guardian, or custodian are entitled to review at any time upon application therefor. . AS 09.55.205(1) ; Horton v. Horton, 519 P.2d 1131 (Alaska 1974) ; Nichols v. Nichols, 516 P.2d 732 (Alaska 1973) ; Curgus v. Curgus, 514 P.2d 647 (Alaska 1973) ; Carle v. Carle, 503 P.2d 1050 (Alaska 1972). . In the Matter of the Adoption of K.S., supra, we distinguished the final decision from the initial determination of whether a mother was an unfit parent, much as in this case where we have distinguished between the adjudicative and dispositive phase. Bee also Turner v. Pannick, supra. . California State Social Welfare Board, Report on Foster Care: Children Waiting (September 1972) ; DeFrancis, Child Protective Services — Community Process (1964) ; Littner, Some Traumatic Effects of Separation and Placement (Child Welfare League of America 1956) ; Glickman, "Treatment of the Child and His Family after Placement," 28 Soc.Serv.Rev. 276 (1954) ; J. Bowlby, Child Care and the Growth of Love (2nd ed. 1965) ; Foster Care in Question: A National Reassessment of 21 Experts (H. Stone, ed. 1970) ; A. Freud and D. Burlingham, War and Children (1943) ; Goldstein, Freud & Solnit, Beyond the Best Interest of the Child (1973). .I. e., homemaker training, child care, job placement, income supplements, alcohol rehabilitation, psychological counseling, and psychiatric therapy. Some jurisdictions require state efforts to maintain the family relationship in juvenile proceedings. For example, California Welfare and Institutional Codes, Sec. 502 provides: The purpose of this chapter is to secure for each minor under the jurisdiction of the juvenile court such care and guidance, preferably in his own home, as will serve the spiritual, emotional, mental, and physical welfare of the minor and the best interests of the State; to preserve and strengthen the minor's family ties whenever possible, removing him from the custody of his parents only when his welfare or safety and protection of the public cannot be adequately safeguarded without removal ; and, when the minor is removed from his own family, to secure for him custody, care, and discipline as nearly as possible equivalent to that which should have been given by his parents. This chap ter shall be liberally construed to carry out these purposes. Minnesota Statutes Sec. 260.011 is substantially identical. The purpose of the Colorado Children's Code is to "strengthen family ties whenever possible, including improvement of the home environment". C.R.S. '73 19-1-102. 33 Vermont Statutes Sec. 631(a) (3) says that the state should allow children to remain in their family environment whenever possible, separating them from their parents only when necessary for their own or society's welfare. . We note that the judgment placed the children in a specific group home, the Alaska Youth Village, for a specified period of time. The issue has not been raised on this appeal as to the authority of the court to designate a specific institution or period of time, and we therefore do not pass on that issue. But see A.A. v. State, 538 P.2d 1004 (Alaska 1975) ; In re P.N., 533 P.2d 13 (Alaska 1975), and the apparent conflict between AS 47.10.080(c)(1) and Children's Rule 22(f). The Children's Rules are in the process of revision at this time. . Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551, 558 (1972) ; May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953) ; Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944) ; Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) ; D.M. v. State, 515 P.2d 1234 (Alaska 1973). . Aptheker v. Secretary of State, 378 U.S. 500, 513-14, 84 S.Ct. 1659, 1667-68, 12 L.Ed.2d 992, 1001-02 (1964) (right to travel) ; Covington v. Harris, 136 U.S.App.D.C. 35, 419 F.2d 617, 623-25 (1969) (mental commitment) ; Wyatt v. Stickney, 344 F.Supp 373, 384 and 344 F.Supp. 387, 396-97 (M.D.Ala.1972) (mental commitment) ; Brenneman v. Madigan, 343 F.Supp. 128, 138 (N.D.Cal.1972) (pretrial detention) ; Hamilton v. Love, 328 F.Supp. 1182, 1192 (E.D.Ark.1971) (pretrial detention) ; City of Carmel-by-the-Sea v. Young, 2 Cal.3d 259, 85 Cal.Rptr. 1, 466 P.2d 225, 232 (1970) (personal privacy) ; Parrish v. Civil Service Commission, 66 Cal.2d 260, 57 Cal.Rptr. 623, 425 P.2d 223, 230-31 (1967) (freedom from unreasonable searches and seizures) ; Fort v. Civil Service Commission, 61 Cal.2d 331, 38 Cal.Rptr. 625, 392 P.2d 385, 389 (1964) (freedom of speech and association). . In response to the dissent in this opinion, we emphasize that the range of evidence which the court may consider at the disposi-tive pliase is much broader than that at the adjudicative phase. The court properly considered extensive additional evidence, discussed in the remainder of this opinion, which included prior court custody of the D. children because of parental neglect; a history of parental drinking problems; past attempts by social service agencies to work with the parents in combatting alcoholism and securing employment; and increasing problems evidenced by the children as a result of their parents' drinking and their insecure home environment. Based on this additional evidence, the children's court could well have concluded that the best interest of the children dictated their temporary removal to a secure and not unfamiliar environment where they could be together and attend their own school regularly, and see their parents frequently while extensive efforts toward rehabilitation of the parents were attempted.

10473633

Charles MUNNS, Petitioner, v. VOLKSWAGENWERK, A.G., and Volkswagen of America, Inc., Respondents

Munns v. Volkswagenwerk

1975-09-10

No. 2537

1180

1181

539 P.2d 1180

539

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:47:44.124389+00:00

CAP

Before RABINOWITZ, Chief Justice, and CONNOR, ERWIN, BOOCHEVER and BURKE, Justices.

Charles MUNNS, Petitioner, v. VOLKSWAGENWERK, A.G., and Volkswagen of America, Inc., Respondents.

Charles MUNNS, Petitioner, v. VOLKSWAGENWERK, A.G., and Volkswagen of America, Inc., Respondents. No. 2537. Supreme Court of Alaska. Sept. 10, 1975. W. Michael Moody, Atkinson, Conway, Young, Bell & Gagnon, Theodore R. Dunn and David Shimek, Matthews, Dunn & Baily, Anchorage, for petitioner. James J. Delaney, Jr., and Robert L. Eastaugh, Delaney, Wiles, Moore, Hayes & Reitman, Inc., Anchorage, for respondents. Before RABINOWITZ, Chief Justice, and CONNOR, ERWIN, BOOCHEVER and BURKE, Justices.

914

5565

OPINION ERWIN, Justice. The question presented for review is whether it was error under Civil Rule 26(b)(4) for the trial court in a products liability case to require a party to a lawsuit to disclose the names of, and submit to depositions, all experts he consults about the case before the party has indicated whether or not the experts will be called as witnesses for trial. We note initially that petitioner stated in superior court that he was willing to name all experts who had been in contact with or had possession of the defective product so that respondents could determine if any change had been made in the product. Such an offer was partially reflected in the order of the court which granted respondents' motion to give the'm leave to take the depositions of any persons who have handled, examined, or tested the seat belt assembly or the vehicle involved in the accident, or any part thereof. However, the superior court also ordered that if any deposition goes beyond inquiry into the mere physical facts of what such person did with or to the seat belt assembly or the vehicle, defendants will not be able to use such portions of the deposition at trial for any purpose without first obtaining leave of court outside the presence of the jury. Such an order actually required disclosure of the opinion of any expert consulted even though such expert had not been designated as a trial witness. The clear language of Rule 26(b)(4) is to the contrary and is controlling unless the language has been modified by court opinion. Respondents urge, and the trial court found, that the requirement of "exceptional circumstances" before requiring disclosure of the names of experts before that party has designated what experts he intends to call for trial was abrogated by the decision of this Court in State v. Leach. We conclude, however, that this interpretation of the Leach opinion is unwarranted even under the liberal canons of construction applied to discovery rules. Leach is based upon the peculiar circumstances of condemnation cases where the valuation of property is subject to recognized criteria and suppression of unfavorable appraisals would be the equivalent of permitting the government to suppress unfavorable evidence concerning the proper value of property, thus enhancing the government's position in the litigation. In Van Alen v. Anchorage Ski Club, Inc., this unique circumstance of expert opinions in the field of condemnation was again referred to: The Leach opinion went on to hold that the unique nature of appraisers' opinions in condemnation cases satisfied the "exceptional circumstances" requirement of Alaska Civil Rule 26(b) (4) (B). No unique circumstances in the area of products liability have been demonstrated which would lead us to the conclusion that the requirement of showing "exceptional circumstances" in such cases should be similarly modified. Nothing herein is intended to preclude respondents from presenting evidence to establish "exceptional circumstances" or to limit the discretion of the trial court to set time limits for the disclosure of the names of expert witnesses in order to facilitate the orderly disposition of the case in the trial court. Clearly, the court and opposing parties have a legitimate interest in early disclosure of expert testimony to prepare and expedite the trial of the action which cannot be thwarted by the self-serving declaration that the party has not yet made the decision of who will be called for trial. Clearly, the length of time since the filing of pleadings should be considered in evaluating claims in this regard. We therefore vacate the order of the superior court entered May 27, 1975, and remand this case for further proceedings in conformity with this opinion. . Review was granted herein under the provisions of Appellate Rule 23(e). Delay would have resulted in impairment of substantial legal rights of petitioner. . Civil Rule 26(b)(4) provides, in part: (A) (i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subj'ect by other means. . We are not here presented with the question of whether the names of experts consulted must be disclosed where no further discovery is requested. . 516 P.2d 1383 (Alaska 1973). . Id. at 1385. . Id. at 1386. . 536 P.2d 784 (Alaska 1975). . Id. at 788 (footnote omitted).

10554190

Steve E. B. COOPER, d/b/a Cooper Excavating & Construction Company, Appellant, v. Charles L. CARLSON and Margaret J. Carlson, Appellees

Cooper v. Carlson

1973-07-16

No. 1769

1305

1311

511 P.2d 1305

511

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:46:04.770390+00:00

CAP

Before RABINOWITZ, C. J., CON-NOR, ERWIN, FITZGERALD and BOOCHEVER, JJ.

Steve E. B. COOPER, d/b/a Cooper Excavating & Construction Company, Appellant, v. Charles L. CARLSON and Margaret J. Carlson, Appellees.

Steve E. B. COOPER, d/b/a Cooper Excavating & Construction Company, Appellant, v. Charles L. CARLSON and Margaret J. Carlson, Appellees. No. 1769. Supreme Court of Alaska. July 16, 1973. Joseph W. Sheehan, of Rice, Hoppner, Blair & Associates, Fairbanks, for appellant. Edward A. Merdes, of Merdes, Schaible, Staley & DeLisio, Fairbanks, for appellees.

3807

22646

OPINION Before RABINOWITZ, C. J., CON-NOR, ERWIN, FITZGERALD and BOOCHEVER, JJ. BOOCHEVER, Justice. This case presents another facet of the often perplexing problems involving the award of costs and attorney's fees under applicable Alaska law. Cooper contends that he was the "prevailing party" within the meaning of this court's interpretation of AS 09.60.010 and Alaska Civil Rules 54(d) and 82(a), and that it was an abuse of discretion for the trial judge to refuse to award costs and attorney's fees. The suit arose out of a dispute over the price to be paid for gravel taken from the Carlsons' property by the Cooper Excavat ing and Construction Company, gravel was used to perform resurfacing and upgrading of the Remington Road, near Delta Junction, Alaska, pursuant to a contract with the State of Alaska. The The Carlsons maintained that in addition to the $1,000 lease fee specified in the written lease, Cooper had orally agreed to pay 15$ per cubic yard for the gravel removed. The evidence established that 94,850 cubic yards of gravel were removed from the Carlsons' property. In addition to suing for this alleged contract price for the gravel, the Carlsons maintained that when they had tried to close the gate to their property (after Cooper had refused to give an accounting or payment for gravel removed) and had placed their cattle truck across the roadway to the property, that Cooper 'had secured the assistance of two state troopers who interceded on his behalf without any legal process or authority. They also maintained that Cooper had used an earth moving machine to move the cattle truck, and then immobilized it by piling gravel around it. For these actions, they asked for $25,000 in punitive damages. By way of answer, Cooper maintained that the written lease was the full and complete agreement with respect to the gravel removed from the property. Thus, he maintained that $1,000 was all that was due, and that it had been paid. He denied the claims of abuse of legal process (use of state troopers) and interference with private property (immobilizing the cattle truck). In addition, in an amended answer filed after a pretrial conference, Cooper filed a counterclaim for interference with the Company's leasehold interests. While the trial judge did find that the Carlsons were the legal owners of the property and that the lease agreement was ambiguous, he also found that the written lease was the full and complete agreement with respect to the taking of gravel. Since the $1,000 was paid, he held that Cooper was in proper possession of the property during the incidents at issue, and that there was no duty to pay 15$ per cubic yard for the gravel removed or to give an accounting. The judge found that Carlson had in fact blocked Cooper's access to the property, and that Cooper had secured the assistance of two state troopers and had moved the cattle truck. He found that Cooper had a right to do this, however, since the blockage was a "wrongful interference with defendant Cooper's lease interest in said property". With respect to the counterclaim, the court found that there was in fact an interference by Carlson with a valid lease-hold interest of Cooper, but that no damages due to this interference were shown. In conformity with these findings of fact and conclusions of law, the trial judge held that the Carlsons were to take nothing by way of Counts I and II of their complaint, and that Cooper was to take nothing by way of his counterclaim. Cooper moved for an order awarding costs and attorney's fees, and an entry of judgment awarding nominal damages on the counterclaim. This motion was denied. The sole question presented on this appeal is whether the trial court erred in failing to award costs and attorney's fees to Cooper. We thus do not reach the question of whether the court should have awarded nominal damages on the counterclaim. The trial court did not set forth its reasons for refusing to award costs and attorney's fees. It is conceivable that the court concluded, as is argued by the Carl-sons, that Cooper was not the prevailing party due to his failure to secure an award of damages on his counterclaim for interference with his leasehold rights. On the other hand, the court may have considered that Cooper was the prevailing party, but that in the exercise of discretion an award of costs and attorney's fees should be denied. When the central issues of the case and the trial court's resolution of them are considered, it is clear that Copper was the pre vailing party. Cooper prevailed on the central issue of the lease agreement constituting the sole and complete agreement between the parties with respect to removing the gravel. Thus, it was held that he had paid the full price due under the contract, was properly in control of the property and did not have to give an accounting. He prevailed on the issue of the validity of his actions in securing the assistance of state troopers and in moving the cattle truck. Cooper also prevailed on the issue of whether there was an improper interference with his leasehold interest by Carlson in blocking access to the property. Thus, the only question Cooper failed to prevail on was the argument that the judgment should be entered for nominal damages where there is an interference with a leasehold interest and no evidence of damages. Even though Cooper did not prevail on that one subsidiary issue, it is clear from this court's previous interpretations of the Civil Rules that a party may be the "prevailing party" if he is successful with regard to the "main issues in the action". The leading case in this regard is Buza v. Columbia Lumber Co., 395 P.2d 511 (Alaska 1964). In the lower court, Columbia had sued Buza for both compensatory and punitive damages for conversion of logs and trespass. Buza had counterclaimed for the value of the logs. Columbia prevailed on its claim for conversion but did not receive any additional damages. The counterclaim of Buza was denied. With respect to the contention that the award of costs to Columbia was error since it did not recover the full amount of relief prayed for, this court stated at page 514: It is true that Columbia did not recover the full measure of the relief it had prayed for but it was nonetheless the prevailing party and the only prevailing party. Judgment was entered for Columbia, declaring it to be owner "of the personal property covered by this law suit" and ordering the appellants' counterclaim dismissed with prejudice. The dictionary states that "prevailing applies esp. to that which is predominant," and it has been established by case law that the prevailing party to a suit is the one who successfully prosecutes the action or successfully defends against it, prevailing on the main issue, even though not to the extent of the original contention. He is the one in whose favor the decision or verdict is rendered and the judgment entered. (Footnotes omitted.) The most recent case to follow Buza v. Columbia Lumber Co. is the 1972 case of DeWitt v. Liberty Leasing Co., 499 P.2d 599 (Alaska 1972). In the court below, DeWitt had received a judgment on a construction contract claim of $17,736.11 and Liberty Leasing had prevailed on a counterclaim to the amount of $93.64. In reversing the trial court's determination that neither party was entitled to costs or attorney's fees, Justice Erwin stated for the majority: In Buza v. Columbia Lumber Co., 395 P.2d 511, 514 (Alaska 1964), this court discussed the meaning of the term "prevailing party" . . . Applying this standard to the case at bar, appellant clearly prevailed in the litigation below . . .As we stated in Nordin Const. Co. v. City of Nome [sic], 489 P.2d 455, 474 (Alaska 1971), "[a] simple balancing of the recovery in favor of each party makes it clear that [appellant] was the prevailing party in this law suit. . " Moreover, appellant prevailed on most of the issues disputed at trial. (Footnotes omitted.) The Carlsons contend that the counterclaim could have involved damages far in excess of those of the plaintiff's claim. Since the court found that no damages had been proved under the counterclaim, they argue that they should be regarded as the prevailing party or, in the alternative, that neither party prevailed. In Owen Jones & Sons, Inc. v. C. R. Lewis Co., 497 P.2d 312 (Alaska 1972), we held that a litigant who is successful in defeating a claim of great potential liability may be the prevailing party even though the other side is successful in receiving an affirmative recovery. In that case Lewis successfully defended against a contract claim of $119,663.12. Recovery against Lewis was permitted in quantum meruit for material salvaged in the amount of $7,-363.12, but it was clear that Lewis had prevailed on the principal issue. In the instant case, Cooper prevailed on every liability issue, and was unsuccessful only in his argument that he was entitled to nominal damages on his counterclaim. As indicated above, we thus conclude that he was the prevailing party. As the prevailing party he was entitled to an award of costs. AS 09.60.010 specifies that "the supreme court shall determine by rule or order what costs, if any, including attorney fees shall be allowed the prevailing party. . . ." Alaska Civil Rule 54(d) specifies that "[e]xcept when express provision therefor is made either in a statute of the state or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs." (Emphasis added.) In DeWitt we stated: We do not decide whether a denial of all costs would be justified in an extreme case of a vexatious prevailing party unreasonably prolonging the litigation and substantially increasing its costs. The trial court in such a case would at least be justified in disallowing particular items on the cost bill as unnecessary to the litigation. (Citations omitted.) The trial court has set forth no reasons for its refusal to award costs. Although it may be argued that the filing of Cooper's counterclaim for interference with its leasehold rights was unnecessary in view of the facts that the lease had terminated and that no damages were proved, we do not believe that this is an appropriate case to authorize a denial of all costs to the prevailing party. The counterclaim raised a peripheral issue only. Since the case will have to be remanded in any event, the trial court should determine whether particular items on the cost bill should be disallowed as unnecessary to the litigation, but should award proper items of costs. With reference to the more difficult question pertaining to the disallowance of attorney's fees, Cooper was the prevailing party. Nevertheless, the trial court in its discretion for valid reasons might deny the award of attorney's fees. Alaska Civil Rule 82(a)(1) specifies in part: Should no recovery be had, attorney's fees for the prevailing party may be fixed by t'he court as a part of the costs of the action, in its discretion, in a reasonable amount. (Emphasis added.) We have recognized in several cases that the award is discretionary with the trial judge and is reviewable on appeal only for abuse. In the case of M-B Contracting Co., Inc. v. Davis and Albritton v. Estate of Larson, valid reasons were set forth for denying the allowance of attorney's fees. In the M-B Contracting Co., Inc., case the employer prevailed, and in affirming the trial court's failure to award attorney's fees against Davis (the claimant-employee) we stated: This is not a situation in which it might have been said that the injured employee has appealed on frivolous grounds and should therefore be penalized by the taxation of an attorney's fee against him. Instead, it was the employer who had prosecuted the appeal, in this case rightly so, but thereby placing the employee in a position where he had to engage counsel to represent him in the superior court on what was then; a debatable question of law. In the Albritton case, it was held that the trial court had properly refused to award attorney's fees due to the terms of the stipulation the parties had entered into. While this court has made it clear that the award of attorney's fees to the prevailing party is not mandatory, it is equally clear that the denial of a motion for such fees may not be arbitrary or capricious or for some improper motive. The most recent statement of the necessity of a reasonable basis for denying the motion is contained in De Witt v. Liberty Leasing Co., 499 P.2d 599, 602 (Alaska 1972). Justice Erwin cited the language of Preferred General Agency of Alaska, Inc. v. Raffetto, 391 P.2d 951, 954 (Alaska 1964): The purpose of Civil Rule 82 in providing for the allowance of attorney's fees is to partially compensate a prevailing party for the costs to which he has been put in the litigation in which he was involved. The rule was not designed to be used capriciously or arbitrarily, or as a vehicle for accomplishing any purpose other than providing compensation where it is justified. (Footnote omitted.) On this basis, the court held that there was not sufficient evidence to support the denial as a penalty for prolonging the litigation. There may be valid reasons why the trial court in its discretion refused to award Cooper attorney's fees. As indicated previously, the court might have found that Cooper's counterclaim was interposed for the purpose of delay or confusion. The court might also have been affected by the equities of the situation. The court found that a binding contract had been entered into- between the parties whereby Cooper took about $13,800 worth of gravel from the Carlsons' property and paid them only $1,000. While not finding the contract unenforceable or modified by the alleged oral agreement to pay an additional 15{i per yard, the court could have found it unconscionable to allow an additional sum for attorney's fees resulting from the Carlsons presenting a legitimately arguable claim. Similarly, the court could have considered that Cooper having prevailed on his highly favorable contract, should not also receive a "pound of flesh". We are confronted with the difficulty of not knowing whether the court denied the fee in the exercise of its discretion or under the mistaken belief that Cooper was not the prevailing party. Accordingly, we find it necessary to remand the case to the trial court for the purpose of making a ruling as to allowable costs and also- to determine whether attorney's fees should be allowed or denied in its discretion, in which event the reasons for exercising such discretion should be set forth. The case is remanded for further proceedings in accordance with this opinion. . The following oases involved various aspects of questions pertaining to the award of attorney's fees: Macri v. United States, S53 F.2d 804 (9th Cir. 1965) ; Malvo v. J. C. Penney Co., Inc., 512 P.2d 575 (Alaska, 1973) ; Hodges v. Mock, 501 P.2d 1355 (Alaska 1972) ; De Witt v. Liberty Leasing Co. of Alaska, Inc., 499 P.2d 599 (Alaska 1972) ; State v. Abbott, 498 P.2d 712 (Alaska 1972) ; Owen Jones & Sons, Inc. v. C. R. Lewis Co., Inc., 497 P.2d 312 (Alaska 1972) ; Miller v. Wilkes, 496 P.2d 176 (Alaska 1972) ; Stauber v. Granger, 495 P.2d 67 (Alaska 1972) ; Hart v. Wolff, 489 P.2d 114 (Alaska 1971) ; Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971) ; Palfy v. Rice, 473 P.2d 606 (Alaska 1970) ; Connelly v. Peede, 459 P.2d 362 (Alaska 1969) ; Froelicher v. nadley, 442 P.2d 51 (Alaska 1968) ; Dale v. Greater Anchorage Area Borough, 439 P.2d 790 (Alaska 1968) ; Beaulieu v. Elliott, 434 P.2d 665 (Alaska 1967) ; Albritton v. Estate of Larson, 428 P.2d 379 (Alaska 1967) ; McDonough v. Lee, 420 P.2d 459 (Alaska 1966) ; Kenai Power Corp. v. Strandberg, 415 P.2d 659 (Alaska 1966) ; Patrick v. Sedwick, 413 P.2d 169 (Alaska 1966) ; Decker v. Aurora Motors, Inc., 409 P.2d 603 (Alaska 1966) ; Preferred General Agency of Alaska, Inc. v. Raffetto, 391 P.2d 951 (Alaska 1964) ; Davidsen v. Kirkland, 362 P.2d 1068 (Alaska 1961). . Alaska Civ.R. 54(d) provides: Costs. Except when express provision therefor is made either in a statute of the state or in these rules, costs shall he allowed as of course to the prevailing party unless the court otherwise directs. The procedure for the taxing of costs by the clerk and review of his action by the court shall be governed by Rule 79. (Emphasis added.) Alaska Civ.R. 82(a) provides: Allowance to Prevailing Party as Costs. (1)Unless the court, in its discretion, otherwise directs, the following schedule of attorney's fees will be adhered to in fixing such fees for the party recovering any money judgment therein, as part of the costs of the action allowed by law: Attorney's Fees in Average Cases Without Trial Non-Contested Contested 20% 15% First $2,000 25% 15% 12.5% Next $3,000 20% 12.5% 10% Next $5,000 15% 7.5% 5% Over $10,000 10% Should no recovery he had, attorney's fees for the prevailing party may he fixed hy the court as a part of the eosts of the action, in its discretion, in a reasonable amount. (2) In actions where the money judgment is not an accurate criteria [sic] for determining the fee to be allowed to the prevailing side, the court shall award a fee commensurate with the amount and value of legal services rendered. (3) The allowance of attorney's fees by the court in conformance with the foregoing schedule is not to be construed as fixing the fees between attorney and client. (Emphasis added.) AS 09.60.010 provides: Costs allowed prevailing party. Except as otherwise provided by statute, the supreme court shall determine hy rule or order what costs, if any, including attorney fees, shall he allowed the prevailing party in any case. (Emphasis added.) . Accord, Nordin Constr. Co. v. City of Nome, 489 P.2d 455, 474 (Alaska 1971). . 499 P.2d 599, 602 n. 13. . In Albritton v. Estate of Larson, 428 P.2d 379 (Alaska 1967) (involving attorney's fees where the issue was an offer of judgment under Rule 68), the court stated through then Justice Rabinowitz: As we have noted, Civil Rule 82(a) provides for the allowance of attorney's fees as costs to "the party recovering any money judgment," to "the prevailing party," and "to the prevailing side." In our view, we need not decide whether, under the circumstances of this record, appellants were prevailing parties within the meaning of Civil Rule 54(d) and Civil Rule 82(a)(1). Assuming that appellants were the prevailing parties, in the circumstances under which the question was presented to the trial judge for determination, he was vested with wide discretion as to whether attorney's fees should be awarded. On the record in this appeal we cannot say that the superior court abused its discretion in failing to award at torney's fees to appellants. (Emphasis added, footnotes omitted.) A similar result was reached in M-B Contracting Co., Inc. v. Davis, 399 P.2d 433, 437 (Alaska 1965) where the court upheld the refusal to award fees to the "prevailing party": The appellant's claim of entitlement to attorney's fees as the prevailing party presents a somewhat different problem. In Civil Rule 82 is published a schedule of attorney's fees to be adhered to by the court in fixing such fees as a part of the costs of the action for the party recovering a money judgment therein, "[u]n-less the court, in its discretion, otherwise directs . . . . " Then there is added this short paragraph: "Should no recovery be had, attorney's fees for the prevailing party may be fixed by the court as a part of the costs of the action, in its discretion, in a reasonable amount." (Emphasis added by court.) The wording of this paragraph leaves it in the sound discretion of the trial court to decide, first of all, whether the prevailing party should receive an attorney's fee at all . The appellant recognizes the broad discretion vested in the superior court by Civil Rule 82 in the matter of awarding attorney's fees, but urges that the court abused its discretion and acted arbitrarily and capriciously in withholding from the prevailing party an attorney's fee. No sufficient showing has been made, nor do we find one in the record, that the trial judge abused his discretion in denying an attorney's fee to the appellant. (Emphasis added, footnotes omitted.) . With regard to what constitutes an abuse of discretion, this court has stated : [T]he matter of awarding attorney's fees is committed to the discretion of the trial court. We shall interfere with the exercise of that discretion only where it has been abused. An abuse of discretion is established where it appears that the trial court's determination as to attorney's fees was manifestly unreasonable. (Footnotes omitted.) Palfy v. Rice, 473 P.2d 606, 613 (Alaska 1970). In that case, the court held that an award of $3,700 to a party who had successfully defended a suit (i. e., no "money judgment") was "unreasonably low" due to the factually complex nature of the suit, the three and one-half years of preparation, the potential liability, the three weeks of trial, and collateral actions that were necessary for discovery. . Cited in note 5, supra. . M-B Contracting Co., Inc. v. Davis, 399 P.2d 433, 437 (Alaska 1965). The case involved special considerations applicable only to certain provisions of the Alaska Workmen's Compensation Act (AS 23.30.-145). . Albritton v. Estate of Larson, 428 P.2d 379 (Alaska 1967). . See De Witt v. Liberty Leasing Co., 499 P.2d 599, 602 n. 12 (Alaska 1972), for other cases citing this language. . There may be valid reasons other than those mentioned in this opinion for the exercise of the court's discretion. . We realize that referring to "equities" presents a rather ephemeral standard dependent upon the sense of justice of the individual presiding. We do not intend to imply that in each ease the court should evaluate the purity of color of the chargers on which each side rides. We are well aware that judges may have difficulties in color perception, or even be color blind. Nevertheless, there are cases involving substantial litigable questions in which to require the losing party to pay a sizeable attorney's fee would obviously be unwarranted. .Shakespeare, The Merchant of Venice, Act IV, Scene 1.

10554204

Elinor B. AYDLETT, Appellant, v. Dale HAYNES and Howard C. Aydlett, Appellees

Aydlett v. Haynes

1973-07-13

No. 1762

1311

1315

511 P.2d 1311

511

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:46:04.770390+00:00

CAP

Before RABINOWITZ, C. J., and CONNOR, BOOCHEVER, and FITZGERALD, JJ.

Elinor B. AYDLETT, Appellant, v. Dale HAYNES and Howard C. Aydlett, Appellees.

Elinor B. AYDLETT, Appellant, v. Dale HAYNES and Howard C. Aydlett, Appellees. No. 1762. Supreme Court of Alaska. July 13, 1973. Sandra K. Saville, of Kay, Miller, Lib-bey, Kelly, Christie & Fuld, Anchorage, for appellant. George N. Hayes and Robert L. Eas-taugh, of Delaney, Wiles, Moore, Hayes & Reitman, Inc., Anchorage, for appellee Ayd-lett. No appearance for appellee Haynes. Before RABINOWITZ, C. J., and CONNOR, BOOCHEVER, and FITZGERALD, JJ.

2056

12523

OPINION FITZGERALD, Justice. This appeal concerns the applicability of the collateral source rule to medical expenses awarded in an interspousal tort action where the tort-feasor husband was a member of the Armed Forces and the injured wife received, at no cost to her, medical care and treatment from Air Force facilities. Appellant Elinor B. Aydlett was a passenger in a motor vehicle operated by her husband, appellee Sgt. Howard Aydlett. The Aydlett vehicle was involved in a collision with two other vehicles operated by Sgt. Gerald L. Vanzant and Sgt. Dale Haynes. As a result of the accident, Mrs. Aydlett sustained injuries to her neck, back and waist. For over a year she received regular medical attention for her injuries at Air Force medical facilities. In June of 1969 appellant made several visits to a private physician, Dr. Wichman, to receive treatment. Dr. Wichman advised Mrs. Aydlett that an operation on her back would be necessary in order to obtain complete relief from the pain. He also arranged for ap pellant to resume treatment at the Air Force facilities since it was difficult for her to afford private treatment. Later in his testimony at trial the doctor estimated the expense of such future medical and surgical care to be "in the neighborhood of $5,000." Appellant testified that she intended to have the operation performed by a private physician in New Mexico where her husband was to be reassigned in the near future. On June 12, 1969, appellant brought her personal injury action against the operators of each of the three vehicles involved in the collision. The jury returned a general verdict of $25,000 in favor of Mrs. Aydlett against Sgt. Aydlett and Sgt. Haynes, jointly and severally. In answer to a special interrogatory the jury found that the reasonable value of the medical care and treatment of Mrs. Aydlett's injuries amounted to $5,400. The interrogatory, however, did not apportion the $5,400 between the amount incurred for her past medical expenses and the value of her future medical care and treatment. Judgment in the amount of the verdict was entered by the superior court. After entry of judgment, Sgt. Aydlett moved to reduce the amount awarded to his wife by $5,400, the entire amount allowed by the jury for her medical expenses. In its opinion, the superior court granted Sgt. Aydlett's motion to reduce the judgment by $5,400. The trial court concluded that since the medical care and treatment furnished Mrs. Aydlett for her injuries was provided to her at no cost due to her status as a military dependent, it would be unjust to allow her to recover any amount of medical expenses. The trial court entered final judgment on the jury's award, after deducting the medical expenses, and Mrs. Aydlett appealed. During oral argument on appeal, attorneys for appellant and appellee stipulated that the value of past medical expenses was $400, and that the reasonable value of future medical expenses was $5,000. The only issue raised on this appeal is whether in a personal injury action between husband and wife, where the wife received medical attention at no expense to her as a military dependent, the amount of judgment should be reduced by the value of past and future medical services. For the reasons set forth, we conclude that the trial court's reduction of the verdict by the full amount of $5,400 was error. The collateral source rule, as applied in Alaska, prohibits a tort-feasor from benefiting from payments made to the injured party by insurance companies or other third parties. If Mrs. Aydlett, as a military dependent, has an independent right to receive medical services from the government, then a strong argument may be made that the collateral source rule applies, and that appellee is obliged to pay for the value of past medical services. If, however, appellant's entitlement to medical services is derivative, being dependent entirely upon the military status of her husband, the wrongdoer, then the rule is inapplicable because the' services are not being provided by a truly collateral source. Reduction of the judgment for past medical expenses on appellant's motion would then be proper, for in effect, Sgt. Aydlett would have already compensated his wife for the value of the past medical services and he should not be compelled to pay for such services a second time. The federal statute under which dependents of servicemen are entitled to medical services is the Medical and Dental Care Act, 10 U.S.C. § 1071 et seq. Section 1076(a) of that enactment provides: (a) A dependent of a member of a uniformed service who is on active duty for a period of more than 30 days, or of such a member who dies while on that duty, is entitled, upon request, to the medical and dental care prescribed by section 1077 of this title in facilities of the uniformed services, subject to the availability of space and facilities and the capabilities of the medical and dental staff. A dependent's entitlement to medical care and treatment arises by reason of a serviceman's membership in the Armed Forces. The primary purpose of military medical facilities is to serve the members of the Armed Forces. The use by military dependents of such services is secondary. A dependent must make a request for medical services which may be denied if either facilities or personnel are unavailable, or if a spouse obtains a divorce. The medical or dental officer in charge of the facility is required to determine that the provision of medical services to dependents will not interfere with the primary mission of such facilities. Moreover, medical services furnished to a serviceman and his dependents have been regarded as a form of compensation. We conclude that Mrs. Aydlett has no independent and enforceable "right" to receive such medical services, but that her entitlement thereto is conditioned upon her husband's membership in the Armed Forces. A contrary conclusion is not compelled by appellant's authorities. Grigalauskas v. United States relied upon by Mrs. Aydlett for the proposition that military dependents have an independent right to free medical treatment at military facilities is inapposite. In that case, a tort claim was brought by a military dependent against a military doctor for negligent medical treatment. Bringing an action for negligence against the federal government under the Tort Claims Act, however, has nothing to do with the claim of a military dependent to medical services under the Medical and Dental Care Act. Nor are the several Federal Employers Liability Act cases cited to us by appellant in point, since we are here concerned with an interpretation of the Medical and Dental Care Act, providing medical services to members of the armed forces, and, under certain conditions, to their dependents. In view of our conclusions that Mrs. Ayd-lett's entitlement to receive military medical services is derived through her hus band's status as a member of the Armed Forces, and that such services constitute a form of compensation to him, we hold that the collateral source rule does not apply to the value of the medical services appellant received from the Air Force medical facilities at Elmendorf. Thus, the superior court's reduction of judgment by $400, the value of the past medical services, was proper. The superior court's reduction of judgment by the value of the future medical services, however, is more problematical. Appellant maintains that even if the collateral source rule does not apply to the value of her past medical services, she is still entitled to recover for the value of her future medical care and treatment. We agree. Clearly, appellant is not obliged, either by statute or common law, to seek her future medical care or treatment at a military medical facility. She testified at trial that upon her husband's reassignment to New Mexico, she intended to have the back operation performed by a private physician. No testimony was adduced at trial to indicate that Mrs. Aydlett would continue to receive part or all of her future medical care and treatment at a military medical facility. Accordingly, we hold that the superior court's reduction of judgment by the value of $5,000 for future medical services was error. Reversed and remanded to the superior court with instructions to increase the amount of the judgment entered below by $5,000. ERWIN, J., not participating. . Interspousal immunity has been abolished in Alaska. Armstrong v. Armstrong, 441 P.2d 699 (Alaska 1968) ; Cramer v. Cramer, 379 P.2d 95 (Alaska 1963). . Alaska adopted the collateral source rule in Ridgeway v. North Star Terminal and Stevedoring Company, 378 P.2d 647 (Alaska 1963), where this court stated: [A] tort-feasor is not entitled to have his liability reduced merely because plaintiff was fortunate enotfgh to have received compensation for his injuries or exjjenses from a collateral source . . . . (Footnote omitted.) 378 P.2cl at 650. See also Luth v. Rogers and Babler Const. Co., 507 P.2d 761, 767 n. 22 (Alaska 1973), where we noted that the collateral source rule was rooted in the Restatement of Torts, § 920(e) (1939) ; see generally R. C. Maxwell, The Collateral Source Rule in the American Law of Damages, 46 Minn.L.Rev. 669 (1962) ; Note, 42 Geo.L.J. 556 (1957). . 10 U.S.C. § 1076(c). In interpreting the forerunner of the Medical and Dental (''are Act, the Fifth Circuit in Denny et ux. v. United States, 171 F.2d 365 (5th Cir.) cert. denied, 337 U.S. 919, 69 S.Ct. 1161, 93 L.Ed. 1723 (1949), held that the federal government's "obligation" to provide free medical services to military dependents was discretionary in nature. Specifically, the court stated: It becomes manifest that the phrase 'whenever practicable', as it appears in both the above statute and regulation, clearly stamps the obligation of the Government to provide medical service to Army dependents as discretionary in character. 171 F.2d at 366. . In Plank v. Summers, 203 Md. 552, 102 A.2d 262 (1964), the court observed: Ilere also it might well be considered that medical and hospital services supplied by the Government to these members of the United States Navy were part of the compensation to them for services rendered, and therefore that by their service in the Navy they had paid for these. 102 A.2d at 267. Wee also Note, 42 Geo.L..T. 556, 560 (1954). . 103 F.Supp. 543 (D.Mass.1951), aff'd 195 F.2d 494 (1st Cir. 1952). . New York, New Hampshire and Hartford Ry. Co. v. Leary, 204 F.2d 461 (1st Cir. 1953) ; Sinovich v. Erie Ry., 230 F.2d 658 (3d Cir. 1956) ; see also Overland Const. Co. v. Sydnor, 70 F.2d 338 (6th Cir. 1934) ; A. H. Bull, S.S. Co. v. Ligon, 285 F.2d 936 (5th Cir. 1960). . See Feeley v. United States, 337 F.2d 924 (3d Cir. 1964) ; Christopher v. United States, 237 F.Supp. 787 (E.D.Pa. 1965). . We have not overlooked the probability that Sgt. Aydlett's motion to reduce his wife's judgment was not realistically in his financial interest. Testimony at trial indicated that Mrs. Aydlett had frequently worked during her years of marriage to Sgt. Aydlett in order to supplement the family income. Thus, appellee's motion to reduce judgment raises the possibility of conflict of interests between him and a nonparty which may be the real party in interest in this action. Ordinarily, in personal injury litigation, the real party in interest rule creates no difficulty as long as the interests of the insured tort-feasor and his insurer are compatible. In such cases there is little to be gained by introducing insurance into the proceedings. However, where the case involves an intra-family tort action, the trial judge must take care to assure that the actual interests of all parties are fairly represented. We note that at least one jurisdiction has approved, by judicial decision, a direct right of action for the injured party against the tort-feasor's insurer. Shingleton v. Bussey, 223 So.2d 713 (Fla.1969). Here, however, this matter was not raised at trial or properly preserved for appeal, and need not be considered now.

10554143

STATE of Alaska, Appellant, v. Dewey SKAN, Jr., Appellee

State v. Skan

1973-07-16

No. 1787

1296

1297

511 P.2d 1296

511

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:46:04.770390+00:00

CAP

Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, JJ.

STATE of Alaska, Appellant, v. Dewey SKAN, Jr., Appellee.

STATE of Alaska, Appellant, v. Dewey SKAN, Jr., Appellee. No. 1787. Supreme Court of Alaska. July 16, 1973. John E. Havelock, Atty. Gen., Juneau, Harold M. Brown, Dist. Atty., Ketchikan, for appellant. Richard L. Whittaker, Ketchikan, for appellee. Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, JJ.

784

4762

OPINION PER CURIAM. In this case the state appeals from the dismissal of the indictment for burglary against appellee Dewey Skan, Jr. The trial court dismissed the indictment against Skan because "the Grand Jury returned the indictment based upon uncorroborated hearsay statements of an alleged accomplice." The only evidence presented to the grand jury concerning appellee Skan's alleged participation in the burglary were the statements made by an alleged accomplice, Marvin George, which were reported to the grand jury by State Trooper Reith. This court is asked to determine if the evidence presented to the grand jury is sufficient to support the indictment against Dewey Skan. We have held that an indictment may be validly based on hearsay testimony or upon the testimony of an accomplice. However, in Taggard v. State, 500 P.2d 238 (Alaska 1972), we set out a two-step analysis to be used in examining a record of a grand jury proceeding when there is a challenge to the sufficiency of the evidence supporting the indictment. The first step is to determine whether the evidence presented a sufficiently detailed account of criminal activity and the defendant's participation in this activity so that if unexplained or uncontradicted it would warrant a conviction of the person charged with an offense by the judge or jury trying the offense. (Footnote omitted.) Id. at 242. This prong is satisfied in the case at bar because the alleged criminal activities of Skan were described in adequate detail. To satisfy the second prong, evidence must be presented to the grand jury whereby it can evaluate the hearsay statement of the declarant to determine its reliability. As in Tag gar d, the evidentiary basis for the indictment in the case at bar is insufficient because it did not meet the requirements of this second test. In the instant case, George's hearsay statements seemed to be conflicting and based in part upon his self-interest in reducing his own criminal role. When it was read to the grand jury by the state trooper, there was no opportunity to correct or explain these inconsistencies. The prosecutor presented no evidence to verify any aspects of George's hearsay testimony as they related to the role of Skan in the alleged burglary. There were no reports of anyone seeing Skan at the scene of the crime or of Skan spending an unusual amount of money after the burglary. In short, the hearsay evidence lacked sufficient reliability to support an indictment. Thus, the superior court judge properly dismissed this indictment and his decision is affirmed. . The contents of the statement of Marvin George are set forth in the companion case of State v. George, Op. No. 905, 511 P.2d 1293, p. 1294, n. 4 (Alaska 1973). . State v. Parks, 437 P.2d 642, 645 (Alaska 1968). . Merrill v. State, 423 P.2d 686, 695 (Alaska 1967). . George seemed to be alleging that he came upon the scene when the burglary was in progress, was forced to participate, that Skan forced him to keep quiet and accept some of the fruits of the crime. . There is evidence to show that a third person was spending unusual amounts of money which he claimed to have received from George. . We have stated an indictment may in certain circumstances be based on hearsay evidence alone. Taggard v. State, 500 P.2d 238 (Alaska 1972) ; Burkholder v. State, 491 P.2d 574 (Alaska 1971) ; State v. Parks, 437 P.2d 642 (Alaska 1968). However, in this case, the prosecution gave no explanation as to why hearsay evidence was used. The American Bar Association standards discuss cases where the prosecutor believes that a grand jury witness is a potential defendant. In those instances the prosecution shoulf give due regard for the privilege against self-incrimination and the right to counsel requires that the prosecutor advise such a person, before seeking to require his testimony before a grand jury, that he may be implicated and that he should seek independent legal advice. American Bar Association Standards Relating to the Prosecution Function and the Defense Function § 36, at 89-90 (Approved Draft, 1971). In the instant case there is no evidence that George was advised of his rights and refused to testify. Moreover, there is no indication that George was not readily available as a witness. Thus, even if the evidence was sufficient, this indictment would be defective without an explanation of why George was not called before the grand jury.

10552793

Henry James LEE, Appellant, v. STATE of Alaska, Appellee

Lee v. State

1973-07-09

No. 1715

1076

1079

511 P.2d 1076

511

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:46:04.770390+00:00

CAP

Before RABINOWITZ, C. J., and CONNOR, ERWIN, and BOOCHEVER, JJ.

Henry James LEE, Appellant, v. STATE of Alaska, Appellee.

Henry James LEE, Appellant, v. STATE of Alaska, Appellee. No. 1715. Supreme Court of Alaska. July 9, 1973. Herbert D. Soli, Public Defender, Larry Kulik and Susan Burke, Asst. Public Defenders, Anchorage, for appellant. John E. Havelock, Atty. Gen., Juneau, Seaborn J. Buckalew, Dist. Atty., Stephen G. Dunning, Asst. Dist. Atty., Anchorage, for appellee. Before RABINOWITZ, C. J., and CONNOR, ERWIN, and BOOCHEVER, JJ.

1426

8633

OPINION ERWIN, Justice. This is an appeal from a conviction and subsequent sentence of four years for possession of the narcotic drug, heroin. This case arose August 6, 1971, when police officers arrested appellant at his home pursuant to a warrant and searched his clothing prior to removing him to the state jail. The search of his pants pockets revealed four balloons, including three which contained a residue of white powder. Chemical analysis determined that the residue of powder contained in one balloon was heroin. Appellant alleges the trial court committed error in admitting the laboratory analysis of the material found in one balloon in evidence at his trial on the grounds the entire amount found in the balloon was used in analysis and therefore he was denied due process of law because he was deprived of independent examination of this substance. He further urges that the trial court erred in failing to instruct the jury that they must find recent possession of a usable quantity of a narcotic drug before they could convict him of unlawful possession of such drug. We find that due process of law does not require that the defendant be permitted independent expert examination of evidence in the possession of the prosecution before such evidence is introduced at the trial. Under normal practices Criminal Rule 16 envisions the discovery of such evidence. In those cases where expert analysis exhausts the substance there is clearly no error in the admission of evidence regarding the analysis in the absence of allegations and proof of deliberate destruction, or deliberate attempts to avoid discovery of evidence beneficial to the defense. Both the aforementioned factors are conceded by appellant to be inapplicable to the case at bar. The concept of due process of law in the trial of a criminal defendant apart from trials conducted in violation of ex press constitutional mandates is violated "only where the barriers and safeguards are so relaxed or forgotten . . . that the proceeding is more a spectacle . or trial by ordeal . . . than a disciplined contest." There is no indication in this case of such problems. This case was conducted with commendable speed in complete compliance with normal rules of court. It is apparent that the alleged problem might have been further minimized if appellant had secured expert examination of the contents of two of the remaining balloons which still contained a residue of powder even at the time they were introduced in evidence at the trial of this case. The contention of appellant that he could not be convicted of unlawful possession of a narcotic drug unless a usable quantity of the drug was found was discussed and rejected in Judd v. State, where this court specifically stated: We find that the purpose of the Alaska Narcotic Drug Act is to deter improper traffic in narcotic drugs by making it illegal to knowingly possess certain drugs. Where the facts of a case show knowing possession of illegal drugs, it is unnecessary that a usable quantity be found so long as a sufficient quantity of the drug is found to permit proper identification. If all of the evidence in the case, taken together, supports the jury's findings of knowing possession beyond a reasonable doubt, the conviction is proper. Since the instruction given in the case at bar was taken from this language in Judd, we find no error by the trial court in refusing appellant's requested instructioiis. The judgment and conviction is affirmed. FITZGERALD, J., not participating. RABINO WITZ, C. ]., and CONNOR, J., dissenting individually. . United States v. Augenblick, 393 U.S. 348, 356, 89 S.Ct. 528, 21 L.Ed.2d 537, 545 (1969). . See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215, 218 (1963). . United States v. Bryant, 439 F.2d 642, 651 (D.C.Cir.1971). . United States v. Augenblick, 393 U.S. 348, 356, 89 S.Ct. 528, 534, 21 L.Ed.2d 537, 545 (1969) (citations omitted). . 482 P.2d 273 (Alaska 1971). . Id. at y. 280 (footnote omitted). . It is appropriate to note that the quantity of a narcotic drug in possession of a defendant is relevant to the inquiry of whether under all the facts and circumstances of a case the defendant knowingly possessed narcotic drugs. In the case at bar there is evidence of knowing possession. Investigator Jones, an experienced narcotics enforcement officer, testified that during the year or two prior to trial, toy balloons were used to package heroin at the street level in about 85 percent of cases coming to his attention. Agent Wood testified similarly, and also stated that capsules were used for the same purpose. Several balloons and a quantity of unidentified capsules were found on the defendant at the time of this arrest. Two of the balloons still contained an unanalyzed residue of white powder at the time of the trial.

10545401

Norman LeRoy JOHNSON, Appellant, v. STATE of Alaska, Appellee

Johnson v. State

1973-06-15

No. 1477

118

127

511 P.2d 118

511

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:46:04.770390+00:00

CAP

Before RABINOWITZ, C. J., and CON-NOR, ERWIN and BOOCHEVER, JJ.

Norman LeRoy JOHNSON, Appellant, v. STATE of Alaska, Appellee.

Norman LeRoy JOHNSON, Appellant, v. STATE of Alaska, Appellee. No. 1477. Supreme Court of Alaska. June 15, 1973. William H. Fuld, of Kay, Miller, Libbey, Kelly, Christie & Fuld, Anchorage, for appellant. Robert L. Eastaugh, Asst. Dist. Atty., Seaborn J. Buckalew, Jr., Dist. Atty., Anchorage, John E. Havelock, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C. J., and CON-NOR, ERWIN and BOOCHEVER, JJ.

5742

34266

RABINOWITZ, Chief Justice. Norman LeRoy Johnson was convicted of three counts of second degree murdei following a non-jury trial in superior court. The principal contentions raised in this appeal concern the doctrine of diminished capacity and burden of proof as it relates to the defense of insanity. The relevant facts and pertinent expert testimony relating to the defense of insanity will be set forth in some detail. Appellant Norman Johnson moved to Alaska in 1969 with his parents. His father was employed by the Alaska State Housing Authority and during January of 1970, was working in Kiana while Norman was attending Anchorage Community College. Thinking that his son would enjoy a trip into Alaska's interior, Mr. Johnson invited Norman, who was then 19 years old, to spend his semester break vacation with him in Kiana. After Norman had been in Kiana for a few days, his father arranged for him to go on a caribou hunt. It was planned that Norman would accompany Freddy Jackson, a Native and a friend of Norman's father, to a hunting camp on the Kobuk River, about 70 miles from Kiana, where they would join two other Natives, Clarence Arnold and Oscar Henry. Norman and Freddy Jackson left Kiana by snowmobile. They reached camp that evening, had dinner with Arnold and Henry, and then went to bed. The following morning they began to hunt. Norman was riding in a sled behind Jackson's snowmobile. During the hunt, Norman was thrown from the sled and left behind by the hunters. When he caught up with them eventually by foot, he found that they had finished with their hunting and were butchering the caribou they had killed. At this time Norman watched Arnold and Henry cleaning and butchering a female caribou that apparently had an unborn calf in its womb. He later told Dr. Ure, one of the examining defense psychiatrists that . . . this baby never had a chance, you see, and he thought that Freddy . . . was a little callous in not too caring and he had the same feeling of feeling sick to his stomach. After this episode, Norman accompanied Jackson, Arnold and Henry back to the camp. Upon returning the men prepared dinner. During these preparations, another Native, Clarence Wood, stopped by the campsite. He stayed for about an hour, had dinner, and then departed on his way back to Ambler at about 7 p. m. Wood testified through an interpreter that while he was there Norman lay on his bed, all huddled up, that he hardly said anything, but would answer when spoken to. Other than that, he did not notice anything unusual about Norman. Sometime after Wood left the campsite, Jackson, Arnold, and Henry began making preparations for bed. Norman later told the state troopers that: I got up to go to the bathroom and I went outside and I went and I got my rifle and I just started firing into the tent. The prosecution's evidence showed that the bullets were fired from outside the tent, and that Jackson, Arnold and Henry were inside the tent during the shooting. At one point, Jackson attempted to come out of the front of the tent and was shot by Johnson as he was coming out. All three men had numerous bullet wounds. Following the shooting, Johnson went back inside the tent and put on some more clothing. After failing to start one of the snow machines, he then started out on foot for Kiana, following a snowmobile trail leading up the Kobuk River. The next day two hunters were flying in a small airplane in the Kobuk River area searching for wolves. They noticed a dark object by the river and when they flew down close to the ground, they realized it was a man. They landed the plane, and the man told them he was Norman Johnson, was from Kiana, and that three men were dead in the camp down the river. Trooper Boatright of the Alaska State Troopers testified that he talked to Norman briefly on the day he was taken back to Kiana. He stated Norman was still under shock. He was cold, he was shivering, and all he could indicate to me at that time was that his name was Norman Johnson and that he had been up at a camp where there had been a shooting and he didn't recall too much more of what happened. The following day Boatright talked to Norman again. At this time Boatright found Norman to be "calm and able to converse without any trouble." During this interview, Norman told Boatright an exculpatory tale concerning the events of his hunting trip with Jackson, Henry and Arnold. Two days later Norman was taken to trooper headquarters for another interview. In the course of this interview, Norman confessed to having committed the shootings at the camp. Norman Johnson's defense at trial was based on showing that at the time of the slayings he was suffering from a mental disease or defect such that he was not responsible for his actions. In this regard, Dr. J. Ray Langdon testified that he had examined Norman and had reviewed the records of the investigation, some of Norman's previous medical history, as well as results of tests performed by a clinical psychologist. Dr. Langdon found that Norman was not at the time of the' examination overtly psychotic or irrational, but that the tests and history showed evidence of severe mental illness, namely, a latent schizophrenic process which, if it became an overt psychosis, would most likely be of a paranoid or persecutoid type. Dr. Langdon stated that the circumstances surrounding the incident as related to him by Norman could have accounted for a "decompensation" of the schizophrenic process resulting in an overt but brief psychotic episode. He also stated it was possible that because Norman was in a totally unfamiliar situation, in the extremely cold Arctic wilderness, with three Eskimos, his mental illness might have become overt. The doctor also testified that the emotion that would accompany the type of acute decompensation that Norman went through would be "primarily a panic." Finally, Dr. Langdon testified that in his opinion I feel [Norman] probably knew the nature and quality of actions but that he did not believe it was criminal or wrongful at the time. Dr. Barbara Ure, a psychiatrist, also testified in Norman's behalf. On the basis of extensive interviews, Dr. Ure found evidence that Norman was a fetishist. Her opinion as to why Norman had shot and killed his three hunting companions was as follows: [T]hat the ego of the fetishist is what is involved in this killing, . . . is he identified with the baby and the mother [caribou] the lost — compromised his own body image which was already fairly well compromised, that is, he was insecure as to who he was, having lost contact with his culture, with his geography, he was pretty much displaced [T]hen these men would become the enemy, you see, and he — they—he could be killed by them just like this caribou was and this baby caribou . . . really it's the baby that never had a chance because this is Norman in a certain sense . . . who really never had a chance . . . . [H]e did not get up to urinate, he did have an erection, not a sexual sort of thing but in a sense of asserting his identity, preserving his — his survival and that it was totally incongruous to even consider the possibility of masturbating but then there's one other point that is when a fetishist cannot deny his identification with his mother he generally does break down, you see, and so this is what I think did happen and that I do believe he did see the tent . and that his survival was threatened and that he doesn't know what he was doing and that he shot in self defense. Finally, Dr. Ure testified in response to an inquiry as to whether Norman knew the nature and quality of his act when he did the shooting: For the moment he didn't realize what he was doing. He knows that you're not supposed to shoot people . . . but for the moment this took a second place because he had to save himself from an —a danger which suddenly became very real. This danger was inside but he thought it was outside. . well he knew it was wrong as soon as he had done it but not at the time he was doing it. She also stated that she believed his act was the product of mental disease. Dr. John Rollins testifed for the state. He had examined Norman pursuant to court order. In his opinion, Norman showed no signs of mental disease, disorder or defect that would preclude him from being able to conform to the law. He further testified that he believed Norman had the capacity to deliberate about the acts he was committing, particularly because of his ability to recall details of the events. Dr. Walter Rapaport testified for the state on rebuttal. Rapaport had not examined Norman. He was permitted, over defense objection, to review a transcript of the testimony of Drs. Langdon and Ure, as well as their reports prior to testifying. Rapaport found no evidence of mental illness in Norman Johnson. He stated he believed Johnson was capable of premeditation, malice aforethought, and that Johnson had the mental capacity to appreciate the nature and quality of his acts as well as their wrongfulness. His opinion was based on the fact that Norman remembered a good deal about the episode, the evidence of flight and concealment, and the absence generally of any symptoms of major mental illness. He stated that fetishism is not a symptom characteristic of any particular illness, although it may be associated with mental illness. Regarding this case, he stated: [T]his [evidence of fetishism] in nowise [sic] would alter my opinion as to his mental capacity relative to issues which I have given an opinion. The superior court applied the American Law Institute Model Penal Code test for criminal insanity. Although it placed the burden of proof as to the insanity upon appellant, more particularly, Johnson was required to overcome the presumption of sanity by a preponderance of the evidence. In its findings regarding Johnson's state of mind, the trial court stated in part: Applying the [A.L.I.] rule to the testimony, primarily of the psychiatrists and by further removing the speculative aspects of their testimony or their subjective presumptions, I find that, using the ALI test, the Defendant does not meet the test and is, therefore, responsible for his criminal conduct. His substantial recall of the sequence of events during the shooting, attempts to cover his actions and withholding details attempting to avoid responsibility also all tend to show a substantial capacity to appreciate the wrongfulness of his conduct, and an attempt to conform his conduct to the requirements of law. I recognize that some testimony exists that Defendant may not have been aware of what he was doing, but there is no testimony that any such lapse was, except by speculation and conjecture, due to any substantial mental and disease or defect. I thus find that the Defendant has failed to carry the burden by a preponderance of the evidence that his actions were caused by mental illness. The superior court then went on to determine the appropriate degree of homicide stating: There is testimony that Defendant is below average mentally and further that his conduct is not entirely normal, although not mentally ill as defined by the test used. Defendant suffers from a fetishistic disorder, and there is question concerning his development towards maturity. Further, Defendant probably underwent some stresses due to the cold; remoteness of the area where the incident took place; the foreign language used around him and perhaps even the inability of Defendant to keep up with the experienced hunters. I merely review this to assist in determining the ability of the Defendant to premeditate, and to experience malice aforethought. The stresses, individually, are not sufficient to be seriously considered. Collectively, however, it could with any provocation such as anger, fear, jealously, etc., cause some irrational or impassioned behavior. The description of the hunting scene, the testimony of the psychiatrists highlighting feelings of persecution and the evidence in general fails to show any premeditation. [T]he state has proven beyond a reasonable doubt the unlawful killing by a Defendant presumed sane. The facts show that the defendant acted in a deliberate manner while performing the homicidal acts. Such substantiates the element of malice aforethought necessary for a verdict of murder in the second degree and I so find the Defendant. The superior court subsequently determined that Johnson should receive three concurrent terms of life imprisonment "with the understanding that he obtain psychiatric treatment and that the parole board release him when they are convinced that he is no longer a danger to society and he has received his treatment." The judgment of conviction entered by the superior court contained a reference to Norman Johnson's need for psychiatric care. The judgment omitted any reference to the fact that Johnson was to be released when the parole board was convinced that he is no longer a danger to society. Johnson has appealed from the trial court's judgment of conviction and the sentences which were imposed. Johnson's first specification of error is to the effect that the trial court erred in failing to grant his motion for judgment of acquittal made at the close of the prosecution's case as to all counts of first and second degree murders. Johnson argues that even if the trial court properly found that he was not suffering from a mental disease such that he should be completely absolved of criminal responsibility, the court should have applied the doctrine of diminished capacity. Under that doctrine, Johnson contends that since the prosecution's evidence failed to show malice, an essential element of both first and second degree murders, he was erroneously convicted of three counts of second degree murder. The state argues that there was sufficient evidence to support a finding that Johnson acted out of malice and was guilty of homicide in the second degree. Viewing the evidence in the most favorable light, the state asserts that the following facts show the existence of malice and purpose to kill: (1) Johnson had to leave the tent to get to the rifles; (2) the first shots were fired from his own rifle, indicating selection; (3) to use his rifle it was first necessary for Johnson to remove it from its case; (4) Johnson had to go to where the rifles were stored; (5) he fired at least 10 shots from at least two rifles; (6) the shots showed aim, as judged by the terrible destruction of life, by the patterns of holes in the tent and in the victims, and by the shot which struck Freddy Jackson as he emerged wounded from the tent; (7) finally, the pattern of shots showed that Johnson changed his position. The state further argues that this court should not adopt the doctrine of diminished capacity since it would impose an added burden on the prosecution in proving intent beyond a reasonable doubt, particularly because this defense, unlike a defense of insanity, can be brought up without prior notice to the state. The state also argues that the court, in fact, applied the doctrine of diminished capacity, and that there was sufficient evidence to support the trial court's conclusions that Johnson was guilty of second degree homicides. From the record, it is apparent that the trial court did apply a diminished capacity doctrine in determining that Norman Johnson was not guilty of first degree murders. The diminished capacity doctrine is based on the theory that while an accused may not have been suffering from a mental disease or defect at the time of his offense, sufficient to absolve him totally of criminal responsibility, the accused's mental capacity may have been diminished by intoxication, trauma, or mental disease to such an extent that he did not possess a specific mental state or intent essential to the particular offense. In the case at bar, the trial court found that "the evidence in general fails to show any premeditation," and also mentioned the stresses that were bearing upon Johnson at the time of the shooting. Although the court did not state explicitly how these stresses worked to negate premeditation, it did appear to take these matters into account. Nevertheless, Johnson argues that a reasonable man necessarily must have had a reasonable doubt as to whether he acted with malice aforethought, and therefore he could not have been found guilty of murder in the second degree. Criterion for review of sufficiency questions in criminal cases has been stated by this court in the following manner: In determining the issue raised by such a challenge, the evidence and the inferences to be drawn therefrom are to be viewed in a light most favorable to the state. The question, then, is whether the finding of guilt is supported by substantial evidence, that is, such relevant evidence which is adequate to support a conclusion by a reasonable mind that there was no reasonable doubt as to appellant's guilt. (Footnotes omitted.) Since malice was an essential element of second degree murder, that element should have been proven beyond a reasonable doubt, and the narrow question on appeal in this case is whether the trial court's finding that there was malice is supported by substantial evidence that is "adequate to support a conclusion . . . that there was no reasonable doubt" as to that element. In Gray v. State, 463 P.2d 897, 901 (Alaska 1970), we discussed the element of malice in homicide: Murder, at common law, was defined as the unlawful killing of a human being with malice aforethought, either express or implied. Express malice could be found in the deliberate intention of the defendant to take the life of the deceased unlawfully, while implied malice could be found either where the evidence showed circumstances indicating that . he knowingly did an act which might result in death or grievous bodily harm, or where defendant killed another in the course of perpetrating a felony. Based on our review of the record, we hold that the prosecution's evidence showed that Norman Johnson acted with malice. The prosecution's evidence disclosed that Johnson walked out of the tent, went over to where the hunters' guns were kept, picked up his gun, and began firing into the tent knowing his three companions were inside. From these acts it may reasonably be inferred that he knew death would result from firing into the tent. Although the prosecution did not show any particular reasons why Johnson may have intended to kill the three men, the fact that he aimed and fired in their direction is enough to infer malice. The defense countered the implication of malice by psychiatric testimony that Johnson was suffering from a major mental illness, and that at the time he shot his companions, he believed the act was necessary to save his own life. In this regard, the testimony of Drs. Rollins and Rapaport was in direct conflict with the testimony of Drs. Ure and Langdon. Rollins and Rapa-port both failed to find any evidence of a major mental illness and stated that Johnson had the capacity to appreciate the wrongfulness of his acts. Although they did not specifically testify that Johnson was not acting under a delusion that his life was in danger, that was the import of their testimony and a fair inference to be drawn therefrom. Since the trial court, as the trier of fact, was free to resolve this conflict in testimony by rejecting the theories of the defense psychiatrists, we find there was "substantial evidence" that Johnson acted with malice. We therefore hold that the trial court did not err in denying Johnson's motion for judgment of acquittal as to all counts of second degree murder. Appellant has also specified as error the trial court's ruling which permitted Dr. Rapaport, the prosecution's expert rebuttal witness, to testify after he had read the testimony of Drs. Ure and Langdon, expert defense witnesses. Johnson asserts this ruling was erroneous because the court had, under our rules of procedure, at the beginning of the trial excluded witnesses from being present in the courtroom while other witnesses gave testimony. In Dickens v. State, 398 P.2d 1008 (Alaska 1965), we held that the exclusion of witnesses is within the trial court's discretion. Dr. Rapaport stated that his opinion was not influenced in any way by the conclusions of Drs. Ure and Langdon, but that he utilized their testimony primarily to gain an understanding of the factual data on which they based their opinions and conclusions. Given the circumstance that Dr. Rapaport used only the factual data contained in the testimony of Drs. Ure and Langdon, we hold that the trial court did not abuse its discretion in permitting Dr. Rapaport to testify, despite its previous order excluding witnesses not at the time under examination. Another point raised is Johnson's contention that the trial court's imposition of three concurrent life sentences for three counts of murder in the second degree was excessive. Under the sentencing objectives set forth in State v. Chaney, 477 P.2d 441 (Alaska 1970), the trial court is to consider several factors: rehabilitation, protection of society, deterrence of the offender, deterrence of other members of the community, and reaffirmation of societal norms. Our review of the record convinces us that the trial court considered these criteria. Under the "clearly mistaken" standard of review of Chaney and Nicholas v. State, 477 P.2d 447, 449 (Alaska 1970), we cannot say that the concurrent sentences imposed in this case were excessive. Johnson's final point is that the trial court erred in placing the burden of proof as to insanity upon him. The state argues that the better rule requires that the accused rebut the presumption of sanity by a preponderance of the evidence. The state further contends that any other rule would place an impossible burden upon the state in practical terms. In its opinion, the trial court stated that as to the burden of proof when sanity is made an issue, I must agree with the State's position . . . it is my opinion that the presumption of sanity and responsibility must be strongly adhered to subject to the normal rebuttal ability to overcome this presumption by a preponderance of the evidence. Since the judgment and commitment was entered in this case, Alaska's legislature enacted the following statute treating the subject of mental disease or defect and criminal responsibility: Reliance on mental disease or defect as excluding responsibility is an affirmative defense. The burden of proof beyond a reasonable doubt does not require the prosecution to disprove an affirmative defense unless and until there is evidence supporting the defense. The requirement of evidence supporting the affirmative defense is not satisfied solely by evidence of an abnormality which is manifested only by repeated criminal or otherwise antisocial conduct. Our colleague Justice Connor, in his dissent in Pope v. State, 478 P.2d 801, 812—814 (Alaska 1970), forcefully presented the case for adoption of a burden of proof standard similar to the one selected by Alaska's legislature in 1972. We adopt the reasoning of the dissenting opinion in Pope and now hold that the burden of proof standard formulated by our legislature is the appropriate standard, and that the issue of criminal insanity should be decided under that criterion. Thus, in light of the foregoing, we hold that the case should be remanded to the trial court for the limited purpose of reviewing the evidence going to the insanity defense issue in light of the burden of proof standard articulated in AS 12.45.083. Upon remand, the trial court is to hold such proceedings it deems necessary and to make any additional findings of fact and conclusions of law considered appropriate in light of the purposes of this limited remand. Remanded for further proceedings in accordance with this opinion. FITZGERALD, J., not participating. . Dr. Bierne of the Alaska Medical Laboratory performed autopsies on all three bodies. He testified that Jackson had four wounds, one in the upper left am, one in the left buttocks, one in the left forearm, and a large wound in the upper right arm. Bierne testified that Jackson bled to death. Clarence Arnold suffered six wounds from at least four different bullets : one in the upper right arm, a large wound in the side below the ribs, a wound in the back between the shoulder blades, a scalp laceration, a wound in the right hip and one in the left wrist. Arnold apparently died of multiple gunshot wounds. Oscar Henry had three wounds : one in the back of the neck at the base of the skull (which resulted in instant death), one in the left leg and one in the right leg. Bierne also testified that probably several minutes elapsed between Clarence Arnold's right hip wound and the side wound. . Norman was picked up approximately 20-30 miles from the camp. . He told Boatright that shortly after Clarence Wood left the camp he crawled into his sleeping bag and the other three men prepared for bed. At this time another man approached the camp on a snowmobile. He came to the entrance of the tent and talked to the three men in Eskimo. He appeared to be acquainted with the three men. This man stayed to have a cup of coffee. Just prior to his leaving, some kind of argument developed. The man got up and left, started his snow machine, and then turned it off. The next thing Norman remembered was hearing gunshots and then Freddy Jackson fell across him. Norman indicated that he crawled out the back of the tent and hid among some nearby trees until the shooting stopped and he heard the snow machine take off. He went back into the camp, put on more warm clothing and then attempted to start one of the two snow machines the men had brought to the camp. Unable to do so, he began walking down the river toward Kiana and was picked up the following morning by a pilot flying down the river. Norman described the stranger to the trooper in some detail. On the evening of the day of this second interview, Norman and his father left Kiana for Anchorage. They were met at the Anchorage International Airport by State Trooper Ule Bivens. Bivens went out to the Johnson house the following morning and talked to Norman about the shooting incident. As a result of this interview, Trooper Bivens prepared a statement which Norman signed. This statement contains substantially the same information that Norman had given to Trooper Boatright the previous day. .The trial court found this statement was voluntarily made. This ruling has not been challenged in this appeal. . There was testimony that the temperature in the area of the hunting camp during the time in question was approximately 50 degrees below zero. . At the start of trial, defense counsel asked that witnesses not under examination be excluded from the courtroom, pursuant to Crim.it. 26(a). The basis of the objection to Dr. itapaport's examining the transcript of the testimony of the other psychiatrists was that it would violate the exclusionary rule. . Section 4.01 of the American Law Institute Model Penal Code (Final Draft) (1962) provides: (1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. (2) The terms 'mental disease or defect' do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct. . After Johnson's trial had taken place, the legislature enacted a statute, the effect of which appears to provide for the defense of diminished capacity. We do not at this time have the question before us as to whether this statute provides for the defense of diminished capacity. The statute reads in part as follows: Evidence of Mental Disease or Defeat Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove the defendant did or did not have a state of mind which is an element of the offense. However, evidence of mental disease or defect excluding responsibility is not admissible unless the defendant, at the time of entering- his plea of not guilty or within 10 days thereafter or at such later time as the court may for good cause permit, files a written notice of his intent to rely on that defense. AS 12.45.085. . People v. Conley, 64 Cal.2d 310, 49 Cal.Rptr. 815, 411 P.2d 911, 914 (1966). . The state has argued in its brief that while the doctrine of diminished capacity may be applied to reduce the crime of first degree murder to second degree, it cannot properly be used to reduce murder to manslaughter. Manslaughter is a statutory offense and one that involves an objective test requiring evidence of heat of passion that would provoke a "reasonable man" to kill. Thus, the state argues that the subjective processes of the defendant's mind have no relevance to the crime of manslaughter. This rationale is taken from Weihofen & Overholser, Mental Disorder Affecting Degree of Crime, 56 Yale L.J. 959, 969 (1947). Alaska's manslaughter statute contains no listing of factors which constitute the crime of manslaughter. AS 11.15.040 provides: Except as provided in § 10-30 of this chapter, a person who unlawfully kills another is guilty of manslaughter, and is punishable by imprisonment in the penitentiary for not less than one year nor more than 20 years. In Jennings v. State, 404 P.2d 652 (Alaska 1965), this court discussed the relationship between second degree murder and manslaughter. In holding that involuntary manslaughter was necessarily included in the offense of second degree murder, we said: The gravamen of involuntary manslaughter, as so defined, is a homicide which.is unlawful — one that is not excusable under the law. Second degree murder is also a homicide which is unlawful — one that is not excusable under the law. It is true that second degree murder requires malice and a specific intent to kill, whereas involuntary manslaughter does not. But tins difference relates only to the state of mind, of the accused and hears upon the degree of punishment. The gravamen of the two offenses, an unlawful killing, is the same. 404 P.2d at 655 (Emphasis supplied.) Similarly, the Supreme Court of California rejected the argument proposed by the state in this case in People v. Gorshen, 51 Cal.2d 716, 336 P.2d 492 (Cal.1959). In Gorshen, the court found that while the California statute enumerated the nonmalieious criminal homicides constituting manslaughter, it did not include a homicide in which the lack of malice results from diminished capacity. The court nevertheless held that a person who intentionally kills another may be incapable of harboring malice aforethought because of a mental disease or defect and his offense would be voluntary manslaughter. Under Alaska's manslaughter statute, one could be convicted of manslaughter for an unlawful killing if it were not committed purposely and of deliberate and premeditated malice (first degree murder) or purposely and maliciously (second degree murder). Although not necessary to the resolution of this issue, we note our reservations concerning the applicability of the doctrine of diminished capacity to reduce murder to manslaughter. Nevertheless, assuming arguendo that application of the diminished capacity doctrine was proper in the case at bar, the trial court should have considered the evidence relating to Norman Johnson's state of mind with respect to his capacity to harbor malice. In this context, the state correctly casts the issue before this court as one of sufficiency of evidence. . Beck v. State, 408 P.2d 996, 997 (Alaska 1965). . Civ.R. 43(g)(3) which is made applicable to criminal proceedings by virtue of Crim.R. 26(a) provides: At the request of any party, the court may exclude from the courtroom any witness of the adverse party not at the time under examination, so that he may not hear the testimony of other witnesses. . Regarding Johnson's assertion that Dr. Rapaport's testimony should be disregarded and stricken because he never examined the patient, we note that appellant's brief contains no argument as such on this question or citation of authority. In such circumstances, we choose not to decide the point. Lewis v. State, 469 P.2d 689, 691 n. 2 (Alaska 1970). . As we held in Hixon v. State, 508 P.2d 526 (Alaska 1973), the appellant must demonstrate that the sentence was not within the zone of reasonableness. . We agree with appellant's observation that the better practice is for the trial court itself to prepare the judgment and commitment in criminal cases. Concerning the judgment and commitment, appellant contends that there is a variance between the written commitment and the orally imposed sentence in that the commitment does not contain the trial court's recommendation that the parole board release Johnson when he is no longer a danger to society. In the event the judgment of conviction remains intact after one limited remand, hereinafter to be discussed, then we see no necessity for amendment of the judgment and commitment for we think it implicit under AS 33.15.180 that the parole board has the power to parole Johnson when it is persuaded he is no longer a danger to society. AS 33.15.080 provides : If it appears to the board from a review that a prisoner eligible for parole will, in reasonable probability, live and remain at liberty without violating the laws, or without violating the conditions imposed by the board, and if the board determines that his release on parole is not incompatible with the welfare of society, the board may authorize the release of the prisoner on parole. . AS 12.45.083 (b). This statute was not made retroactive.

10552681

Charles DULIER, Appellant, v. STATE of Alaska, Appellee

Dulier v. State

1973-07-09

No. 1760

1058

1061

511 P.2d 1058

511

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:46:04.770390+00:00

CAP

Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, JJ.

Charles DULIER, Appellant, v. STATE of Alaska, Appellee.

Charles DULIER, Appellant, v. STATE of Alaska, Appellee. No. 1760. Supreme Court of Alaska. July 9, 1973. Olof K. Hellen, Asst. Public Defender, Juneau, Herbert D. Soil, Public Defender, Anchorage, for appellant. William G. Mellow, Asst. Dist. Atty., Joseph D. Balfe, Dist. Atty., John E. Havel-ock, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, JJ.

1294

7814

OPINION CONNOR, Justice. After trial by jury, Charles Dulier was found guilty of manslaughter and was given the maximum sentence of twenty (20) years imprisonment. Dulier appeals from both the judgment of conviction and the sentence imposed. In the fall of 1971 Charles Dulier, his wife Syble, Glen Morían, and John Bullard were the occupants of a small one-bedroom apartment in Juneau, Alaska, having dwelt there for several weeks. It appears that Charles Dulier exerted emotional and physical dominance over the other members of the group. 'Charles was the initiator of the "wink-nod" system of inflicting bodily injury upon members of the group. Charles would wink at one person and nod toward another. This meant that the one at whom he winked should physically attack and strike the one at whom he nodded. Failure to comply with these signals or to strike forcefully enough would bring about punishment of the one winked at by Charles. About midnight on October 2, 1971, Charles and Syble returned to the apartment and woke the other two occupants in order to drink some wine and play cards. While playing cards, Charles engaged in the wink-nod game. The primary recipient of the violence was Bullard. The prosecution's evidence, on which the jury's verdict was apparently based, showed the following. At about 2:00 a. m. on the night in question Bullard got up from the living room table and went into the bedroom to go to bed. Charles Dulier followed Bullard into the bedroom where noise could be heard as though someone were being pushed and shoved around. Charles Dulier came back into the living room and directed his wife to go into the bedroom and clean up Bullard. After she returned, Charles made Glen Morían go into the bedroom and commanded that Morían fight Bullard. After this fight, Syble again cleaned up Bullard, while Morían and Charles talked in the living room. During this conversation, Charles complimented Morían on a job well done, but then struck a hard punch to Morlan's stomach, telling him that this was how he should strike Bullard. Morían was sent into the bedroom a second time to fight Bullard. After Morían returned on this occasion, Charles ordered Syble to go into the bedroom and "finish Bullard off." Sy-ble then went into the bedroom and began choking Bullard. Bullard struggled and Syble called for assistance, which brought Morían into the bedroom. At Syble's request Morían held Bullard's arms while Syble finished strangling Bullard to death. After the killing, Charles, Syble, and Morían discussed disposal of the body. They contemplated carrying it up a nearby mountain and throwing it over a cliff. They abandoned such plans, however, and decided to report Bullard's death to the police. At about 10:00 a. m. on October 3, they walked to the Juneau police station and gave an account of Bullard's death. In an oral statement given to Captain Cir-aulo at about 11:30 a. m., Charles rendered a completely exculpatory explanation of the death. At about 10:00 p. m., almost eleven hours later on the same day, and after Syble had explained the wink-nod game to the police, Charles was charged with second-degree murder. At that time he made two separate statements to the police, one of which was recorded, in which he admitted to playing the wink-nod game. He still denied any responsible participation in the killing. At trial, the prosecution brought forth evidence that Charles had physically mistreated all of the other occupants of the apartment during several days previous to the murder. The evidence showed that Charles had severely pistol-whipped Bullard and had thrown a knife at him. At the time of death Bullard still had bruises and lacerations from those attacks. Charles had attacked Syble and knocked out some of her teeth. He had smashed a wine bottle in Glen Morlan's face. There was also testimony of a sexual attack by Charles on Glen Morían several weeks previous to the murder. Dulier advances three contentions on appeal: (1) that it was error to admit into evidence his second and third statements to the police, (2) that it was error to allow the prosecution to introduce evidence of prior uncharged offenses, and (3) that his sentence is excessive. As to the first issue, the warning required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), was given to Dulier before he made the second and third statements, although he was not given a Miranda warning on the occasion of his first statement. On the facts of this case as related by the police officers and Dulier himself we have concluded that Duller validly waived his Miranda rights before making the second and third statements. Even if we were to assume that he was entitled to a Miranda warning on the occasion of his first statement, no taint would have attached to the second and third 'statements. His initial statement to Captain Oiraulo was not inculpatory. Additionally, the lapse of time between the first and succeeding statements was such that we are satisfied that the first statement was not causative of the second. Admitting Dulier's second and third statements into evidence was not error. As to the second issue, we hold that the probative value of the evidence of the previous uncharged offenses outweighed any possible prejudicial impact. This evidence, was, therefore, properly admitted. The evidence tended to show Du-lier's control and domination of the other occupants of the apartment. It proved his complicity in the unlawful killing. Because the evidence completed the picture and set the stage for the offense being tried, it was admissible. Kugzruk v. State, 436 P.2d 962, 967 (Alaska 1968); McKee v. State, 488 P.2d 1039 (Alaska 1971). As to the testimony about a sexual assault on Morían, somewhat less relevance is demonstrated. But we note that the sexual assault, which was touched upon briefly in the testimony of Morlan, was not emphasized by the prosecution, and the judge cautioned the jury not to consider that evidence except for the limited purpose of determining the state of mind of the witness Morían. We find no abuse of discretion, and no error. As to the sentence appeal, we do not agree with Dulier that the sentence was excessive. The trial court considered the brutal nature of the crime, the defendant's character and attitude, and the need for the protection of society. The court had the benefit of psychiatric evidence which indicated that Dulier is a psychopath and is probably not amenable to treatment. In our opinion Dulier falls within the category of the worst type of offender for the crime of which he was convicted. We uphold the sentence. Galaktionoff v. State, 486 P.2d 919 (Alaska 1971). Meyers v. State, 486 P.2d 713 (Alaska 1972). Affirmed. . His first statement was not put into evidence before the jury. . Because of our holding, it is unnecessary to pass upon Dulier's contention that his first interview by the police amounted to custodial interrogation so as to require a Miranda warning at that time. .This is not a "cat-out-of-the-bag" situation where the defendant, having once confessed through application of unlaw ful police procedures, may be operating under coercive pressure of the original confession in liis subsequent confession. United States v. Bayer, 331 U.S. 532, 540-541, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947). Martel v. State, 511 S.W.2d 1055, 1973 (Alaska 1973).

10552656

Raymond Gilmore MARTEL, Appellant, v. STATE of Alaska, Appellee

Martel v. State

1973-07-09

No. 1712

1055

1058

511 P.2d 1055

511

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:46:04.770390+00:00

CAP

Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, JJ.

Raymond Gilmore MARTEL, Appellant, v. STATE of Alaska, Appellee.

Raymond Gilmore MARTEL, Appellant, v. STATE of Alaska, Appellee. No. 1712. Supreme Court of Alaska. July 9, 1973. Stephen C. Cowper, Fairbanks, for appellant. John E. Havelock, Atty. Gen., Juneau, Monroe N. Clayton, Dist. Atty., and Robert B. Downes, Asst. Dist. Atty., Fairbanks, for appellee. Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, JJ.

2087

12556

PER CURIAM. Appellant Martel was hospitalized as a result of a shooting incident at Ester, Alaska where he and the complaining witness exchanged gunfire. A search of appellant's home and unattached garage pursuant to a search warrant for the revolver he used revealed an air compressor which subsequently led to Martel's conviction for concealing stolen property and which is the subject of the present appeal. Martel challenges the sufficiency of the affidavit to obtain the search warrant. In addition, he challenges the admissibility of a statement taken at the hospital six days after the shooting on the grounds it was the result of two previous statements which the trial court ruled inadmissible because of appellant's physical condition at the time they were given. We have examined the affidavit for a search warrant and find it legally sufficient. We have also reviewed the circumstances leading up to the taking of the statement by the state police trooper six days after Martel's hospitalization. We conclude that the statement was both voluntary and untainted by the exclusions of previous statements made on the day of the shooting incident and some three days later. Appellant additionally urges the court to adopt the standard that the trial court must find the statement was voluntary beyond a reasonable doubt before it was admissible. Since appellant did not raise such an issue in the trial court, we decline to consider it for the first time on appeal. The judgment and conviction of the trial court is affirmed. . Davenport v. State, 510 P.2d 78 (Alaska 1973); Davis v. State, 499 P.2d 1025 (Alaska 1972). We disagree with the dissenting opinion's conclusion that there was no probable cause to support that part of the search warrant authorizing the search of the unattached garage. The affidavit was based in part upon the statement of Robert E. Reiehmann that lie observed Martel point a gun at Daniel Knutsen in front of Martel's residence. The affidavit was also based upon the statement of Daniel Knutsen that "Martel did point a revolver at Knutsen while inside Reichmann's car and fire it. ." The affidavit noted that a subsequent investigation by the police revealed a bullet hole in Reichmann's vehicle. The dissent grants that there was probable cause to search Martel's residence but would hold there was no probable cause to search his garage. We disagree and feel if Martel attempted to conceal the revolver it is as logical to believe he would hide it in the garage as in his residence. The state concedes that the affidavit was not legally sufficient to support a search for a shotgun not related to the shooting incident where Martel was injured. A shotgun was apparently used in a related incident which took place the day before and which caused damage to a car parked at the same site as the scene of the shooting. The reference to the other incident is contained in the affidavit in sketchy terms but there are no facts related which indicate whether Martel fired the shotgun at the damaged car. The search warrant permitted the officers to search for a shotgun as well as the handguns used in the shootout which led to Martel's hospitalization. .There is no evidence of overbearing by the state police trooper. The first interview took place on the night Martel was admitted to the hospital when the trooper was attempting to ascertain the events which culminated in the shooting and before the trooper had obtained a search warrant for the garage where the air compressor was found. Martel was not given a Miranda warning but he was not a suspect at that time for concealing stolen property and the questioning lasted less than 10 minutes. The second interview was of similar duration and took place at the hospital three days later. Martel was given a Miranda warning but the trooper left after Martel indicated he did not wish to discuss the matter because he did not feel well. The trial court excluded the conversations on each occasion because of Martel's physical condition and the medication he had been given. The trial court ruled that the statement at the third interview was voluntary and that Martel's physical condition was sufficiently improved so that it did not constitute the same problem it had at each of the first two interviews. . While appellant contends the three statements are obviously interrelated, we have difficulty with this allegation. The first two statements related that Martel knew the compressor was in the garage near his house and that he had purchased it from a soldier. The state police trooper knew the compressor was stolen because of police reports, and had found the compressor in Martel's garage. The third statement was the first indication that Martel knew the compressor was stolen. E. g. Boulden v. Holman, 394 U.S. 478, 480-481, 89 S.Ct. 1138, 22 L.Ed.2d 433, 437 (1969) ; United States v. Knight, 395 F.2d 971 (2d Cir. 1968), cert. denied 395 U.S. 930, 89 S.Ct. 1776, 23 L.Ed. 2d 249 (1969) ; Nobles v. United States, 391 F.2d 602, 603 (5th Cir. 1968) ; Myers v. Frye, 401 F.2d 18, 22 (7th Cir. 1968), appeal after remand, 436 F.2d 579 (7th Cir. 1971) ; Cotton v. United States, 371 F.2d 385, 392 (9th Cir. 1967); United States ex rel. Gockley v. Myers, 314 F.Supp. 839, 843-45 (D.C.Pa. 1970) reversed on other grounds, 450 F. 2d 232 (3rd Cir. 1971), cert. denied 404 U.S. 1063, 92 S.Ct. 738, 30 L.Ed.2d 752 (1972) ; Soolook v. State, 447 P.2d 55, 62 (Alaska 1968). For a discussion of the fruit of the poisonous tree doctrine, see Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407 9 L.Ed.2d 441 (1963). . Cf. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618, 627 (1972).

10545568

Application of Clem Harrison STEPHENSON for admission to the Alaska Bar Association

In re Stephenson

1973-06-25

No. 1740

136

144

511 P.2d 136

511

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:46:04.770390+00:00

CAP

Before RABINOWITZ, C. J., and CON-NOR and BOOCHEVER, JJ.

Application of Clem Harrison STEPHENSON for admission to the Alaska Bar Association.

Application of Clem Harrison STEPHENSON for admission to the Alaska Bar Association. No. 1740. Supreme Court of Alaska. June 25, 1973. Edgar Paul Boyko of Edgar Paul Boyko & Associates, Anchorage, Robert F. Martin, Fairbanks, for appellant. Mary F. LaFollette, Anchorage, for Alaska Bar Assn. Before RABINOWITZ, C. J., and CON-NOR and BOOCHEVER, JJ.

4247

25952

OPINION BOOCHEVER, Justice. This appeal has been taken from a decision of the Board of Governors (the Board) denying Clem Harrison Stephenson's application for admission to the Alaska Bar Association under reciprocity provisions. Initially Stephenson's application was denied for failure to meet the character requirements, as well as his alleged failure to have graduated from a law school. After a subsequent hearing, a hearing officer made findings that applicant was of good moral character and concluded that he was entitled to admission. The Board of Governors approved the hearing officer's findings of fact but concluded that Stephenson was not entitled to be certified for admission to practice law in Alaska for the reason that he does not satisfy all of the requirements of Alaska Bar Rule II, section 2(f) for admission without examination, in that he is not a graduate of a law school accredited by the American Bar Association, or a graduate of any accredited law school. Stephenson attended Oklahoma State University for two semesters and studied law under a "tutorship program" in his father's law office in Okemah, Oklahoma, from June 1931 to June 1934. As a "registered law student" he undertook the program as approved by the Oklahoma Bar Association. In applying to the Oklahoma bar he was required to list the subjects he had studied and the periods of time he had devoted to each. In 1934 he passed the Oklahoma bar examination and was admitted to practice in that state. He continued to practice law in Oklahoma until February 1969. Since March 1969 he has been a resident of Alaska. Under the statutory requirements for admission to practice law in Alaska, Stephenson would be qualified for admission by reciprocity as AS 08.08.140(3) eliminates the requirement of graduation from a law school if the applicant "has been engaged in the active practice of the law for at least 10 years". Alaska Bar Rule II, section 2(f) differed from the statute in re quiring that the applicant "is a graduate of a law school accredited by the American Bar Association, or is a graduate of any accredited law school if he has been engaged in the active practice of law for at least ten years. . . Thus, even as to a 10-year practitioner, the bar rules require graduation from an "accredited law school". Stephenson contends that his clerkship in his father's law office undertaken with the approval of the Oklahoma Bar Association, was tantamount to graduation from a law school accredited by the State of Oklahoma. While the term "accredited law school" which is undefined by the rules is vague, it is clear that a clerkship course of study could not be construed as coming within its definition. In fact, a principal reason for requiring graduation from an accredited law school would seem to be to distinguish such a requirement from that of a clerkship. In an accredited law school a student has the benefit of direct instruction under established curricula from professional teachers, as well as day-to-day association with other students. The exchange of ideas thus engendered adds greatly to the breadth of knowledge and understanding of the law, applicable ethics and techniques. It would appear that the intent of the rule is to insure that any applicant has an adequate education without placing the impossible burden on the Board of examining the details of each applicant's day-today studies. By adopting the "accreditation requirement", the court has shifted the responsibility for daily supervision to the accrediting agencies and schools. If it relaxes the rule to include office study, the responsibility shifts back to the Board and the courts with resulting disparate standards and detriment to the quality of legal practitioners. The necessity of such "shorthand" tests requiring graduation from an accredited law school to insure the quality of the practicing bar, is ably discussed in Hackin v. Lockwood, 361 F.2d 499, 503 (9th Cir. 1966): In determining whether Arizona's educational requirement is arbitrary, the fact that Abraham Lincoln and Dean Roscoe Pound had no, or little, formal legal schooling is interesting, but not conclusive. Prior to the time restrictions on admission to the bar became almost universal, for every successful lawyer who had had no formal legal training, there have been scores of incompetent lawyers practicing law, to the detriment of the public. No lawyer who has donated his time and effort to bar disciplinary proceedings can conclude otherwise. Thus, while there is no evidence that Stephenson's education was in fact substandard, the public interest in seeing that all members of the bar have an adequate education is a valid basis for an "accredited schools" test, which insures that each applicant uniformly has performed the minimum required study. To adopt the position that law office study under an approved program would meet this test would do violence to the basic intent of the rule since there is no way to control that study in each individual office. Moreover, it has been well established that educational standards such as those contained in the Alaska bar rule have a rational connection with an applicant's fitness to practice law. A lawyer is required to advise clients, present arguments and make representations to the court on a wide variety of subjects and it is essential that he have an adequate education in order properly to perform his functions. We cannot say that the requirement of graduation from an "accredited law school" has no rational relationship to the fitness to practice law. By this means the state may be assured that attorneys have had suitable training by qualified instructors so that as lawyers they will be capable of. adequately representing members of the pub- lie. The exchange of ideas between classmates and teachers, the legal knowledge, and the sense of ethics acquired through meeting requirements for graduation from an accredited law school are all reasonably related to the state's interest in seeing that those who hold themselves out to the public as attorneys at law, and thus as officers of the court, are properly qualified. On the other hand, it is practically impossible to adequately supervise a course of law pursued under a clerkship program. The applicant does not have the benefit of studying and exchanging ideas with a group of his peers, of learning from instructors specifically prepared to teach individual subjects and of establishing his qualifications before an impartial institution. While individuals trained only as clerks may, and have performed ably as attorneys, there is much greater assurance that minimum standards will have been acquired by requiring graduation from an accredited law school. It is for this reason that educational requirements for admission to the bar have long been approved in other jurisdictions. Stephenson contends, however, that the Board had no authority to promulgate a rule conflicting with the requirements of the statute. As indicated, supra, AS 08.-08.140(3) does not require graduation from a law school when the applicant has engaged in the active practice of law for at least 10 years, while the bar rule requires graduation from an "accredited law school". This court approved the bar rules by Supreme Court Order No. 75, dated January 29, 1965. If such approval may be regarded as an adoption of the bar rule by this court, then under the court's inherent powers over admission to practice law, the rule would be enforceable regardless of the more lenient requirement of the statute. As we stated in Application of Houston: We have taken jurisdiction pursuant to that provision of the Alaska Constitution vesting the judicial power of the state in this court and under the rule followed by the great majority of the states which holds that the supreme court of a state has the inherent and final power and authority to determine the standards for admission to the practice of law in that state. In adopting the majority rule, we recognize that the legislature may enact laws governing admission to practice law but hold that it may not require this court to admit on standards other than those accepted or established by the court. (Citations omitted.) Despite this statement, however, there has been considerable confusion as to controlling authority in cases of conflict between statutory requirements and those of the Alaska bar rules approved by this court. We, therefore, take this opportunity to reiterate our holding' in Application of Houston as to our inherent and final power and authority to determine the standards for admission to the practice of law in Alaska. We, accordingly, are confronted with the question of whether the language used in Supreme Court Order No. 75 was tantamount to the adoption of the rule by the court. Resolution of this question in part requires a review of a singularly unhappy chapter in the relationship between the bar and the court. The Territorial Legislature had initially passed an Integrated Bar Act in 1955. There was no state court system at that time and rules were adopted by the Alaska Bar Association which, with certain amendments, continued to be in force and effect until 1964. By Supreme Court Order No. 64, promulgated on April 7, 1964, the court ordered "[t]hat the Rules of the Alaska Bar Association numbered one through 13, attached hereto, are hereby promulgated as rules of this court, effective June 1, 1964." The Board of Governors refused to acknowledge the binding effect of the court promulgated rules. As a result the court ordered the members of the Board to be relieved of their duties, the records and funds of the bar association to be seized, and appointed an interim trustee. A suit was filed in the United States District Court by the Board of Governors and numerous attorney members against the Supreme Court of the State of Alaska seeking, inter alia, an injunction. With the assistance of a committee appointed by the American Bar Association, the bitter conflict between court and bar was eventually settled. A stipulation was entered into providing in part that the Alaska Bar Association and its Board of Governors would adopt rules relating to discipline and admission which were attached to the stipulation, and that the supreme court, upon such adoption, would approve the rules. The rules were agreed upon in advance by the court, and the representatives of the bar association asked approval by a majority vote of the members of the bar. The inherent powers of the court over admissions and disciplinary matters appeared to be recognized, whereas the court did not assert such power as to other functions of the bar which were to be controlled by bylaws, without intervention by the court. Accordingly, while the supreme court did not undertake to promulgate the rules as was done by the controversial Order No. 64, the court nevertheless approved the rules which was tantamount to adopting them. In the case of Application of Schatz, 80 Wash.2d 604, 497 P.2d 153 (1967), an applicant for admission to the bar was refused the right to take the Washington State bar examination because he had not graduated from an approved law school as required by the Washington State Bar Association's rules for admission. The applicant contended that the delegation to the Board of Governors to adopt rules "subject to the approval of the supreme court fixing the qualifications, requirements and procedure for admission to the practice of law . . . " (emphasis supplied) was an unlawful delegation of legislative authority. The court held: The language of the statute clearly lodges all ultimate authority in the Supreme Court. The Board of Governors, acting in this area, is an arm of the court, independent of legislative direction. . It is well settled by repeated decisions that the power to admit and enroll attorneys in the state of Washington, together with the power to disbar, is exclusively in the Supreme Court. This rule is in conformity with the established rule throughout the country that admission to practice is the exercise of a judicial function and one of the inherent powers of the court. (Citations omitted.) Thus, the court held that subjecting the bar association's right to adopt rules to "approval of the Supreme Court" rendered the rules thereby approved an exercise of the power of the court, rather than an allegedly improper delegation of legislative authority. Similarly, the approval of the Alaska Bar Association's rules of admissions by the supreme court constituted an exercise of this court's inherent power over admission matters, hence the requirements of the rule are enforceable even though more stringent than the requirements of the statute. Subsequent to the promulgation of Supreme Court Order No. 75, the rules have been construed as constituting such an exercise of this court's powers over admission matters. In Application of Steelman, 448 P.2d 817, 819 (Alaska 1969), this court stated: Alaska Bar Rule 2 § 2(f) [1] [sic], promulgated by this court on February 8, 1965, was in force at the time petitioner made application for admission on reciprocity and is still in force. In Application of Brewer we held that although the final power and authority to determine standards for admission to the bar of Alaska rested in this court, we would nevertheless accept a legislative standard for admission provided it was acceptable to the court and had a rational connection with an applicant's fitness to practice law. By this holding we did not intend to imply that legislative standards similar to and superimposed upon standards already established by the court would be accepted merely because they might have some relevancy to an applicant's fitness to practice law. The authority and responsibility for establishing clear and unambiguous standards for admission rests in this court and where the court has already established a standard it will not accept a legislative attempt to modify that standard which creates confusion and inconsistency without adding substantively to the standard. (Citation omitted.) While the argument here presented, concerning the history of Supreme Court Order No. 75 and its contrast with Supreme Court Order No. 64, was not advanced in Application of Steelman or Application of Brewer, we affirmed in those cases that the approval of the Alaska bar rules by Supreme Court Order No. 75 constituted promulgation of those rules by this court. Applicant further contends that to require him to take a bar examination violates the equal protection clause of the fourteenth amendment to the United States Constitution. He alleges that the 1931 requirements for admission to practice in Alaska permitted a person with two years clerkship in a law office who passed the state bar examination to be admitted, and that the Oklahoma requirements which he met were more stringent. He alleges that Alaskan attorneys who were admitted to practice prior to the requirements for graduation from an accredited law school have not been required to take a second examination. It is thus his position that he has not been accorded equal treatment with Alaskan attorneys presently practicing who were admitted to the bar prior to the requirement of graduation from an accredited law school. This argument has little merit since the Alaskan attorney was required to pass an Alaskan bar examination. Moreover, as we stated in Application of Brewer: When the legislature adopts new standards for admission to the bar, it is not obliged by the requirements of equal protection of the laws to make its legislation retrospective so as to encompass situations which existed prior to the time the legislation becomes effective. To make the legislation prospective in operation only, as was done here, satisfied constitutional requirements of equal protection so long as the law in operating prospectively does not invidiously discriminate between different classes of persons. There was no such discrimination here. Applicant additionally alleges that the Board of Governors is estopped from barring him from admission to the practice of law, contending that he was misled into believing that he was eligible for reciprocity as a result of the Martindale-Hubbell Law Directory referring to the requirements of AS 08.08.140 for admission to the practice of law in Alaska without mention of Bar Rule II, section 2(f). He further contends that he was furnished similar information by the Executive Director of the Alaska Bar Association and that he relied upon such information changing his position for the worse by closing his practice in Oklahoma and moving to Alaska. This issue was not raised at the hearing before the Board, but affidavits have been submitted to this court indicating that the applicant was initially furnished with a copy of the bar rules as well as the provisions of the statute. The Executive Director has further denied under oath that he furnished erroneous information to the applicant as to the requirements for admission. We thus find no merit to this contention. Furthermore, it is well established that a state is not estopped to assert a result dictated by its rules, even if a state officer has made a contrary representation from the terms of the rules to an employee and caused reliance on such representation. As one of his principal points applicant alleges that a general bar examination is unfair to an experienced attorney. He contends that such examinations are designed to test the knowledge of recent graduates who have just completed years of study covering a wide variety of subjects. The experienced practitioner on the other hand normally tends to specialize to a certain degree, so that over the years he no longer retains in mind details pertaining to other subjects. It thus becomes more difficult for him to pass a general bar examination as he practices longer. Appli-. cant contends that he should be entitled to take a special "lawyer's examination". While it may be preferable to have an attorney's examination separate from the examination of those not previously admitted to a bar, there is no authority that the requirement of passing a uniform examination violates any constitutional right. We have previously held in Application of Peterson that one who has passed an examination in another jurisdiction may still be required to pass the Alaska examination in order to indicate his qualification to practice law in this state. Subsequent to the filing of this appeal the Alaska Bar Association recommended new admission rules for adoption by the court. The new rules which have recently been adopted provide for a separate "attorney bar examination". Thus, applicant may now take an examination to be designed specifically for practicing lawyers, rather than being subjected to any possible unfairness involved in requiring him to pass the general examination. Additionally it is contended that this court has the final authority on admission matters and that despite applicant's failure to comply with the requirements of the rule, we should order applicant's admission. While we are not unsympathetic to applicant's position, and might wish to waive the requirements of the rules in his case, to do so would render it impossible to treat all applicants with requisite uniformity: Adoption of appellant's position would in our view abolish any semblance of objective criteria and would substitute in its place rather vague and shifting standards which dramatically increase the probabilities of ad hoc admissions. If appellant's suggested standards were accorded primacy, we thereafter could not say with any degree of assurance that a particular applicant possessed the requisite qualifications to advise and represent clients in legal matters. (Footnote omitted.) The order of the Board of Governors of the Alaska Bar Association denying applicant's application for admission to the practice of law in the State of Alaska is hereby affirmed. ERWIN and FITZGERALD, JJ" not participating. . Stephenson filed a petition for original relief by the supreme court under Supreme Court Rule 33, then applicable (now Appellate Rule 25). The court elected to treat this matter as an appeal from the decision of the Board. At various times applicants who had been denied admission to the bar by the Board have filed petitions for original relief to this court, petitions for review and appeals. Under our inherent and final authority to determine the standards for admission to the practice of law in this state, we have elected to take jurisdiction of this matter as an appeal. See Application of Brewer, 506 P.2d 676 (Alaska 1973). . AS 08.08.140(3) provides in pertinent part: An attorney in good standing in the bar of another state or territory or the District of Columbia which admits members of the Alaska Bar to the practice of law shall be admitted without examination and otherwise upon substantially the same terms and conditions as are fixed in the jurisdiction from which he has come for the admission of attorneys from this state. As a prerequisite to admission to the Alaska Bar the board shall require an attorney to take and pass an examination, unless the applicant (3) is a graduate of a law school accredited by the American Bar Association, or is a graduate of any law school if he received his degree before 1950 and began his legal studies before 1940, or has been engaged in the active practice of the law for at least 10 years, . .Alaska Bar Rule II, section 2(f) specified: To be certified as an attorney applicant for admission to practice law in Alaska, a person shall: (f) If the attorney applicant has [1] passed a state bar examination, [2] engaged in the active practice of law for at least five out of the previous six years before filing the application, excluding time spent in the military service of the United States, [3] is a graduate of a law school accredited by the American Bar Association, or is a graduate of any accredited law school if he has been engaged in the active practice of law for at least ten years, and [4] meets the character requirements established by the Board, such applicant need not take an examination, provided he also satisfies the requirements of the foregoing subsections of this section. . Cf. Application of Park, 484 P.2d 690 (Alaska 1971); Application of Brewer, 430 P.2d 150 (Alaska 1967). . Hackin v. Lockwood, 361 F.2d 499, 504 (9th Cir. 1966) ; Application of Schatz, 80 Wash.2d 604, 497 P.2d 153 (1972); Petition of Batten, 83 Nev. 265, 428 P.2d 195 (1967); Henington v. State Bd. of Bar Examiners, 60 N.M. 393, 291 P.2d 1108, 1111 (1956); Petition of Florida State Bar Ass'n, 134 Fla. 851, 186 So. 280 (1938) ; Rosenthal v. State Bar Examining Comm., 116 Conn. 409, 165 A. 211 (1933). . An attorney once admitted to the bar may confine his practice to very narrow aspects of the legal profession. We cannot thus equate the practice of law for any period of time with the broad background inherent in the accredited law school requirement. . Stephenson maintains that if the bar rule is not to be considered as adopted by tlie court, it would be invalid because of its inconsistency with the statute. AS 08.08.110 specifies: The board may (1) adopt rules fixing the qualifications, requirements and procedure for admission to the practice of law not inconsistent with this chapter; (Emphasis added.) . 378 P.2d 644, 645 (Alaska 1963). . In the matters of the applications of Hanson, Babcock and Johnson, 4 Alaska L.J. 87, 88 (June 1966), the court, with Justice Rabinowitz dissenting, ordered the admission of applicants who complied with statutory requirements but did not meet the more stringent standards accepted by this court when it approved Alaska Bar Rule II. . SLA 1955, ch. 196. . Alaska L.J., Vol. 2, No. 6 (June-July 1964); Vol. 2, No. 7 (Aug. 1964); Vol. 2, No. 9 (Oct. 1964). .497 P.2d at 155 (Wash.1967). . Id. . 448 P.2d 817, 819 (Alaska 1969). Basically there are three situations that may arise: (1) A statute could conflict with the rules by imposing more stringent requirements for admission; (2) The statute could conflict with the rules by specifying a more lenient requirement; and (3) The statute could treat a subject not covered in the rules; i. e., if the rules did not define "practice of law", the statute could give such a definition. It is in this third category that the legislative standard may be acceptable to the court if it has a rational connection to the applicant's fitness to practice law. . 430 P.2d 150, 152 (Alaska 1967). . See also Application of Peterson, 459 P.2d 703, 706-709 (Alaska 1969). It is significant that two of the three justices who promulgated Supreme Court Order No. 75 concurred in the Steelman and Peterson holdings. In the cases before this court the Board of Governors of the Alaska Bar Association (successors to a party that participated in the settlement of the law suit between the Alaska Bar Association, et al. and The Honorable Buell A. Nesbett, et al.) has consistently maintained a similar position with reference to the court's inherent powers and the promulgation of Order No. 75. . 430 P.2d 150, 153 (Alaska 1967). . Whaley v. State, 438 P.2d 718, 720 (Alaska 1968). . The vast majority of states do not provide for a separate attorney's examination (see 5 Martindale-Hubbell Law Directory (104th ed. 1972)). .459 P.2d 703 (Alaska 1969). . Alaska Bar Rules, Part I, Rule 2, section 2, promulgated June 8, 1973. . Application of Peterson, 459 P.2d 703, 706 (Alaska 1969).

10471803

Fred Jay LAYLAND, Appellant, v. STATE of Alaska, Appellee

Layland v. State

1976-05-17

No. 2739

1182

1184

549 P.2d 1182

549

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:47:26.628215+00:00

CAP

Before BOOCHEVER, Chief Justice, and RABINOWITZ, CONNOR, ERWIN and BURKE, Justices.

Fred Jay LAYLAND, Appellant, v. STATE of Alaska, Appellee.

Fred Jay LAYLAND, Appellant, v. STATE of Alaska, Appellee. No. 2739. Supreme Court of Alaska. May 17, 1976. Kent L. Yarbrough, of Albert Maffei, Maffei, Inc., Anchorage, for appellant. Avrum M. Gross, Atty. Gen., Juneau, Joseph D. Balfe, Dist. Atty., and Ivan Lawner, Asst. Dist. Atty., Anchorage, for appellee. Before BOOCHEVER, Chief Justice, and RABINOWITZ, CONNOR, ERWIN and BURKE, Justices.

1123

7128

OPINION ERWIN, Justice. In this appeal we are asked to determine whether the superior court was "clearly mistaken" in imposing a sentence of eight years with one-third to be served without the possibility of parole. The trial court entered this sentence after appellant Fred Layland was found guilty by a jury of manslaughter. On November 17, 1973, Layland, while under the influence of an intoxicating beverage, drove his automobile across the center line on the Glen Highway near Anchorage, Alaska. Layland's automobile collided with another vehicle carrying three young men— one of the occupants was killed as a result of the accident and the other two were seriously injured. Layland was subsequently indicted and convicted of manslaughter because of this incident. It is Layland's contention that although the trial judge considered the sentencing criteria we enunciated in Chaney and its progeny, the eight-year sentence imposed was excessive. The primary responsibility for sentencing rests in the trial court. However, the scope of review requires that we make our own examination of the record, focusing on the nature of the crime, the defendant's character, and the need for protecting the public. We have previously recognized that "[s]uch an independent examination of the justice of a particular sentence is necessary in order for the review process to function effectively." The presentence report in this case reveals that Layland, a twenty-seven year old Athabascan, has maintained a stable employment record over the years as a member of the Teamsters Union. Layland's wife of two years describes him as a responsible husband and a good father of their three children, two of which are stepchildren. Nevertheless, a number of people close to Layland recognize that he has a problem with alcohol. The record reflects that Layland's drinking habits have previously resulted in encounters with the law. In 1970 he was convicted for driving while intoxicated. In addition, we note that subsequent to the accident, but prior to the imposition of the sentence, he was again arrested for violating AS 28.35.030, the law prohibiting operation of a motor vehicle while intoxicated. An alcohol counselor who interviewed Layland after the accident observed: From a physiological and psychological reference, total abstinence from all forms of alcohol is imperative if Mr. Layland is to have full control of his faculties. Because of ' the permanent irreversible effects of alcohol abuse, it will be impossible for defendant to consider any type of social drinking. Noting that Layland admitted he had had a drinking problem for a number of years but had failed to seek help, the counselor recommended long term intensive treatment for his alcohol addiction problem. In light of the foregoing we think it is apparent that Layland is a threat to the community unless he can discontinue the use of alcohol. We therefore concur with the trial judge's recommendation on the judgment and commitment that Layland be placed in an alcohol rehabilitation program while he is incarcerated. Recent statistics indicate that thousands of innocent people are killed or seriously injured nationwide each year by automobile drivers who take to the road in spite of the fact that they are highly intoxicated. Unlike many crimes, the victim has no way of protecting himself. While vehicular homicide does not require a criminal intent, the fact that a loss of life is involved compels us to consider it among the most serious offenses. The unique nature of the offense mandates that the trial court, in fashioning a sentence, place heavy emphasis on societal condemnation of the conduct and the need to protect society. Upon reviewing this case we find that the eight-year sentence, coupled with the recommendation that Layland receive treatment for his alcohol problems, serves the reformative purposes of penal administration, reaffirms societal norms, and deters both the appellant and others from engaging in similar conduct. Thus, we are unable to say that the trial court was clearly mistaken in imposing the sentence it did. . Our standard of review on an appeal from sentencing is to determine whether the trial court's imposition of sentence was clearly mistaken. Bradley v. State, 535 P.2d 1031, 1032 (Alaska 1975) ; State v. Chaney, 477 P.2d 441, 444 (Alaska 1970). . We first articulated the considerations a sentencing judge must take into account in State v. Chaney, 477 P.2d 441, 444 (Alaska 1970), where we said (footnotes omitted) : Under Alaska's Constitution, the principles of reformation and necessity of protecting the public constitute the touchstones of penal administration. Multiple goals are encompassed within these broad constitutional standards. Within the ambit of this constitutional phraseology are found the objectives of rehabilitation of the offender into a noncriminal member of society, isolation of the offender from society to prevent criminal conduct during the period of confinement, deterrence of the offender himself after his release from confinement or other penological treatment, as well as deterrence of other members of the com-muuity who might possess tendencies toward criminal conduct similar to that of the offender, and community condemnation of the individual offender, or in other words, reaffirmation of societal norms for the purpose of maintaining respect for the norms themselves. . One of the objectives of sentence review is to correct the sentence which is excessive in length, having regard to the nature of the offense, the character of the offender, and the protection of the public interest. See State v. Chaney, 477 P.2d 441, 444 (Alaska 1970) ; Perrin v. State, 543 P.2d 413, 414 (Alaska 1975). . Perrin v. State, 543 P.2d 413, 415 (Alaska 1975). . While this court has often cautioned that the trial court should not place undue weight on a defendant's previous police contacts during the sentencing process, we have approved of judicial consideration of "verified information concerning additional crimes" which did not result in actual convictions, " . where the defendant is informed of the in-information and given an opportunity to explain or admit it." See Hixson v. State, 508 P.2d 526, 527 n. 1 (Alaska 1973) ; Adams v. State, 521 P.2d 516, 517 (Alaska 1974). In the case at bar the officer who arrested Mr. Layland for driving while intoxicated testified at the sentencing hearing and was subjected to cross-examination by Layland's attorney. Hence, although Lay-land had entered a plea of not guilty of the charge at the time of sentencing, it was properly considered by the trial court in imposing the sentence. . See Gullard v. State, 497 P.2d 93 (Alaska 1973).

10468067

JUNEAU EDUCATION ASSOCIATION, Appellant, v. CITY AND BOROUGH OF JUNEAU and Board of Education of the City and Borough of Juneau, Appellees

Juneau Education Ass'n v. City & Borough of Juneau

1975-08-29

No. 2288

704

710

539 P.2d 704

539

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:47:44.124389+00:00

CAP

Before RABINOWITZ, C. J., and CON-NOR, ERWIN and FITZGERALD, JJ.

JUNEAU EDUCATION ASSOCIATION, Appellant, v. CITY AND BOROUGH OF JUNEAU and Board of Education of the City and Borough of Juneau, Appellees.

JUNEAU EDUCATION ASSOCIATION, Appellant, v. CITY AND BOROUGH OF JUNEAU and Board of Education of the City and Borough of Juneau, Appellees. No. 2288. Supreme Court of Alaska. Aug. 29, 1975. Peter M. Page of Gregg, Fraties, Petersen & Page, Juneau, for appellant. Avrum M. Gross, of Faulkner, Banfield, Doogan, Gross & Holmes, Juneau, for ap-pellees.

3661

22843

OPINION Before RABINOWITZ, C. J., and CON-NOR, ERWIN and FITZGERALD, JJ. CONNOR, Justice. This is an appeal from a summary judgment in favor of appellees. Appellant is the recognized collective bargaining agent for the teachers employed by the city and borough of Juneau. The city and borough is represented in the collective bargaining process by its board of education. In 1965 appellant and appellees agreed to bargain with each other, and entered into an agreement which includes recognition of appellant as the collective bargaining agent, principles to which the parties subscribe, and the procedure for negotiations. In section 5 of the agreement appears the following language: "SALARIES AND WORKING CONDITIONS The schedules and policy statements attached are made a part of this agreement. This contract shall remain in force until July 1, 1966 at eight o'clock in the morning. It will be renewed automatically for a period of one year from the expiration date each year unless one of the parties shall have notified the other at least ninety days before the expiration date that it will not accept renewal." In following years the parties negotiated on all subjects. On February 6, 1973, the parties agreed to a variety of items, one of which was the following: "The Board shall provide that the base salary shall be $11,400 beginning with the 1973-74 school year, however this provision eliminates negotiations during a three year period on the following items: Salary, Major Medical, Dental, Retirement, and Sick Leave. Negotiations on the above items will resume for the 76-77 School Year." On October 5, 1973, appellees, through the president of the board of education, informed appellant by letter in part as follows : "As you know, negotiations time is arriving. This letter is to notify you that the Board is ready to begin negotiations, and would like to start meeting with your committee in October. The Board feels the need to review the entire negotiations agreement which is currently in effect since it has not been reviewed since 1966. So as to make the entire contract negotiable, it is first necessary that we give you formal notice of our intention not to renew that contract, and its amendments as it presently stands. Therefore, the Juneau Education Association is hereby notified that the present contract including amendments to it will not be renewed on July 1, 1974. (Paragraph V 1966 contract). This notice does not, of course, affect the salary scale which was negotiated on a three-year basis." After this time an impasse developed in negotiations between the parties. Appellant sued for declaratory relief, with appel-lees counterclaiming for declaratory relief. The superior court ruled that the contract terms were unambigious, and that the 1965 agreement and the agreements arrived at each year thereafter, including 1973, were in essence a single contract, governing the rights and responsibilities of the parties. In interpreting the contract, the court held that the 1973 agreement bound the parties for three years as to salary, major medical, dental, retirement, and sick leave, but that the balance of the matters subject to negotiation could be negotiated after July 1, 1974. Summary judgment was awarded to appellees. The following issues are presented on appeal: 1. Whether the superior court erred in its interpretation of the contract documents. 2. Whether the court erred in awarding as costs certain expenses for discovery depositions. 3. Whether the court erred in awarding attorney's fees against appellant. I. Appellant argues that McBain v. Pratt, 514 P.2d 823 (Alaska 1973), sets forth the principles which require reversal of the trial court's determination. In McBain the court was presented with a claimed conflict between a marital separation agreement and a trust instrument, which were executed on the same day. In resolving the question presented there the court stated: "Wherever possible, repugnant portions of a contract must be harmonized. An interpretation will not be given to one part of a contract which will annul another." 514 P.2d at 828 [footnote omitted]. Appellant urges that the original dura-tional clause in the 1965 agreement and the specific durational clause in the 1973 agreement must be harmonized. If so read, appellant claims, then so long as the entire agreement remains in effect, a moratorium exists as to negotiations. But if either party exercises its power to cancel any portion of the agreement, then the entire agreement, including any specially agreed upon moratorium, is terminated. We are not persuaded that this is the right result. First, the McBain case is distinguishable in that we were there dealing with two contemporaneous instruments, not two expressions of a continuing relationship widely separated in time. Second, we must look to the rules applicable to successive, inconsistent agreements relating to the same subject matter. Appellees rely on Autry v. Republic Productions, Inc., 30 Cal.2d 144, 180 P.2d 888 (1947), for the proposition that the parties may modify an existing agreement by a later, partial ly inconsistent agreement. There an agreement was made in 1938 requiring Mr. Autry to perform acting services. It contained a general provision concerning the parties' rights in the event of interruption of the ability to perform services. In 1942 the parties made a supplemental contract which referred specifically to an interruption of services in the event of military service. In making a determination of the parties' rights after the war, the court stated: "[I]f . . . the 1942 agreement was amendatory of and supplementary to the 1938 agreement, it may be said that paragraph 24 of the later agreement controlled the question of the defendant's rights in the event of the plaintiff's military service. That paragraph, being a specific provision governing the parties' rights on the happening of that contingency, is controlling over any general provision from which the defendant might have inferred some inconsistent right or privilege." 180 P.2d 892-93. Parties to a labor or service contract are always free to amend their agreements. Waters v. Wisconsin Steel Works of Internat'l Harvester Co., 427 F.2d 476, 489 (7th Cir. 1970), cert. denied, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970). And, as the court noted in Cheney v. Rucker, 14 Utah 2d 205, 381 P.2d 86, 89 (1963), "It is fundamental that where parties have rights under an existing contract they have exactly the same power to renegotiate terms or waive such rights as they had to make the contract in the first place." Accord, McDonald Construction Co. v. Murray, 5 Wash.App. 68, 485 P.2d 626 (1971). In NLRB v. Operating Engineers Local 12, 323 F.2d 545, 548 (9th Cir. 1963), the court specifically discussed the problem of construing inconsistent contracts entered into at different times : "Since both contracts were in force, the question arises as to which took precedence . . . . The provisions of these two contracts are inconsistent with each other and since the contracts were entered into by the same parties and cover the same subject matter, it is a well settled principle of law that the later contract supersedes the former contract as to inconsistent provisions." [citations omitted]. In order to effectuate the relinquishment of a collective bargaining right under the provisions of a collective bargaining agreement, the language must be clear and unmistakable. Federal Compress & Warehouse Co. v. NLRB, 398 F.2d 631 (6th Cir. 1968). Applying the foregoing to the present case, it is apparent that the parties did agree to a modification of a portion of the collective bargaining agreement. The original durational clause, although it was incorporated in the 1973 agreement, was created prior to the , 1973 contract. The 1973 agreement did not specifically endorse or reject the original clause; rather, it merely incorporated that clause as part of its reaffirmance of the master agreement as amended. The 1973 durational clause clearly prohibited negotiations with respect to salary and related benefits for a period of three years. This provision was in direct conflict with the original durational clause. The clear intent of the parties was to exchange a promise of a substantial salary increase for a promise of a three-year moratorium on negotiations for increased and related benefits. It is not apparent from the words of the contract that appellant based its acceptance of the salary offer on an understanding that the three-year moratorium would be nullified if either party invoked its rights under the master agreement and allowed the remainder of the contract to expire. We hold that the 1973 amendment remained in force after the appellees' letter of October 5, 1973, reopened negotiations as to the balance of the contract. Appellant next points out that the 1973 agreement related to the 1974 — 75 school year and was, thus, wholly executory. The consideration for that executory agreement was the mutual exchange of promises represented by the contract as it stood upon the completion of the negotiations. Thus, urges appellant, cancellation of part of the agreement works a failure of consideration as to the whole. Appellees contend that the board "can-celled" nothing; rather, it simply failed to renew provisions of a contract which were due to expire. Furthermore, according to appellees, the consideration for the 1973 amendment granting higher salaries was specifically a corresponding promise from appellant to forego discussions on salary for three years, not, as appellant suggests, the "entire agreement." Moreover, appel-lees argue, even if other provisions concerning working conditions were a part of the over-all consideration, those other agreements would be delineated by the terms of the contract under which they were created. If appellant assumed that those agreements were part of the consideration for the salary contract, it also had to assume that the provisions were limited in their duration to one year. Our examination of the wording of the 1973 agreement regarding salary and related benefits reveals a promise by appellees to pay higher salaries to the teachers in exchange for a promise by appellant to forego negotiation on such benefits for three years. No mention is made of any reliance by appellant on the continued existence of the remainder of the contract. The members of the association received and will continue to receive higher salaries as a result of the 1973 agreement. The parties bargained for a promise of higher salaries in exchange for a three-year moratorium. Thus, there was no failure of consideration. Assuming the 1973 amendment is enforced, each party received and will receive exactly what it bargained for when it negotiated the 1973 contract. II. The superior court awarded as costs against the appellant the entire cost of discovery depositions taken by appellees. Appellant argues that the determination of the superior court that the contract was to be interpreted on its face amounts to a ruling that the depositions were not necessary to the resolution of the issues before the court. Relying upon Beaulieu v. Elliott, 434 P.2d 665 (Alaska 1967), appellant concludes that when depositions are not strictly necessary to the cause of the party taking them it is an abuse of discretion to include the expense of taking such depositions in the costs assessed against the unsuccessful party. Appellees argue that the depositions were necessary because, in its complaint, appellant claimed that the intent of the 1973 agreement somehow differed from the language of the agreement. Thus, in an effort to understand the allegations of the complaint, as well as to view the "whole cloth" of the relationship between the parties, appellees took the depositions of the three negotiators of the association who had negotiated the 1973 agreement and who were now claiming, as present negotiators for the association, that the 1973 agreement' was not binding for three years. Appellees note that the depositions were quoted extensively to the court below and that the superior court made reference to the depositions in its memorandum opinion when it held that the negotiations leading up to the agreement were additional support for the court's conclusion. Thus, appellees conclude that, since the depositions were clearly relevant to the issues of this case, i. e., the intent of the parties, and were used in appellees' presentation to the court in resolving the issues, it was not an abuse of discretion for the court to award costs for the taking of the depositions. Beaulieu v. Elliott, supra, is distinguishable. There the superior court refused to tax the losing party for the costs of certain depositions, and we upheld the lower court's decision as not amounting to an abuse of discretion. In particular we said: "The taxing of costs rests largely in the sound discretion of the trial court, and we shall not interfere with the exercise of that discretion except in cases of abuse." 434 P.2d at 678 (footnote omitted). The standard to be applied in ascertaining whether a court has abused its discretion was stated in De Witt v. Liberty Leasing Corp. of Alaska, 499 P.2d 599, 601 (Alaska 1972), as whether the determination is manifestly unreasonable. Given the wording of the complaint filed in this case, we do not view the superior court's decision to tax appellant for the costs of depositions as so manifestly unreasonable as to amount to an abuse of discretion. On this point there is no error. III. Appellant argues that by requiring it to pay the costs of not only its own attorneys but the attorney for the board, a public body, the superior court chose to concentrate on the shoulders of a few the entire costs of good-faith litigation to resolve an important public question. Appellant bases its argument on language contained in Malvo v. J. C. Penney Co., Inc., 512 P.2d 575, 587-88 (Alaska 1973), and Boddie v. Connecticut, 401 U.S. 371, 380, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971). Since Malvo stands for the proposition that a successful litigant should not necessarily receive full reimbursement for attorney's fees and costs, and since appellees did not receive full reimbursement, that case is not controlling. Appellant attempts to cite Malvo for the broader proposition that it is an abuse of discretion to award any attorney's fees to a prevailing party if such an award discourages good-faith litigation. However, the language in that case will not support such a broad reading, since it was concerned solely with the question of full reimbursement. Appellees argue that Malvo is totally irrelevant and that this suit does not involve broad constitutional issues or even a mat ter of significant public interest. Therefore, appellees conclude, it was not unreasonable for the superior court to insist that those who sought to benefit personally through the litigation be required to alleviate at least partially the financial burden of the public which did nothing but attempt to abide by the terms of a clearly written agreement. In the circumstances of this case we find no abuse of discretion in the award of attorney's fees, and no error. Affirmed. BOOCHEVER, J., not participating. . 512 P.2d at 587.

10466958

Larry Roger KRISTICH, Appellant, v. STATE of Alaska, Appellee

Kristich v. State

1976-05-17

No. 2297

796

804

550 P.2d 796

550

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:51:19.086324+00:00

CAP

Before BOOCHEVER, C. J., and CON-NOR, ERWIN, and BURKE, JJ., and DlMOND, J. Pro Tem.

Larry Roger KRISTICH, Appellant, v. STATE of Alaska, Appellee.

Larry Roger KRISTICH, Appellant, v. STATE of Alaska, Appellee. No. 2297. Supreme Court of Alaska. May 17, 1976. Sandra K. Saville, Anchorage, for appellant. Frederick H. Boness, Asst. Atty. Gen., and Avrum M. Gross, Atty. Gen., Juneau, for appellee.

4296

25467

OPINION Before BOOCHEVER, C. J., and CON-NOR, ERWIN, and BURKE, JJ., and DlMOND, J. Pro Tem. DlMOND, Justice Pro Tem. In the district court, the jury found Larry Kristich guilty of maintaining a gambling place in violation of AS 11.60.170. On appeal to the superior court, the conviction was affirmed. On appeal to this court, Kristich seeks a reversal of his conviction on a number of grounds. The Oral Statement of Kristich. A police search of Larry Kristich's premises at approximately 7:00 a. m. on March 24, 1973, resulted in seizure of paraphernalia associated with gambling and the illegal distribution of liquor, and the arrest of 18 persons present, including Kristich, for gambling violations. In the course of the trial, on redirect examination by the prosecuting attorney, police Officer Jansen testified as follows: Q Did Mr. Kristich indicate to you any alternative source of money that he owned that wasn't on his person at that time? A Yes, he did. Q Where was that? A He told me it was in an apartment across the street. Q How did he characterize that — that money ? Did he give it a name ? A He called it the — the roll. Q The roll. What is the function of a roll as you understood it ? A I called it a roll and he said it was across the street. Q What did you mean by the term, the roll? A I — the house money. Q Fine. Thank you. Kristich contends that Jansen's statement that Kristich had acknowledged the existence of the "roll", or the house money, to pay off successful gamblers, was inadmissible because it was incriminating and was taken in violation of the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He argues that when he made the incriminating statement it was in the course of custodial police interrogation, and that Officer Jansen or some other police officer had not warned him, prior to questioning, that he had the right to remain silent, that any statement he made could be used against him and that he had the right to the presence of an attorney, either retained or appointed. As to the nature of the statement, Kris-tich contends it was incriminating. His position is that in order to be guilty of maintaining a gambling place, it had to be established by the state that the persons on his premises, who presumably were engaged in shooting craps and playing poker or other games of chance, were either winning or losing money instead of merely engaging in the games themselves. The existence of the "roll" or house money thus became an important element in the case because it was the source of funds to pay off successful gamblers and thus tended to prove that Kristich was indeed maintaining a place of gambling. Defense counsel voiced no objection to Officer Jansen's testimony regarding the admission by Kristich that a "roll" or house money existed and was in an apartment across the street. She did not raise the Miranda issue then or at any time during the trial, and in final argument, she referred to the possibility that the prosecuting attorney was going to tell the jury that Kristich said the money was across the street and she argued that what Kristich said was made in jest. As a result, the record is completely silent as to whether the Miranda warning was given Kristich before he made the statement as to the existence of the house money, or even assuming that it was given, that Kristich waived his Miranda rights. In the absence of this issue being raised by the defense, we are aware of no requirement that the state lay a foundation as to the Miranda requirement before eliciting Jansen's statement regarding the house money. In these circumstances, since no objection was made and the Miranda issue was not raised in any way in the trial court, we consider it as having been waived by defense counsel, which waiver is binding upon Kristich, and therefore, we decline to consider it on appeal. Discovery. Criminal Rule 16 provides for discovery prior to trial by both the accused and the prosecution. Subdivision (b)(1) (ii) of that rule requires the prosecuting attorney to disclose to defense counsel [a]ny written or recorded statements and summaries of statements and the substance of any oral statements made by the accused. Counsel for Kristich states that she sought pre-trial discovery under Rule 16; that the prosecuting attorney gave her copies of the police report, the affidavit upon which the search warrant was based, and the search warrants; but that at no time did he reveal the substance of any oral statement made by Kristich or even the existence of such a statement. Counsel contends that the consequence of this violation of the Rule was to preclude her from challenging, prior to trial, the admission of Jansen's testimony regarding Kristich's oral statement as to the house money and that to allow the conviction to stand would be to emasculate the purpose of Criminal Rule 16 which is, in part, designed to minimize surprise, afford opportunity for effective cross-examination and meet the requirements of due process. Defense counsel did not include this matter in her statement of points on appeal. In addition, as in the matter of the Miranda issue, defense counsel raised no objection to Jansen's testimony on any basis and in particular said nothing in the trial court as to the failure of the prosecuting attorney to disclose the substance of the oral statement alleged to have been made by Kristich. Had she objected at the time the statement came into evidence, the prosecuting attorney would have had the opportunity to explain, if he were able, his failure to comply with Criminal Rule 16. In any event, we do not find any plain error which would impel us to reverse the conviction of Kristich. In view of the testimony pertaining to the frequent comings and goings in the early morning hours by numerous people at Kristich's residence, the sound of chips and the gambling paraphernalia found on the premises, including $52.85 on the kitchen bar area at which people were gathered and other gambling paraphernalia present, we believe there was ample evidence that Kristich was maintaining a gambling establishment. The prosecuting attorney's failure to produce his statement at the request of defense counsel did not appreciably affect the jury's verdict and therefore the error, if there was any, was harmless. If there were any indication that the prosecuting attorney had purposely avoided giving defense counsel the substance of the oral statement made by Kris-tich, we would not hesitate to remand this matter to the superior court to conduct a hearing to determine whether sanctions should be imposed against the prosecuting attorney under Criminal Rule 16(e)(2). But in view of the failure of defense counsel to raise this issue in her statement of points on appeal, or to raise any objection at the trial, we are not inclined to adopt such a course of action in the instant case. Cautionary Instruction. Also with respect to Kristich's oral statement regarding the existence of the house money, the court failed to give a mandatory cautionary instruction that the oral admissions of a party ought to be viewed with caution. Defense counsel did not request that this instruction be given, nor did she object to the failure of the court to give it. But in light of the mandatory language of Criminal Rule 30(b)(2), requiring that such an instruction be given whether or not the court is requested to do so, the failure to give the instruction is an error we must notice on appeal. What we have just said concerning the failure of the prosecuting attorney to make available to defense counsel the substance of the oral statement made by Kris-tich is dispositive of this point. We believe the failure to give the cautionary instruction did not appreciably affect the jury's verdict and was therefore harmless and not plain error. The Complaint. Criminal Rule 3 provides that a criminal complaint shall be made upon oath in writing, and shall contain a statement of the essential facts constituting the offense charged. Criminal Rule 4(a) (1) provides for the issuance of a warrant or summons only if it appears from the complaint, or from an affidavit or affidavits filed with the complaint, that there is probable cause to believe that an offense had been committed and that the defendant has committed it. Kristich argues that the district court's denial of his motion to dismiss the complaint was error because the affidavit contained in the complaint did not state facts sufficient to show the necessary probable cause. When Officer Jansen and the other police officers entered the premises under the authority of the search warrant, they found, in addition to 18 persons present, evidence of gambling paraphernalia such as dice, dice cups, a dice table and stand, poker chips, a poker table and poker sign, chairs and stools, approximately $50 in cash, an assortment of alcoholic beverages and mixes, and several decks of cards. Either at that time or when Kristich and the others were taken to the police station and booked, they were all arrested on the charge of "attending an illegal business". Kristich was not arrested in so many words for "maintaining a place of gambling", which is what AS 11.60.170 makes criminal and what he was charged with in the complaint. But maintaining a place where gambling is carried on is, in fact, an illegal business and Kristich was indeed "attending" such a business, either by being present if "attend" is used as an intransitive verb, or by being in charge of the business, if used as a transitive verb. In any event, Kristich could not have been misled as to the basis for his arrest simply because the arresting officer did not use the words "maintaining a place of gambling". This is clear from the fact that Kristich was the occupant of the premises and from the presence there of tangible things that, as a matter of common sense, had all the earmarks of being implements of gambling. Kristich, in fact, admits that the officers "might" have had probable cause to arrest him at that time without a warrant for maintaining a gambling place if the wording of the statute had been explicitly used. We believe that the officers did in fact have probable cause to make the arrest without a warrant at the time they entered the premises. What was found at that time, together with the prior knowledge of activities in the premises that appears from the detailed recital of facts in Officer Jansen's affidavit in support of the search warrant, would lead a reasonable person to believe that the offense of maintaining a gambling place was com mitted in the presence of the arresting officer. A warrant for the arrest of Kristich was not required, and the arrest was valid. Since the arrest was valid, it was not required that probable cause be shown on the face of the complaint as a prerequisite to issuance of the summons. As we stated in Drahosh v. State, 442 P.2d 44, 46 (Alaska 1968): When a valid arrest is made without a warrant, the complaint serves only the function of a pleading. In such cases probable cause need not be shown on the complaint's face, but only the essential elements of the offense charged, so as to enable the defendant to adequately prepare his defense and to safeguard him against the possibility of being tried twice for the same acts or omissions, [footnote omitted] We hold that the complaint was sufficient to inform Kristich of the crime with which he was charged. From what was stated in the complaint he could tell precisely what offense he was being called upon to defend. The court did not err in denying the motion to dismiss the complaint. Hearsay. Shortly after the police entered Kristich's premises, Officer Lacey approached a table where a Mr. Evans was seated. Lacey testified as follows: As I approached the table, Mr. Evans looked up at me and smiled and said, "How come you guys raid me every time I have a winning hand", at which time he threw the cards face up on the table and threw his hands in the air. This statement was admitted over the objection of defense counsel. Kristich argues that it was error to admit the statement because it was hearsay. In Watson v. State, 387 P.2d 289, 293 (Alaska 1963), we stated: Evidence of a statement made other than by a witness who was testifying is excluded as hearsay only when it is offered to establish the truth of the fact stated. Where it is offered without reference to its truth, but for some other relevant purpose, then the hearsay rule does not apply. Mr. Evans' statement to Officer Lacey was offered without reference to the truth of the matters asserted, i. <?., that a raid was taking place and that Evans' had a winning hand. The statement was offered for the relevant purpose of showing that gambling was taking place on the premises that belonged to Kristich. There was no error in admitting the statement. The Search Warrant. A search warrant shall not be issued "but upon probable cause, supported by oath or affirmation". Kristich contends that the affidavit in support of the search warrant issued was insufficient to show probable cause. The affidavit, consisting of nine typewritten pages, was made by Officer Jansen, an investigator of the Anchorage Police Department. It contains the following salient facts: (1) The premises, known as 421 E. 15th Avenue, Anchorage, were under a general police surveillance for a six-week period in January and February, 1973. During that time, Officer Jansen and two other police officers observed numerous persons entering and leaving the premises after 5 a. m. nearly every morning. (2) A more intensified surveillance began March 3 and continued until about March 23, 1973. During that time, Jansen and other officers observed the same degree of activity about the premises as they had observed in January and February, and on a number of occasions saw Kristich come out of the front door, go to the rear of the house and dump what appeared to be trash in a garbage can. (3) During the March surveillance Jansen saw three specific persons, among others, enter and leave the premises. These three were known to Jansen as persons who, on a variety of occasions in the past, had been arrested for gambling and had either forfeited bail or entered pleas of guilty. On three separate occasions, the officers heard through a partially opened window the rattling of gambling chips "such as is made when they are thrown on a table". (4) On five previous occasions Kristich had been arrested and had entered guilty pleas on the charge of maintaining an illegal business involving gambling and the illegal distribution of liquor at these same premises. (5) The premises involved were rented by Kristich from Russel and Betty Ar-net. The utilities, such as water, garbage, telephone and electricity were in the name of Kristich. In support of his assertion that the affidavit of Jansen was insufficient to justify issuance of the search warrant, Kristich relies principally upon the United States Supreme Court decision in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). There the Court held, among other things, that the allegation in the affidavit that Spinelli was known as a gambler and an associate of gamblers, was "but a bald and unilluminat-ing assertion of suspicion that is entitled to no weight in appraising the magistrate's decision." Here we have considerably more than the mere assertion that Kristich was known as a gambler and an associate of gamblers. In Spinelli the period of surveillance was for five days, whereas here it extended over a period of more than nine weeks. Also in Spinelli, the activity was innocent-seeming, whereas here there was a large number of comings and goings by known gamblers at Kristich's residence between 5 and 7 a. m. on an almost daily basis. In addition, Officer Jansen supported his assertion that Kristich was associating with known gamblers by reciting the latter's past convictions or forfeitures of bail for gambling offenses. Furthermore, there was not simply a bald assertion that Kristich was a "known gambler". The affidavit contained facts showing that on five previous occasions Kristich had been convicted of maintaining a gambling establishment, two of which involved the very same premises that was the subject of the search made in this case. Finally, a later decision of the United States Supreme Court modified Spinelli in one important respect. In United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L. Ed.2d 723 (1971), the Court held that a police officer's knowledge of a suspect's reputation was a "practicable consideration of everyday life" upon which a magistrate may properly rely. The Supreme Court said: To the extent that Spinelli prohibits the use of such probative information, it has no support in our prior cases, logic, or experience and we decline to apply it to preclude a magistrate from relying on a law enforcement officer's knowledge of a suspect's reputation. The affidavit of Jansen was sufficient to show probable cause for the magistrate to issue a warrant to search the premises involved here. Probability, not proof, is the standard for probable cause. The affidavit does not contain mere assertions of belief or suspicions that gambling was taking place. Examining it in a common-sense manner as a whole, the affidavit contains reliable information in sufficient detail to warrant a reasonably prudent magistrate in believing that, in all probability, a criminal offense had been or was being committed. As an additional ground for attacking the sufficiency of the affidavit, Kristich states in his brief that much of the affidavit is hearsay without identification of the source or its trustworthiness. He does not, however, elaborate on the point. Appellate Rule 11 (b) (1) [g] requires the argument in a brief to contain the contentions of the appellant with respect to the issues presented, and the reasons therefore, with citations to the authorities, statutes and parts of the record relied on. . . . Since the issue as to hearsay is given no more than cursory treatment, and does not comply with the rule, we consider it as abandoned and as not meriting the attention of this court. Fairview Development, Inc. v. City of Fairbanks, 475 P.2d 35, 36 (Alaska 1970); Lewis v. State, 469 P.2d 689, n. 2 at 691-92 (Alaska 1970). Kristich also contends that the warrant itself is defective because it fails to set out probable cause. He refers to Criminal Rule 37(a) (3) (ii), which states: (3) The warrant . (ii) shall state the ground or probable cause for its issuance and the names of the persons whose affidavits have been taken in support thereof. Kristich's interpretation of that rule is that "ground" and "probable cause" are synonymous and therefore, the requirement for showing probable cause by affidavit for the issuance of the warrant applies as well to the warrant itself. This question was raised in Hanby v. State, 479 P.2d 486, 495-96 (Alaska 1970), but we found it unnecessary to decide it because in that case the warrant was invalid on other grounds. The magistrate stated in the search warrant that Jansen had made an affidavit stating there was being concealed on Kris-tich's premises "[g] ambling paraphernalia, dice, chips, money and tables used in the playing of dice and card games, . . ." in possession of persons who intended to use the paraphernalia in violation of AS 11.60.170; that he (the magistrate) was satisfied there was probable cause to believe that the property so described was concealed on the premises, "and that the foregoing grounds for application of the search warrant exist". The search warrant complied with the requirements of the rule that the warrant "state the ground or probable cause for its issuance". [Emphasis added] The ground for the issuance of the warrant was a recitation of the reason for issuing it — that the magistrate was satisfied from Jansen's affidavit that probable cause, as required by the constitution, existed. There was no reason for reciting in the warrant the contents of the affidavit. This would have been unnecessarily repetitive because it appears from the warrant that the basis for its issuance was Jansen's affidavit, and the affidavit was part of the record of the case and available to the parties for inspection. The judgment of the conviction is af- . firmed. AFFIRMED. RABINOWITZ, J., not participating. . AS 11.60.170 provides : A place where gaming or gambling is carried on, or where a banking or other game is played with cards, dice, or other device, whether played for money, or for checks, chips, credit, representing money, or other representative of value, or where unlicensed manufacture or sale or drinking of intoxicating liquor is allowed, or where persons are permitted to resort for the purpose of gaming or gambling, and all implements or property used and kept in maintaining these places are declared to be common nuisances. A. person who maintains, aids or abets, or is associated in maintaining such a place is guilty of a misdemeanor, and upon conviction is punishable by a fine of not less than $100 nor more than $500, or by imprisonment in a jail for not less than 30 days nor more than six months, or by both. . Although the statement was made at his own residence and before he was placed under arrest, he was not free to leave at any time after the police arrived. The Miranda decision requires warnings be given when a person is "deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706 (1966). . These are required by Miranda. 384 U.S. 436, at 444, 86 S.Ct. 1602, 16 L.Ed.2d 694, at 706-07 (1966) ; Hammonds v. State, 442 P. 2d 39, 40 (Alaska 1968). . The police found on Kristich's premises dice and dice tables, a number of decks of playing cards, poker tables, poker chips, and other items that indicated games of chance were being played. In addition, a substantial amount of alcoholic beverages was found. . Pin-Ball Machine v. State, 371 P.2d 805, 808 (Alaska 1962). . $52.80 was found in the gambling area during the search of Kristich's residence. . Lanier v. State, 486 P.2d 981, 988 (Alaska 1971). . Crim.K. 16(a) provides: In order to provide adequate information for informed pleas, expedite trial, minimize surprise, afford opportunity for effective cross-examination, and meet the requirements of due process, discovery prior to trial should be as full and free as possible consistent with protection of persons, effective law enforcement, and the adversary system. . This is the test for determining whether non-constitutional error is harmless, as set out in Love v State, 457 P.2d 622 (Alaska 1969). . Crim.R,. 16(e) (2) provides: Willful violation by counsel of an applicable discovery rule or an order issued pur-uant thereto may subject counsel to appropriate sanctions by the court. See Des Jardins v. State, Opn. No. 1245, March 8, 1976, 551 P.2d 181 (Alaska 1976). .At the time of the trial, Crim.R. 30(b) (2) provided: whether or not requested to do so, [the court] shall give the following basic instructions on all proper occasions: (2) That the testimony of an accomplice ought to be viewed with distrust and the oral admissions of a party with caution. The rule was revised by Supreme Court Order No. 222, effective December 15, 1975, to give more discretion to the trial judge in giving jury instructions. . Anthony v. State, 521 P.2d 486, 489-90 (Alaska 1974). . Love v. State, 457 P.2d 622 (Alaska 1969). . Crim.R. 3 provides in part: (a) The complaint is a written statement of the essential facts constituting the offense charged. It shall be made upon oath before any judge or magistrate, except that complaints for traffic violations or for misdemeanors where the arrest has been made without the necessity of a warrant may be signed before any person authorized by law to administer oaths. . .The American Heritage Dictionary of the English Language, at 85 (1969, 1970). . Howes v. State, 503 P.2d 1055, 1058-59 (Alaska 1972); Miller v. State, 462 P.2d 421, 425-26 (Alaska 1969); Rubey v. City of Fairbanks, 456 P.2d 470, 474 (Alaska 1969). . See also Rubey v. City of Fairbanks, 456 P.2d 470, 479-80 (Alaska 1969) (dissenting opinion of Justice Rabinowitz); Tracey v. State, 391 P.2d 732, 734 (Alaska 1964). Cf. Avery v. State, 514 P.2d 637, 644-45 (Alaska 1973). . United States Constitution, Fourth Amendment; Alaska Constitution, art. I, § 14. . 393 U.S. at 414, 89 S.Ct. at 588, 21 L.Ed. 2d at 643. . 403 U.S. at 583, 91 S.Ct. at 2082, 29 L.Ed. 2d at 733. .Davis v. State, 499 P.2d 1025, 1028 (Alaska 1972), reversed on other grounds, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). . Eliason, v. State, 511 P.2d 1066, 1070 (Alaska 1973). . Harrelson v. State, 516 P.2d 390, 396 (Alaska 1973). For an illuminating analysis of the sufficiency of affidavits in relation to the issuance of search warrants, see this court's opinion, authored by Chief Justice Boochever, in Keller v. State, 543 P.2d 1211 (Alaska 1975). . Note 1, supra. . United States v. Klapholz, 17 F.R.D. 18, 24 (S.D.N.Y.1955).

10467186

In the Matter of the ESTATE of Howard H. KUHNS, Deceased, Appellant, v. Jean KUHNS, Appellee

Estate of Kuhns v. Kuhns

1976-05-21

No. 2575

816

820

550 P.2d 816

550

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:51:19.086324+00:00

CAP

Before BOOCHEVER, C. J., RABINO-WITZ, ERWIN and BURKE, JJ., and DIMOND, J. Pro Tem.

In the Matter of the ESTATE of Howard H. KUHNS, Deceased, Appellant, v. Jean KUHNS, Appellee.

In the Matter of the ESTATE of Howard H. KUHNS, Deceased, Appellant, v. Jean KUHNS, Appellee. No. 2575. Supreme Court of Alaska. May 21, 1976. Thomas E. Fenton, Fairbanks, for appellant. Patrick T. Brown and Linda L. Walton of Rice, Hoppner & Hedland, Fairbanks, for appellee.

2132

13025

OPINION Before BOOCHEVER, C. J., RABINO-WITZ, ERWIN and BURKE, JJ., and DIMOND, J. Pro Tem. RABINOWITZ, Justice. This appeal raises the first impression question in Alaska of whether the obligation of the decedent to make alimony payments, pursuant to a property settlement agreement, is enforceable against the decedent's estate. In April of 1966, appellee Jean Kuhns filed a complaint for divorce against her husband, Howard Kuhns, after approximately 30 years of marriage. After the commencement of the action, the parties entered into a property settlement agreement which was filed in the superior court. The agreement was approved and incorporated by reference in the superior court's findings of fact and decree of divorce. In its relevant parts, the property settlement agreement provided that Jean Kuhns was to receive three lots of real property; certain household furnishings; a 1962 Studebaker; two life insurance policies insuring the life of the decedent; and her personal property. Paragraph 7 of the agreement provided that Howard Kuhns shall pay to Jean Kuhns " . . . in satisfaction of [her] share of the property accumulated by the parties, not otherwise disposed of herein, . . ." the sum of $21,800, to be paid by Howard Kuhns in monthly installments of $181.67. Paragraph 9 further stipulated that "The Court shall enter an order that Defendant shall pay Plaintiff the sum of Six Hundred ($600.00) Dollars per month as alimony, such payments to cease upon the remarriage of Plaintiff." Following the death of Howard Kuhns, appellee Jean Kuhns petitioned the superi- or court for allowance of her claim against the estate of the decedent, seeking continued payment of alimony until her remarriage or death. The personal representative of the estate then moved for amendment of the decree of divorce to strike the provision governing alimony. The claim and the motion were then consolidated, and after a hearing the superior court denied the estate's motion. The estate brings this appeal from the superior court's denial of its motion for modification of the decree. The general rule is that the obligation to make alimony payments, in the absence of an agreement to the contrary, does not survive the death of the obligor. It is established that alimony is essentially an allowance for the support of the beneficiary, in lieu of the right of support which the beneficiary forfeits by the dissolution of the marriage. Since alimony compensates for the support from future income lost because of the divorce, logically the right to alimony should terminate when the income-earning capacity of the obligor is extinguished. Most courts and commenta tors agree that, absent a specific agreement of the parties to the contrary, the obligation of alimony terminates upon the death of the obligor. We are persuaded that the general rule is based on sound policy and. therefore hold that absent a specific agreement or decree provision to the contrary, the obligation to pay alimony terminates upon the death of the obligor. One leading commentator in this field has observed: In most cases the continuance of alimony causes hardship, inconvenience and expense to those closer to the husband than his ex-wife, such as the wife and children of a second marriage. It requires the estate to be held open, perhaps for a long time, and may frustrate the scheme of disposition set up in the husband's will. Although there may be circumstances where alimony ought to continue . . . such cases are rare, and the rule should be that alimony ends on his death unless the decree plainly provides otherwise. H. Clark, Law of Domestic Relations § 14.9, at 462-63 (1968). In reaching our decision we find the authorities relied upon by Jean Kuhns are distinguishable. More particularly, in Welsh v. Welsh, 346 Mich. 292, 78 N.W.2d 120 (1956), the Michigan Supreme Court held that the death of the husband did not by itself warrant modification or termination of the decedent's obligation in the settlement agreement to pay alimony. There the court relied principally upon its earlier decision was premised on a Michigan stat-506, 14 N.W.2d 129 (1944). This earlier decsion was premised on a Michigan statute which abrogated the common law rule and specifically authorized alimony payments from an estate. Since Alaska has no comparable statute, the Welsh holding is inapposite. In Storey v. Storey, 125 Ill. 608, 18 N.E. 329 (1888), the Supreme Court of Illinois held that the divorced wife was entitled to continued alimony payments from the estate of her former husband. Of significance, however, is the fact that the court found in the terms of the settlement agreement an expressed intention on the part of the parties that the successors of the husband were bound by the obligation to pay alimony. Thus, Sto-rey is representative of the principle that the parties in a divorce proceeding may undertake by contract to create an obligation to pay alimony binding on the obli-gor's estate and successors. This brings us to the second question in this appeal, namely, whether the parties contracted to modify the general common law rule governing alimony. Jean Kuhns urges us to give effect to the "plain meaning" of the language used in paragraph 9 of the property settlement agreement. She argues that since the parties provided that the alimony obligation ceases upon her remarriage, it was necessarily contemplated that no other contingency would terminate the alimony payment obligation. Parallel arguments have largely been rejected by other courts which have construed similar alimony provisions. In the circumstances where the provision in question can be fairly said to be silent with respect to the obligor's death, the courts have been reluctant to construe the provision in a manner which would result in the perpetuation of the obligation to pay alimony. Typical of the decisional law expressing this attitude is Luce v. Providence Union National Bank, 122 F.Supp. 21, 23 (D.R.I.), aff'd 217 F.2d 648 (1st Cir. 1954): the well-established rule is that the obligation to make alimony payments ceases upon the death of the husband unless the decree by its terms expressly and unequivocally provides that the obligation shall continue beyond his death and shall be binding upon his heirs. In the absence of such unequivocal terms, the burden should be upon the recipient of the alimony to establish the parties' intention that the obligation continue. Study of the entire property settlement agreement convinces us that Jean Kuhns did not sustain her burden of proof. Of principal significance in this regard is the 5th paragraph, which gives to Jean Kuhns ownership and control of the two insurance policies on the life of the decedent carrying a total of $15,000 coverage. This, portion of the property settlement agreement evidences that the parties contemplated the eventuality of Howard Kuhns' death and took explicit steps to provide Jean Kuhns with a certain measure of financial security in the event of Howard's death. Presumably had they intended the 'alimony obligation to afford additional resources after his death, the parties would have made that decision equally explicit. The failure to expressly provide for continuation of alimony payments after death should be viewed as evidence of a contrary intent. We therefore reverse the superior court's judgment in the instant case and remand the matter for further proceedings consistent with this opinion. CONNOR, J., not participating. . The remaining provisions of the agreement concerned child custody and support, a lease of the family home, and Howard Kuhns' assumption of liability for all debts of the marriage. . In its order denying the estate's modification motion, the superior court stated in part " . . the Motion is not well taken for the reason that the property settlement agreement does not provide the termination of alimony payments on the death of the husband . . . . " The superior court presumably allowed the claim of Jean Kuhns, although its order does not explicitly address the subject of the claim Jean Kuhns presented against the estate. . Desjardins v. Desjardins, 308 F.2d 111, 117 (6th Cir. 1967). . Cross v. Gross, 5 Ill.2d 456, 125 N.E.2d 488, 491 (1955) ; Snouffer v. Snouffer, 132 Ohio St. 617, 9 N.E.2d 621, 622 (1937) ; Emerson v. Emerson, 120 Md. 584, 87 A. 1035, 1039 (Md.App.1913). . Platt v. Davies, 82 Ohio App. 182, 77 N.E. 2d 486, 490 (1947). . Estate of Houston v. Houston, 521 P.2d 182, 183 (Colo.App.1974) ; Rauser v. Rauser, 47 Wis.2d 295, 297, 177 N.W.2d 115, 118 (1970) ; Schroeder v. Schroeder, 234 Md. 462, 463, 200 A.2d 42, 43 (1964) ; Desjardins v. Desjardins, 308 F.2d 111, 117 (6th Cir. 1967) ; Warren v. Warren, 361 P.2d 525, 527 (Wyo.1961) ; Luce v. Providence Nat'l Bank, 122 F.Supp. 21, 23 (D.R.I.), aff'd per euriam 217 F.2d 648 (1st Cir. 1954) ; Foster v. Foster, 195 Va. 102, 77 S.E.2d 471 (1953) ; Pike v. Pike, 208 P.2d 380 (Cal.1949) ; and De Reimer v. Old Nat'l Bank of Spokane, 60 Wash.2d 686, 374 P.2d 973 (1962). See also H. Clark, Law of Domestic Relations § 14.9, at 461-63 (1968) ; W. Nelson, Divorce and Annulment § 17.20, at 94 (2d ed. 1961). . Van Haltern v. Van Haltern, 351 Mich. 286, 88 N.W.2d 485 (1958), is also cited by appellee. Since the decision in Van Haltern relies on Welsh and Braffett, it too is in-apposite for the same reason. .In the superior court appellee also relied upon Stoutland v. Stoutland, 103 N.W.2d 286 (N.D.1960) ; Roberts v. Roberts, 257 Iowa 1, 131 N.W.2d 458 (1964) ; and Ford v. First Nat'l Bank in St. Petersburg, 260 So.2d 876 (Fla.1972). These eases are distinguishable upon the grounds that in each the terms of the settlement agreement indicated clearly that the parties had considered the question of death and intended that alimony payments continue beyond the death of the obligor. Appellee Jean Kuhns also relies on Goggans v. Osborn, 16 Alaska 451, 237 F.2d 186, 189 (9th Cir. 1956), a pre-statehood Alaska case involving the enforcement by contempt proceedings of a husband's obligation under a property settlement agreement. In dicta, the court stated, "A decree providing for alimony, whether or not based on a contract, may be modified or terminated upon the death of the husband. ." Appellee points to the word "may," arguing the inference that an alimony decree may not be terminated by death as well. But Ooggans cited International Trust Co. v. Liebhardt, 111 Colo. 208, 139 P.2d 264, 268 (1947), in support of the quoted proposition. In Liebhardt the Colorado Supreme Court said that, absent a provision to the contrary, " . . . [t]he duty to support terminates with death, and the right to alimony also ceases. The function of alimony is merely to make provision for the support of the wife during the lifetime of the husband." . Resolution of this issue is a question of law, Day v. A & G Const. Co., 528 P.2d 440, 443 (Alaska 1974), which requires application of principles of contract interpretation to the settlement agreement. Western Airlines, Inc. v. Lathrop Co., 535 P.2d 1209 (Alaska 1975). . See, e. g., Estate of Houston v. Houston, 521 P.2d 182, 183 (Colo.App.1974); H. Clark, supra, note 6, at 462 n. 96 and eases cited therein. . The claimant has the burden of proving this intent by "clear, cogent and convincing evidence." (Compare Hendricks v. Knik Supply, Inc., 522 P.2d 543, 547 (Alaska 1974). . Paragraph 7 of the settlement agreement is further evidence of the parties' contemplation of the contingency of Howard Kuhns' death and is also reflective of explicit measures to insure that the obligation to pay the sum of $21,800 continued "until fully paid." . See Estate of Houston v. Houston, 521 P.2d 182, 184 (Colo.App.1974) ; Ball v. Ball, 183 Neb. 216, 159 N.W.2d 297, 301 (1968) ; Desjardins v. Desjardins, 308 F.2d 111, 118 (6th Cir. 1962). . The division of the parties' accumulated wealth may result in an obligation to make a lump sum payment of money, sometimes denominated "alimony in gross." An award of "alimony in gross" is fundamentally an award of a definite sum of money, analogous to an award of a particular piece of property. See 24 Am.Jur.2d, Divorce and Separation § 614 (1966). The obligation to pay "alimony in gross" is a vested right of the beneficiary and is enforceable against the estate of the payor. Shea v. Shea, 537 P.2d 417 (Okl. 1975) ; Herbert v. Huggins, 231 Ga. 489, 202 S.E.2d 443 (1973) ; Ball v. Ball, 183 Neb. 216, 159 N.W.2d 297, 300 (1968) ; Warren v. Warren, 361 P.2d 525, 527 (Wyo.1961). It is clear from the agreement in this case that paragraph 9 of the settlement agreement was not intended to create an obligation to pay "alimony in gross" and appellee does not so contend.

10467120

Pete AIKEN et al., Appellants, v. Lawrence JEFFERSON et al., Appellees

Aiken v. Jefferson

1976-06-04

No. 2460

813

815

550 P.2d 813

550

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:51:19.086324+00:00

CAP

Before BOOCHEVER, Chief Justice, RABINOWITZ, ERWIN and BURKE, Justices, and DIMOND, Justice Pro Tern.

Pete AIKEN et al., Appellants, v. Lawrence JEFFERSON et al., Appellees.

Pete AIKEN et al., Appellants, v. Lawrence JEFFERSON et al., Appellees. No. 2460. Supreme Court of Alaska. June 4, 1976. Richard J. Ray and Eugene Miller, Miller & Ray, Fairbanks, for appellants. Lloyd I. Hoppner and Linda Walton, Rice, Hoppner & Hedland, Fairbanks, for appellees. Before BOOCHEVER, Chief Justice, RABINOWITZ, ERWIN and BURKE, Justices, and DIMOND, Justice Pro Tern.

1576

9635

OPINION ERWIN, Justice. During the latter part of May, 1973, the parties to this action entered into negotiations for the sale of certain property located in Fairbanks, Alaska. Problems developed, and as a consequence the appellants filed a complaint for specific performance of an alleged oral contract for the sale of real property. The appellants, small contractors who knew appellee Jefferson and had worked with him on various jobs in the past, initiated the preliminary discussion to obtain the property in question because of Jefferson's financial plight. At the initial meeting, attended by appellant Aiken and Jefferson, the discussion focused on the latter's loan with the Small Business Administration, the liens against the property, an earnest money agreement and another buyer's offer of purchase. At a second meeting, apparently occurring shortly after the first, Aiken proposed in exchange for the property a down payment of $10,000, an assumption of the Jeffersons' loan payments to the Small Business Administration, and payment of liens against the property. The record does not disclose what, if anything, came of this offer. On May 22, 1973, a third meeting was held and all parties were in attendance. The sale of the property was again discussed; it was decided that the appellants would confer with the Small Business Administration regarding their assumption of the Jeffersons' loan payments before any further action would be taken. On May 23, 1973, after conferring with Small Business Administration representatives and visiting the recording office, the parties met again to discuss the sale of the property. At this meeting Jefferson made certain verbal commitments and executed a written memorandum which provided as follows: I, Lawrence Jefferson, do agree to relinquish all my interest in the property listed with SBA under Lawrence T. and Mary Jefferson — SBA Loan No. DL725726-00-05-FAI to A JR Company: Pete Aiken, Dewitt Jackson and Willie Ratcliff in consideration for the sum of ($1.00) One Dollar and the promise to assume payments on above mentioned loan and other obligations associated with said loan agreed to by SBA. Signed, Lawrence T. Jefferson, Mary Jefferson by Lawrence T. Jefferson, Attorney in Fact. Jefferson signed the document for himself and for his wife, as her attorney-in-fact. Jefferson testified at a subsequent deposition that he considered the document "our meeting of the minds." Later that night Jefferson received another offer to purchase the property, the terms of which were more favorable than the appellants'. In light of this new offer, Jefferson called one of the appellants and informed him of his intention to withdraw from the agreement they had reached earlier in the evening. The following day, May 24, 1973, despite Jefferson's expressed intention to revoke the agreement, the appellants made arrangements with the Small Business Administration to assume the Jeffersons' loan payments and, in addition, made a payment of $10,000 to that institution so as to prevent the foreclosure sale scheduled for that afternoon. The appellants also filed suit against the appellees seeking specific performance of the alleged contract entered into by the parties on May 23, 1973, for the conveyance of the property in question. On April 18, 1974, almost a year later, the appellees filed a motion for summary judgment against the appellants; and the motion was granted. The appellants appeal from the superior court's order which granted the appellees' motion for summary judgment. Alaska Civil Rule 56(c), the procedural rules provision under which a motion for summary judgment may be brought, provides in pertinent part that: Judgment shall be rendered forthwith if the pleadings, depositions and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. . . . The appellants' main contention in this action is that the trial court's determination that there was an absence of any genuine issue as to a material fact was error. In the court below the appellants argued the existence of an oral contract in seeking specific performance. Because of this the trial court determined that the Statute of Frauds, which requires an agreement for the sale of real property to be in writing in order to be enforceable, was applicable and therefore a bar to specific performance of the alleged contract. It was the appellants' contention below, as it is herein, that the agreement did not fall within the Statute of Frauds because Jefferson admitted in a deposition the making of an oral contract to sell the property in question on the night of May 23, 1973. They submit that this admission brings the contractual issue squarely within an exception to the Statute of Frauds. Specifically, they rely on § 09.-25.020(4), which provides: A contract, promise, or agreement which is subject to § 10 of this chapter, which does not satisfy the requirements of that section, but which is otherwise valid is enforceable if (4) the party against whom enforcement is sought admits, voluntarily or involuntarily, in his pleadings or at any other stage of this or any other action or proceeding the making of an agreement . . . Upon examining Jefferson's deposition in the light most favorable to the appellants, we do not find that a genuine issue existed as to the material fact of whether or not Jefferson admitted making an agreement to sell the property. However, in reviewing the deposition we do find that Jefferson admitted to an option contract. In essence, the option provided that Jefferson agreed to sell his land on the terms orally agreed to if the SBA approved — the consideration for this option was the payment of one dollar. In view of the fact that the trial court did not make any ruling with respect to an option contract, we remand this case so that fact findings can be made on the nature of the option; specifically, whether the contract comports with the certainty requirement called for in suits for specific performance. Also to be considered is the question of whether such an option contract could be, or was in fact, revoked by Jefferson's actions on the night of May 23, 1973. The summary judgment entered below is reversed and the case remanded for further proceedings in conformity with this opinion. CONNOR, J., not participating. . Appellants submit that the consideration for the conveyance was their assumption of the Jeffersons' obligation to the Small Business Administration and a promise to pay to the Jeffersons a side note in the amount of $40,000, $8,000 to be paid within thirty days and the balance to be paid over the next five years. . AS 09.25.010(b) provides : No estate or interest in real property, other than a lease for a term not exceeding one year, nor any trust or power concerning the property may be created, transferred, or declared, otherwise than by operation of law, or by a conveyance or other instrument in writing subscribed by the party creating, transferring, or declaring it or by his agent under written authority and executed with the formalities that are required by law. This subsection does not affect the power of a testator in the disposition of his real property by will, nor prevent a trust's arising or being extinguished by implication or operation of law, nor affect the power of a court to compel specific performance of an agreement in relation to the property. .In Wilson v. Pollet, 416 P.2d 381, 383-384 (Alaska 1966) (footnotes omitted), we said in part: In ruling on a motion for summary judgment all reasonable inferences from the proofs offered are drawn against movant and viewed in the light most favorable to the party opposing the motion. The court's function when ruling on a motion for summary judgment is to decide whether or not a genuine issue as to any material fact exists. The court is not to resolve any existing genuine issues as to material facts in determining a summary judgment motion. Also see Gray v. Fields, 440 P.2d 855, 856 (Alaska 1968). . The record reflects there is some question with respect to whether or not Jefferson received the one dollar payment. In this appeal we must assume that the dollar was paid in consideration for the option since as far as the motion for summary judgment is concerned, all disputed facts must be resolved in favor of appellants. . Because the terms of the option contract will be determined in future proceedings, we consider it appropriate to note that this court has dealt with the requirement of certainty in three cases: Alaska Creamery Products v. Wells, 373 P.2d 505 (Alaska 1962) ; Lewis v. Lockhart, 379 P.2d 618 (Alaska 1963), and Rego v. Decker, 482 P.2d 834 (Alaska 1971). We have also taken the opportunity in two other cases to consider specific problems which arise when dealing with the question of certainty : Hollaus v. Arend, 511 P.2d 1074 (Alaska 1974), and Prokopis v. Prokopis, 519 P.2d 814 (Alaska 1974). These cases and the subject in general were thoroughly dealt with in a recent law review article. See Comment, Requirements of Certainty in Land Sale Contracts in Alaska, 5 U.C.L.A. Alaska L.Rev. 112 (1975).

10357889

David TONEY, Appellant, v. FAIRBANKS NORTH STAR BOROUGH SCHOOL DISTRICT, BOARD OF EDUCATION, Appellee

Toney v. Fairbanks North Star Borough School District

1994-09-30

No. S-5900

1112

1116

881 P.2d 1112

881

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:51:34.152370+00:00

CAP

Before MOORE, C.J., and MATTHEWS, COMPTON and EASTAUGH, JJ.

David TONEY, Appellant, v. FAIRBANKS NORTH STAR BOROUGH SCHOOL DISTRICT, BOARD OF EDUCATION, Appellee.

David TONEY, Appellant, v. FAIRBANKS NORTH STAR BOROUGH SCHOOL DISTRICT, BOARD OF EDUCATION, Appellee. No. S-5900. Supreme Court of Alaska. Sept. 30, 1994. Dick L. Madson, Law Offices of Dick L. Madson, Fairbanks, for appellant. W.D. Bennett and Krissell Crandall, Perkins Coie, Anchorage, for appellee. Before MOORE, C.J., and MATTHEWS, COMPTON and EASTAUGH, JJ.

2546

15535

OPINION MOORE, Chief Justice. INTRODUCTION In March 1992, David Toney was fired from his position as a tenured teacher with the Fairbanks North Star Borough School District (the "District"). The termination was based on evidence establishing that To-ney had engaged in a sexual relationship in 1980 with a 15 year old student while Toney was a teacher in Boise, Idaho. Toney appealed his termination to the superior court, which granted summary judgment in favor of the District. The court concluded that To-ney's failure to disclose the relationship constituted a material misrepresentation and a breach of the contractual covenant of good faith. The court also found that the relationship itself supported termination under AS 14.20.170(a). We affirm the superior court's grant of summary judgment in favor of the District on the latter ground. FACTS AND PROCEEDINGS In 1980, Toney was employed as a teacher at Capitol High School in Boise, Idaho. In December of that year, he entered into a sexual relationship with a 15 year old student, Traci F. At that time, Toney was in his early thirties. Shortly thereafter, Traci became pregnant with Toney's child. She then transferred to a school for pregnant teenagers. In November 1981, Traci gave birth and, with the consent of all parties, the child was adopted. In October 1981, just prior to the birth of the child, Toney and Traci's father entered into a confidential written agreement concerning Traci's medical expenses and other costs relating to the child's birth. In the same document, Toney also agreed to "submit his resignation or take a leave of absence from the faculty of Capitol High School for the second semester of the 1981-82 school year and for the next school year in order to permit Traci to attend Capitol High School and to graduate therefrom." Pursuant to this agreement, Toney resigned from teaching in the Boise School District before the beginning of the 1982 spring semester. Meanwhile, in the spring of 1981, Toney completed an application for employment with the Fairbanks North Star Borough School District. The application was dated February 8, 1981. However, it was not stamped as received by the District until April 28, 1981. Included in this application were Toney's assertions that he had not been asked to resign for any reason from a teaching position and that he had not been convicted of any offense involving moral turpitude. In August 1982, Toney was contacted by Bill Rogers, a principal with the District, regarding his application. Toney reaffirmed his interest in a position with the District. Rogers then contacted Don Johnson, the principal of Capitol High School in Boise, who gave Toney a positive recommendation. Mr. Johnson did not reveal that Toney had resigned from Capitol High School at midyear during the 1981-82 school year. Toney then came to Fairbanks to interview for a teaching position. During the interview, Toney did not disclose his relationship with Traci, nor did he disclose that he had not been employed as a teacher during the spring semester of the 1981-82 school year. Following the interview, Toney was recommended to fill a position with the District. Following this recommendation, Toney was asked to complete an "affidavit of teaching experience" and a "teacher's personal record" for the District's files. Toney incorrectly indicated on both documents that he held a full-time teaching position with the Boise School District for the entire 1981-82 school year. A non-tenured contract was executed on September 17, 1982. In 1992, after learning that Toney was teaching in Fairbanks, Traci contacted District personnel and informed them of her prior relationship with Toney. After investigating the allegations, the District terminated Toney by letter dated March 26, 1992. The letter stated that Toney's firing was based on his failure to disclose to the District his relationship with Traci and his resignation pursuant to the agreement with Traci's father. In addition, the letter stated that Toney's conduct supported termination under AS 14.20.170(a)(2)-(3), on the grounds that it constituted "immorality and substantial noncompliance with the school laws of the state, the regulations or bylaws of the Department of Education, the bylaws of the District and the written rules of the superintendent." Toney appealed his termination to the Borough's Board of Education. The Board upheld the dismissal by a vote of six to one. Toney then appealed to the superior court. Both parties filed motions for summary judgment. The superior court granted the District's motion in an Opinion and Order dated August 4,1993. The court held that Toney's failure to reveal the relationship and the circumstances surrounding his resignation constituted misrepresentation and a breach of the contractual duty of good faith. The court further held that Toney's actions supported termination under AS 14.20.170(a)(2)-(3). Toney now appeals. DISCUSSION The facts material to this appeal are undisputed. This appeal involves only pure questions of law, subject to de novo review by this court. In such cases, the court adopts the rule of law that is most persuasive in light of precedent, reason and policy. Loeb v. Rasmussen, 822 P.2d 914, 917 (Alaska 1991). In the present case, the superior court concluded that "Toney's actions and conduct establish immorality under AS 14.20.170(a)(2) and are sufficient grounds for his dismissal." We affirm the judgment of the superior court on the same basis. Under AS 14.20.170(a)(2), a teacher, including a tenured teacher, may be dismissed for "immorality, which is defined as the commission of an act that, under the laws of the state, constitutes a crime involving moral turpitude." A criminal conviction is not necessary to support a teacher's dismissal under this provision. Kenai Peninsula Borough Bd. of Educ. v. Brown, 691 P.2d 1034, 1040 (Alaska 1984). In addition, it is well-established that there need not be a separate showing of a nexus between the act or acts of moral turpitude and the teacher's fitness or capacity to perform his duties. Id. at 1040-41. As the court in Brown stated, "[i]f a teacher cannot abide by these standards his or her fitness as a teacher is necessarily called into question." Id. at 1041. Thus, in the present case, so long as the District had sufficient evidence to conclude that Toney committed an act or acts which constituted a crime of moral turpitude, the dismissal is valid, even in the absence of a conviction. See id. Toney acknowledges that he engaged in a sexual relationship with Traci when she was 15 years old and a student of his. This conduct satisfies the elements of the crimes of sexual abuse of a minor in the second and third degree under Alaska law as presently enacted. AS 11.41.436(a)(1) and (a)(5)(B); 11.41.438(a). Toney's conduct also constitutes a crime under Alaska law as it existed in 1981, under present Idaho law, and under Idaho law as it existed in 1981. Toney does not dispute that his conduct with Traci was criminal, nor does he deny that his actions constituted crimes of moral turpitude. Instead, he argues that the statute authorizing dismissal for such acts does not reach conduct engaged in before a teacher is hired by a school district. In addressing this argument, the superior court noted that the language of AS 14.20.-170(a)(2) "does not explicitly or implicitly limit the statute's application to . acts that occur only while a teacher is under contract with an Alaska school district." The court further found that the legislative history of the statute offered no support for Toney's argument. Finally, the court recognized that Toney's contention is contrary to sound public policy: As the Borough points out, the effect of such an interpretation would be contrary to public policy as it would allow an individual who commits an act of moral turpitude, and who successfully conceals his/her behavior from a school board, to be immune from dismissal upon subsequent discovery of the conduct. Thus, the court concluded that Toney's pre-hiring conduct "establish[ed] immorality under AS 14.20.170(a)(2) and [was] sufficient grounds for his dismissal." Toney responds by arguing that, under the analysis of the superior court, a teacher could work for thirty years without incident, yet be summarily dismissed for conduct occurring long before his contract of employment. Under such an interpretation, Toney argues, "remoteness of the act is totally irrelevant. Such a construction would be a violation of due process and clearly against public policy." With respect to this argument, the reasoning of the court in Fisher v. Independent School District No. 622, 357 N.W.2d 152 (Minn.App.1984), is persuasive. The fortuitous fact that the school board did not have immediate knowledge of the alleged sexual relationship with the sixteen-year old minor student is not the Board's fault. There is no showing that the Board unduly delayed in bringing this termination action after it had received knowledge of the alleged occurrence. By virtue of the nature of the offense — sexual intercourse with a minor student of the district — it may he considered doubtful whether sttch conduct could ever he too remote in time. Id. at 156 (quoting Johnson v. Independent School Dist. No. 29k, No. 12305 (Minn.Dist. Feb. 12, 1980)) (emphasis in original). Toney offers no argument that he has been unfairly prejudiced by the delay between the conduct in question and his dismissal. Indeed, in light of his admission that the conduct occurred, such an argument would be untenable. In addition, there is no suggestion that the District failed to act promptly upon its receipt of incriminating information regarding Toney. Finally, as the Fisher court noted, it is questionable whether conduct such as that engaged in by Toney could ever be too remote to support a teacher's dismissal. Toney's sole argument is that AS 14.20.-170(a)(2) does not provide for the dismissal of a tenured teacher on the grounds of conduct occurring prior to the teacher's hiring. This argument is nonsensical. Nothing in the language of the statute or its legislative history suggests that such a limited interpretation is appropriate. In addition, as the superior court noted, such a construction would conflict with public policy, since it would immunize from dismissal a teacher who had engaged in illegal and immoral conduct prior to hiring, but who had successfully concealed such conduct. We therefore affirm the superior court's conclusion that Toney's actions were sufficient to support his dismissal under AS 14.20.170(a)(2). CONCLUSION Toney's criminal sexual relationship with a minor student is adequate grounds for his dismissal under AS 14.20.170(a)(2). The superior court's opinion and order upholding Toney's dismissal is therefore AFFIRMED. RABINOWITZ, J., not participating. . In its brief, the District suggests that Toney backdated the application to a date on which he could reasonably claim to have been unaware of Traci's pregnancy. In any event, it is clear that the application was completed after the relationship had begun but before Toney and Traci's father entered into their agreement in October 1981. . In the spring of 1982, Toney was arrested for his conduct with Traci and charged with engaging in lewd conduct with a minor under sixteen, a felony under Idaho law. However, the complaint was later dismissed based upon the agreement between Toney and Traci's father. .AS 14.20.170 provides in relevant part: (a) A teacher, including a teacher who has acquired tenure rights, may be dismissed at any time only for the following causes: (2) immorality, which is defined as the commission of an act that, under the laws of this state, constitutes a crime involving moral turpitude; or (3) substantial noncompliance with the school laws of the state, the regulations or bylaws of the department, the bylaws of the district, or the written rules of the superintendent. . Based on these conclusions, the court declined to address the scope of the resignation clause in the application for employment and the effect of Toney's misstatements in his personnel records regarding the length of his employment in Boise. . Under AS 11.41.436(a), a person is guilty of the class B felony of sexual abuse of a minor in the second degree if (1) being 16 years of age or older, the offender engages in sexual penetration with a person who is 13, 14, or 15 years of age and at least three years younger than the offender .; [or] (5) being 18 years of age or older, the offender engages in sexual contact with a person who is under 16 years of age, and (B) the offender occupies a position of authority in relation to the victim. Under AS 11.41.438(a), a person is guilty of the class C felony of sexual abuse of a minor in the third degree if (1) being 16 years of age or older, the offender engages in sexual contact with a person who is 13, 14, or 15 years of age and at least three years younger than the offender; or (2) being 18 years of age or older, the offender engages in sexual penetration with a person who is 16 or 17 years of age and at least three years younger than the offender, and the offender occupies a position of authority in relation to the victim. . See AS 11.41.410(a)(4)(A) (sexual assault in the first degree); AS 11.41.440(a)(1) (sexual abuse of a minor). . See Idaho Code § 18-1508 (lewd conduct with minor or child under 16); Idaho Code § 18-6101 (statutory rape, age of consent: eighteen). . See Idaho Code § 18-6607 (lewd conduct with minor or child under sixteen). . Toney also argues that other statutes relating to teacher certification suggest that AS 14.20.-170(a)(2) cannot be.interpreted to apply to conduct occurring prior to his employment with the District. In particular, Toney analogizes to AS 14.20.030, which sets forth the grounds under which the Professional Teaching Commission may revoke or suspend a teaching certificate. The language of the statute exactly tracks the language used in AS 14.20.170(a)(2) and provides for the suspension or revocation of a certificate for "immorality, which is defined as the commission of an act which, under the laws of the state, constitutes a crime involving moral turpitude." Toney offers no support whatsoever for his assertion that "[i]t is abundantly clear that once a certificate is validly issued it can be suspended for reasons only that occur after its issuance and not before." For the same reasons discussed above, Toney's argument must fail. . Based on this conclusion, we need not address the District's alternative argument that To-ney's dismissal is supported under AS 14.20.-170(a)(3), which provides for dismissal for "substantial noncompliance with the school laws of the state, the regulations or bylaws of the department, the bylaws of the district, or the written rules of the superintendent." Nor need we address the contention that Toney's failure to inform the District of his relationship with Traci during the application process constituted a material misrepresentation and a breach of the duty of good faith and fair dealing.

10358440

Robert D. REECE, Appellant, v. STATE of Alaska, Appellee

Reece v. State

1994-10-07

No. A-4680

1135

1138

881 P.2d 1135

881

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:51:34.152370+00:00

CAP

Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

Robert D. REECE, Appellant, v. STATE of Alaska, Appellee.

Robert D. REECE, Appellant, v. STATE of Alaska, Appellee. No. A-4680. Court of Appeals of Alaska. Oct. 7, 1994. Rehearing Denied Oct. 28, 1994. Carol A. Brenckle, Kenai, G. Blair McCune, Asst. Public Defender, and John B. Salemi, Public Defender, Anchorage, for appellant. John A. Scukanee, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

2263

14060

OPINION BRYNER, Chief Judge. Robert D. Reece was convicted by a jury of sexual abuse of a minor in the first degree. He appeals, contending that the trial court erred in admitting lay opinion testimony concerning certain characteristics of child sexual abuse victims. Reece also complains that the trial court prejudiced the jury by displaying bias in favor of the victim and that the court erred in excluding exculpatory evidence and in establishing the amount of restitution to be paid by Reece as part of his sentence. We affirm. Reece was convicted for sexually abusing L.E., the eight-year-old daughter of an acquaintance of Reece, B.W. The abuse occurred at Reece's Kenai home in July of 1991, when B.W. left L.E. in Reece's care so that B.W. could travel to Anchorage for medical tests. After spending several days with Reece, L.E. telephoned her mother (who had not yet left for Anchorage) and asked to come home, complaining that Reece had done something to her "that wasn't right." When L.E. returned home, she told B.W. that Reece had molested her by inserting his finger into her vagina and performing cunnilingus on her. A medical examination of L.E. yielded findings consistent with, but not conclusive of, recent sexual penetration. Alaska State Trooper Michael J. Gomez interviewed L.E., who reported at least five instances of sexual contact by Reece that occurred during her stay with him. The conduct described by L.E. included digital penetration, cunnilingus, and masturbation. Gomez later interviewed Reece. Reece denied sexually abusing L.E. and suggested that L.E.'s report might have been prompted by her inadvertent exposure to an adult videotape that he had at his house during her visit. According to Reece, the tape portrayed explicit sexual acts similar to those described by L.E. Reece later gave Gomez a videotape, claiming that it was a copy of the tape to which L.E. had been exposed. Reece was tried before a jury presided over by Superior Court Judge Jonathan H. Link. At trial, L.E.'s description of Reece's sexual abuse differed somewhat from her earlier accounts. L.E. did not recall five instances of sexual contact; although she testified that Reece had penetrated her with his finger, she was equivocal as to whether he had engaged in cunnilingus. After L.E. testified, the state called Trooper Gomez to the stand to describe his interviews with L.E. and Reece. Over Reece's objection, the court allowed Gomez to testify about the phenomenon of "minimization." Based on his experience investigating sexual abuse cases, Gomez testified that children victimized by sexual abuse "always minimize the extent of what really took place whenever they're being interviewed_ [Tjhey feel so low, their esteem is so down, that they're ashamed that this happened to them, so they minimize whatever happens." According to Gomez, "it's not unusual at all for them to play down what really happened. A lot of times they don't even want to talk about it." Gomez went on to state his opinion that L.E.'s conduct was consistent with what he had seen before in his investigations. In arguing its case to the jury, the prosecution attributed the inconsistencies between L.E.'s trial testimony and her more detailed prior statements to minimization. On appeal, Reece argues that Judge Link erred in allowing Gomez to testify about minimization and to state his opinion that L.E.'s conduct was consistent with the conduct of other sexual abuse victims. Reece maintains that this testimony amounted to impermissible "vouching" for L.E.'s credibility. Our previous opinions have held that testimony concerning behavioral or psychological characteristics of sexual abuse victims is admissible only in limited circumstances. We have found such testimony proper when it is offered for the narrow purpose of "negating] a claim or inference that the complaining witness' behavior in a given case was inconsistent with a truthful accusation of sexual abuse." Bostic v. State, 772 P.2d 1089, 1096 (Alaska App.1989), rev'd on other grounds, 805 P.2d 344 (Alaska 1991). By contrast, we have ruled such testimony inadmissible when it is used affirmatively, to establish that an alleged victim is in fact a victim — that a particular individual's claim of abuse is truth ful because it is in some characteristic way "consistent" with typical reports of abuse. "[Our] decisions do not permit testimony offered to prove that the complaining witness is sexually abused by showing that the complaining witness exhibits behavior similar to that exhibited by sexually abused children." Haakenson v. State, 760 P.2d 1030, 1036 (Alaska App.1988). See also Cox v. State, 805 P.2d 374, 377 (Alaska App.1991); Nelson v. State, 782 P.2d 290, 298 (Alaska App.1989); Anderson v. State, 749 P.2d 369, 373 (Alaska App.1988). In the present case, the form of Gomez' testimony concerning "minimization" was arguably improper. Gomez' testimony was not confined to the limited issue of whether L.E.'s inconsistencies and minimization were incompatible with a truthful claim of abuse. Instead, the court expressly ruled that Gomez could state his affirmative view that L.E.'s conduct conformed to typical conduct for a sexual abuse victim. In keeping with the scope of the court's ruling, Gomez, after describing the phenomenon of minimization, did in fact state his opinion that L.E.'s conduct was consistent with what he had seen before in his investigations. The danger of this testimony is its tendency to suggest, not merely that minimization is common among sexual abuse victims — or, in Gomez' words, that sexual abuse victims "always minimize the extent of what really took place" — but that it is unique to sexual abuse victims. If interpreted in this manner, Gomez' testimony would have encouraged the jury to reason that, since minimization is characteristic behavior for a sexual abuse victim, and since L.E. engaged in minimization, L.E. must have been the victim of sexual abuse, and her claim of sexual abuse was therefore probably truthful. To the extent that Gomez' testimony portrayed L.E.'s minimization of events as affirmative evidence of her truthfulness in this way, it was problematic. Indeed, Judge Link himself recognized this problem. At the conclusion of Reece's trial, when the jury began its deliberations, Judge Link evidently undertook a review of recent case law and reassessed his earlier decision allowing Gomez to testify about minimization. The judge ultimately concluded that Gomez should not have been permitted to state his opinion that L.E.'s minimization was consistent with behavior typically encountered in other sexual abuse victims. Nevertheless, upon carefully considering the circumstance of Reece's case, the judge further concluded that the error in admitting this evidence was not substantially prejudicial and did not warrant a mistrial. Our review of the record convinces us that Judge Link did not abuse his discretion in determining that the prejudice to Reece was minimal. Here, as noted by the trial court, Gomez made it clear that his opinion was simply based on his experience in investigating sexual abuse cases. Gomez was not presented as an expert in the identification of sexual abuse victims and did not pretend to any such expertise. Immediately after Gomez completed his testimony on direct examination, the court gave the jury an appropriate cautionary instruction. Moreover, although Gomez testified that sexual abuse victims commonly engaged in minimization, he did not characterize minimization as a unique characteristic that made it possible to distinguish between true and false claims of abuse. To the contrary, Gomez candidly acknowledged, "I don't think there is one expert in this world that could tell whether or not a young child is telling the truth or not." The danger of prejudice was further reduced by the manner in which the state argued Gomez' testimony to the jury. At no point did the state urge the jury to find that L.E.'s minimization was affirmative proof of her status as a victim or of the truthfulness of her claim. Instead, the state relied on the evidence of minimization for the more limited, and proper, purpose of rebutting Reece's claim that L.E.'s inconsistent and incomplete testimony was indicative of fabrication. To the extent Gomez' testimony concerning L.E.'s minimization was improper, we conclude that there is no reasonable likelihood that its admission had any appreciable effect on the jury's verdict. Accordingly, we find no reversible error. Love v. State, 457 P.2d 622, 631 (Alaska 1969). Reece's remaining issues require only brief mention. Reece complains that the trial court prejudiced the jury by displaying bias in favor of the victim and by commenting negatively on the case presented by the defense. However, Reece failed to object or otherwise call his complaints to the attention of the trial court. Our review of the record convinces us that there is no plain error. Reece also complains that the trial court erred in excluding evidence of his offer to take a polygraph examination and in refusing to allow admission of the videotape he gave to Trooper Gomez. The trial court did not err in finding Reece's offer to take the polygraph to be inadmissible. Haakenson, 760 P.2d at 1034-35; Leonard v. State, 655 P.2d 766, 771 (Alaska App.1982). Nor did the court err in excluding the videotape on foundational grounds. Finally, Reece challenges the trial court's restitution award. Our review of the record, however, convinces us that the court did not abuse its discretion in requiring Reece to reimburse B.W. for partial moving expenses. The record supports the court's conclusion that B.W.'s decision to move was prompted by the sexual abuse for which Reece was convicted and that the location B.W. chose for a new residence was reasonable. See, e.g., State v. Brady, 169 Ariz. 447, 819 P.2d 1033, 1034 (App.1991); Strough v. State, 501 So.2d 488, 490-91 (Ala.Crim.App. 1986). We are further convinced that the trial court did not abuse its discretion in ordering Reece to compensate L.E. for future costs of counseling. Although Lawrence v. State, 764 P.2d 318, 322 (Alaska App.1988), disapproved an award for future counseling expenses that was made in the absence of evidence firmly establishing the need for and amount of such expenses, here, L.E.'s future counseling needs and the approximate cost thereof were adequately established in the sentencing record. The judgment is AFFIRMED. . As we said in Anderson, 749 P.2d at 373: [W]e have never authorized expert testimony seeking to establish that a person is a member of a particular class or group, i.e., battered women or sexually abused children, by showing that they exhibit behavioral characteristics common to that group_ [B]efore such testimony is admitted, the proponent should establish, in a hearing out of the presence of the jury, that the probative value of the testimony outweighs its possible prejudicial effect. See, e.g., Alaska Evidence Rule 403. The supreme court has suggested that in cases such as this, compliance with A.R.E. 403 should be virtually the equivalent of compliance with the Frye rule. . The prosecutor argued, in relevant part: [L.E.'s] testimony on the stand, as you recall, was somewhat guarded because of what Trooper — the Troopers indicated that the . reluctance of a child, sexual abuse victims, to testify, to bring this out, the minimization, the guilt that they feel. Trooper Gomez explained, during the course of his experience, his years of investigation in matters such as this, that's not something that's unusual. That's something, rather, that is probably normal, where a child as young as [L.E.] to have to do; to face up to the adults, including her relatives, including a doctor, including even a social worker and a — an Alaska State Trooper, and relate to them what had occurred. . Reece has separately argued that, because Gomez was not formally qualified as an expert under A.R.E. 702, Gomez should not have been allowed to state any opinion whatsoever concerning L.E.'s minimization. However, to the extent Gomez' testimony was used for the limited purpose of rebutting the negative inference of fabrication relied on by Reece, Gomez' experience with sexual abuse investigations was plainly sufficient to allow him to testify as a lay witness, under A.R.E. 701, that L.E.'s minimization was not inconsistent with a truthful claim of abuse. Cf Shepard v. State, 847 P.2d 75, 81 (Alaska App.1993) ("psychological evidence whose purpose is merely to establish that certain testimony is not necessarily untruthful . [is admissible] because the more modest aim of psychological testimony in such cases is to assist the jury in reaching its own interpretation of the evidence"). We note that, in addition to allowing Gomez to express his opinion on minimization, the trial court also permitted him to describe the process of "grooming" by sexual abusers of their victims. Gomez briefly described the "grooming" process in his testimony but expressed no opinion as to whether any conduct by Reece amounted to grooming. On appeal, Reece has not separately argued that this aspect of Gomez' testimony amounted to reversible error. Given the brevity of Gomez' testimony on the issue and its common sense nature, we find no plain error. .In any event, since L.E. admitted viewing portions of an adult videotape at Reece's home that depicted sexual conduct similar to the conduct she had reported, exclusion of the videotape resulted in no apparent prejudice to Reece.

10408717

Phillip Paul WEIDNER and Drathman & Weidner, a Professional Corporation, Appellants, v. SUPERIOR COURT for the State of Alaska, THIRD JUDICIAL DISTRICT, Appellee

Weidner v. Superior Court for the State, Third Judicial District

1986-02-28

No. A-237

264

269

715 P.2d 264

715

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:57:04.599082+00:00

CAP

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

Phillip Paul WEIDNER and Drathman & Weidner, a Professional Corporation, Appellants, v. SUPERIOR COURT for the State of Alaska, THIRD JUDICIAL DISTRICT, Appellee.

Phillip Paul WEIDNER and Drathman & Weidner, a Professional Corporation, Appellants, v. SUPERIOR COURT for the State of Alaska, THIRD JUDICIAL DISTRICT, Appellee. No. A-237. Court of Appeals of Alaska. Feb. 28, 1986. Phillip Paul Weidner, Drathman & Weid-ner, and William P. Bryson, Anchorage, for appellants. Cynthia M. Hora, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

3279

20060

OPINION SINGLETON, Judge. Phillip Weidner and Drathman & Weid-ner, a professional corporation (hereafter "Weidner"), appeal the imposition of $1,150 in attorney fees and sanctions levied against them in the case of State v. Main, 3ANS-82-8254 Cr. The record reflects that Mr. Weidner was assessed $400 in sanctions for violating several disciplinary rules and Rules of Court, and $750 in attorney's fees to be paid to the Department of Law for allegedly filing frivolous, unnecessary, and legally deficient pleadings. The state concedes that no hearing was ever held on the issue of sanctions, although Mr. Weidner requested a hearing and was promised a hearing by the trial court. Since Mr. Weidner was clearly entitled to a hearing under Alaska Rule of Civil Procedure 95(b), it is necessary that "we remand the case to the trial court for a hearing. We, nevertheless, address a number of issues raised by the parties in order to avoid uncertainty on remand. PACTS In November 1982 the state charged Joseph Main with four counts of sexually abusing his eleven-year-old niece. Mr. Main retained Mr. Weidner and the firm of Drathman & Weidner to represent him. An omnibus hearing in Main's case was scheduled for January 31, 1983. At the hearing, Mr. Weidner was granted a ten-day extension of time in which to file his pretrial motions. Weidner filed twenty-seven pretrial motions, on February 7, seven days later, and within the time limits established by Judge Buckalew. On February 18, 1983, the prosecutor moved to strike fifteen of the twenty-seven motions. She responded to the other twelve motions. She also moved for sanctions and attorney's fees pursuant to Alaska Rules of Civil Procedure 11, 77(1), and 95, alleging "violations of the rules of procedure and Code of Professional Responsibility reflected in the pretrial motions he [Weidner] filed with this court." An omnibus hearing was held on February 23, 1983, before Judge Moody. At the hearing, Weidner asked that a ruling on the prosecutor's motion for sanctions be delayed until after Main's trial. Judge Moody agreed to wait until the end of the case to impose sanctions, after a hearing, but made it clear that he had already decided to impose sanctions "because of the noncompliance with the rule." Weidner subsequently filed eleven more pretrial motions. In addition, he filed two motions apparently seeking reconsideration of motions previously denied. All of Weid-ner's motions were ultimately denied, with the exception of two: a motion to permit independent transcription and analysis of tapes and a motion for discovery under Alaska Rule of Criminal Procedure 16. Joseph Main's trial was held before Judge Victor D. Carlson. Main was found guilty of attempted rape on April 7, 1983. On July 26, 1983, Judge Moody signed a six-page order sanctioning Weidner for his pretrial motion practice. No hearing was ever held on the issue of sanctions. This appeal followed. DISCUSSION Alaska Rule of Criminal Procedure 50 provides in relevant part: (b) Civil Rules to Apply. All other provisions of the Rules of Civil Procedure relating to attorneys, regarding applications to the court, stipulations examining witnesses, counsel as a witness, arguments on motions or hearings, nonresident attorneys, and disbarment and discipline, shall apply to practice in criminal actions in the courts of the state. The supreme court has construed this rule to make civil rules governing motion practice and, specifically, Civil Rule 77, applicable in criminal proceedings. See Padie v. State, 566 P.2d 1024 (Alaska 1977); State v. Johnson, 525 P.2d 532 (Alaska 1974). The court has also held that Civil Rule 95(b) is applicable in criminal cases. See Davis v. Superior Court, 580 P.2d 1176, 1178-79 (Alaska 1978); Esch v. Superior Court, 577 P.2d 1039, 1043 (Alaska 1978). Civil Rule 95(b) sets forth the trial court's power to assess penalties against an attorney: In addition to its authority under (a) of this rule [to assess costs and attorney fees for infractions of the rules] and its power to punish for contempt, a court may, after reasonable notice and opportunity to show cause to the contrary, and after hearing by the court, if requested, impose a fine not to exceed $500.00 against any attorney who practices before it for failure to comply with these rules or any rules promulgated by the supreme court. In Davis, the court specifically applied this rule to failure by an attorney to be prepared at an omnibus hearing, and held that the trial court, pursuant to Civil Rule 95(b), may impose a fine for an attorney's violation of the "disciplinary rules applicable to attorneys." 580 P.2d at 1179. The supreme court has also indicated that sanctions are appropriate where an attorney is inadequately prepared to argue the law or present factual contentions to the trial court in connection with motion practice. See State v. Johnson, 525 P.2d 532, 535 n. 5 (Alaska 1974).' While the state has charged Mr. Weidner with numerous derelictions, it appears that the state's primary complaint is that Mr. Weidner did not support each motion he filed with a legal memorandum discussing controlling authority, and failed to file affidavits with the motions which set out factual assertions made under oath that supported the various contentions upon which the motions were predicated. In this regard, we note Disciplinary Rule 7-106(B)(l) which states: (B) In presenting a matter to a tribunal, a lawyer shall disclose: (1)Legal authority in the controlling jurisdiction known to him to be directly adverse to the position of his client and which is not disclosed by opposing counsel. Alaska Code of Professional Responsibility, DR 7-106(B)(l). More to the point is Civil Rule 77 which provides in relevant part: (b) There shall be served and filed with the motion: (1) Legible copies of all photographs, affidavits and other documentary evidence which the moving party intends to submit in support of his motion; (2) A brief, complete written statement of the reasons in support of the motion, which shall include a memorandum of the points and authorities upon which the moving party will rely; and (3)An appropriate order for the court's signature in the event that the motion is granted. Before proceeding to the legal issues which must be resolved before this case is remanded, it is necessary to point out a certain ambiguity in the rules governing motion practice in criminal cases. When we view the Alaska Rules of Criminal Procedure in their totality, we see two, and possibly three, slightly conflicting approaches to the processing of criminal motions. The most formal procedure is required by Civil Rule 77 which the trial court relied on in this case for imposition of sanctions. We note, however, that Criminal Rule 42 also appears to address motion practice and suggests a slightly more informal approach. Rule 42 provides: An application to the court for an order shall be by motion. A motion other than one made during a trial or hearing shall be in writing unless the court permits it to be made orally. It shall state the grounds upon which it is made and shall set forth the relief or order sought. It may be supported by affidavit. This rule is identical to Federal Rule of Criminal Procedure 47. In discussing the latter, a commentator has noted that this rule sets out the general minimum requirements for all motions. 3A C. Wright, Federal Practice and Procedure: Criminal § 801 at 191 (2d ed. 1982). In this regard, Wright points out that while some districts, by local rule, require that a motion be supported by a memorandum of law, Rule 47 does not. And by the same token, while Rule 47 permits affidavits to be provided with a motion, it does not require them. The provision of the rule concerning affidavits is permissive only. The court has inherent power to require that the supporting affidavits be filed, but in the absence of a court order, or a local rule requiring affidavits, it is not required that affidavits be submitted. [Footnotes omitted] Id. § 802 at 192. An even less formal procedure for processing criminal motions is suggested by Alaska R.Crim.P. 16, which comes from the ABA Standards Relating to Discovery and Procedure Before Trial, § 5.3 (Approved Draft 1970). The commentary to the ABA standards makes it clear that the omnibus hearing is viewed as a screening hearing at which defendants and their counsel are urged to raise motions without prior notice in the belief that the "[ijssues are usually sufficiently typical as to be capable of oral presentation and on-the-spot disposition. Where an evidentiary hearing or formal matter is needed, the hearing can be continued as a matter of course for such purposes." M.§ 5.3 commentary at 118. It should be noted that the ABA Standards differ from Rule 16 in specifically requiring the presiding officer at the omnibus hearing to utilize a checklist and independently inquire of the prosecutor and defense counsel if they wish to raise typical motions, whether or not they had previously been raised. The commentary points out: Under [these standards], the court should hear and rule on all motions, demurrers and other requests pending. As indicated in subsections (b) and (c) [of Standard 5.3], ordinarily such matters are to be presented orally at the Omnibus Hearing, without any filing or prior notice. The court should also inquire whether either party intends to present any such matter at a later time, and make arrangements accordingly. As subsection (a)(iv) makes clear that the court should hear and decide questions raised by counsel, subsection (a)(v) directs the court to inquire whether there are other questions which are ripe for consideration at that time. It is in conjunction with this subsection that the check-list form, discussed above, should prove invaluable. Id. commentary at 119-20. The provision requiring a checklist and the complimentary provisions providing for waiver of issues not raised are clearly intended to anticipate the defendant's rather broad rights to post-conviction relief and render recourse to those rights unnecessary. Cf Alaska R.Crim.P. 35(c). The commentary makes it clear that the omnibus hearing gives the defendant a fair hearing and an opportunity for a decision, at an appropriate time, regarding his constitutional and other claims. Thus, by requiring trial courts to ferret out issues, it is hoped that the number of applications for post-conviction relief will be substantially reduced. Accordingly, the procedure has been designed to minimize the number of instances in which the defendant will be unaware of the grounds for making his motions by the time of the Omnibus Hearing and, through the use of the check-list forms, to make it a matter of record that he has been afforded the opportunity, let alone prompted, to make them. In the judgment of the Advisory Committee this should suffice to make the consequence of waiver valid, as well as be an effective pressure upon the defense to make its challenges in the manner contemplated by section 5.3. Standards Relating to Discovery and Pretrial Procedure, § 5.3 commentary at 121. In this regard, the standards point out: Subsection 5.3(a) describes the matters which should be attended to at an Omnibus Hearing. The trial court's initiative is imperative in arranging the hearing and fulfilling its functions. The use of "an appropriate check-list form" is required so that the hearing is orderly, expeditious, and fair. The form should materially assist the court and counsel in ensuring that consideration is given those issues which, when ignored, typically form the basis for subsequent invalidation of an adjudication of guilt [whether through conviction or plea of guilty]. With the use of such a form, the need for the usual variety of motion papers with supporting affidavits and briefs is obviated — papers which consume such an inordinate amount of time in their preparation, filing, giving of notice, docketing and reading and which often merely repeat arguments already familiar to the court and counsel or fact situations which need only be sketched to apprise court and counsel of their implications. Id. commentary at 117-18. In summary, the formal procedures permitted by Criminal Rule 42, and required by Civil Rule 77, and the informal procedures contemplated by Criminal Rule 16, present alternatives which might confuse a responsible attorney seeking to represent his or her client in conformity with the rules. The conflict is best resolved by recognizing that the Alaska Supreme Court has delegated to the trial courts substantial flexibility in managing their own calendars and establishing procedures for resolving criminal motions within their own jurisdictions. Those courts which wish to utilize formal procedures requiring written motions, supporting affidavits, and memoran-da of law, have authority in the rules to require it. By the same token, those courts which would prefer the less formal procedures contemplated in the ABA standards also find support in the rules for such procedures. It is imperative, however, given the uncertainty and ambiguity in the rules, that whichever decision a trial court makes, it communicates that decision in a timely manner to all counsel and parties likely to appear before it so that the procedure to be utilized, can be followed consistently. Certainly, an appropriate pretrial order would serve this function. It is also possible that an attorney who has appeared before a certain judge on a number of occasions and has learned the procedures that judge customarily follows, could be held to have had notice of the required procedures. But, in the absence of adequate notice established by the record, we will carefully review the imposition of any sanctions for failure to comply with established procedures. We now proceed to address specific questions presented by this appeal. Mr. Weidner argues that he is entitled to notice of the charges against him. We agree. Alaska Rule of Civil Procedure 95(b) authorizes imposition of a fine only "after reasonable notice and an opportunity to show cause to the contrary...." The notice must set forth the reasons for imposition of any potential fine, although the particular rule under which the court's authority was invoked and the rules alleged to have been violated need not be specified. Davis, 580 P.2d at 1180. We stress, however, that the notice must be sufficient to acquaint counsel with the nature of the alleged infraction or infractions. In most of the cases which the supreme court has considered, counsel was charged with a single infraction and the rules allegedly violated were obvious. Where counsel is charged with numerous infractions under a variety of rules, the better practice would be to specify with particularity the counsel's offense and give some indication of the rules allegedly violated. Mr. Weidner also argues that he is entitled to discovery and that the Rules of Evidence apply at the hearing. The notice requirements of Rule 95(b), in conjunction with any affidavits filed by the prosecution, should sufficiently alert Mr. Weidner to the issues in controversy to enable him to prepare his defense. Formal discovery is not necessary. Since the matter is not one of "summary contempt," it would appear that the Rules of Evidence might apply. See Alaska Rule of Evidence 101(c)(2). We leave this issue for briefing and argument in the court below. Mr. Weidner next argues that he is entitled to a jury trial. He is in error. Since this matter is being prosecuted under Civil Rule 95(a) (costs and attorney's fees) and Civil Rule 95(b) (which provides a maximum fine of $500 for rule infractions), there is no right to a jury trial. See Wood v. Superior Court, 690 P.2d 1225, 1233 (Alaska 1984). Mr. Weidner argues that he is entitled to a change of judge as a matter of right. See, e.g., Alaska R.Civ.P. 42(c); Alaska R.Crim.P. 25(d). We disagree. An imposition of sanctions under Civil Rule 95(a) and (b) is simply a means of enforcing orders and court rules in the underlying civil or criminal litigation. In this case, the sanction issue is ancillary to State v. Main. Just as an individual cited for criminal contempt in connection with the enforcement of orders at an ongoing proceeding is not entitled to a new peremptory challenge of the trial judge, a person faced with sanctions under Civil Rule 95(a) and (b) is not entitled to a peremptory challenge. See, e.g., Esch v. Superior Court, 577 P.2d 1039, 1042 (Alaska 1978); Continental Insurance Cos. v. Bayless & Roberts, Inc., 548 P.2d 398, 406 (Alaska 1976); Webber v. Webber, 706 P.2d 329 (Alaska App.1985). See also Weaver v. Superior Court, 572 P.2d 425, 430-31 (Alaska 1977). The unavailability of a peremptory challenge does not leave a litigant faced with criminal contempt or civil penalties without a remedy where, in fact, the totality of the circumstances establishes that the trial judge is prejudiced against him. In such cases, he or she has a right to challenge the trial judge for cause. Cause exists if the trial court, by its actions, indicates "personal rancor" toward the counsel accused of misconduct. The record reflects, however, that Mr. Weidner has never interposed a challenge for cause against any judge in this case. Should such a challenge be interposed, we assume it would be decided in conformity with AS 22.20.020. Finally, Mr. Weidner argues that he cannot effectively mount a defense to the charges of misconduct levied by the state while Mr. Main's conviction is pending on appeal. At oral argument, counsel for Mr. Weidner conceded that this issue could not be resolved by adoption of a general rule. In defense counsel's view, the issue really comes down to whether the judge ultimately assigned to hear this case should grant a continuance. We agree. On remand, the parties will be able to argue their respective positions regarding the appropriate timing for further proceedings in this case. Given the multiplicity of charges involved here, it is possible that some might be heard immediately without prejudice to any party, while others might warrant a postponement. As an alternative to a continuance, there is nothing in this record that would preclude the trial court from permitting Mr. Weidner, if necessary, to present evidence regarding the sanctions in camera. Ultimately, the matter is one committed to the sound discretion of the trial court. The order imposing sanctions is VACATED and this ease is REMANDED to the superior court for further proceedings consistent with this opinion. . See Alaska R.Civ.P. 11 (the signature of an attorney on a pleading constitutes a certificate that he or she has read the pleading, that to the best of the attorney's knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay). See also Alaska R.Civ.P. 7(b)(2) (making rule 11 applicable to motions). . The pretrial orders which we are recommending would be issued in individual cases, by the assigned judge, to govern motion practice in that case. The supreme court recently promulgated a new Administrative Rule 46 relating to "Special Judicial Administrative Orders." Violations of Special Judicial Administrative Orders may not be sanctioned under Civil Rule 95. We see no conflict between the procedure we recommend and the concerns addressed in the new administrative rule. . Alaska Statute 22.20.020 pertains to disqualification of a judicial officer for cause.

10418905

Jeffrey C. WILKIE, Appellant, v. STATE of Alaska, Appellee

Wilkie v. State

1986-03-21

No. A-746

1199

1205

715 P.2d 1199

715

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:57:04.599082+00:00

CAP

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

Jeffrey C. WILKIE, Appellant, v. STATE of Alaska, Appellee.

Jeffrey C. WILKIE, Appellant, v. STATE of Alaska, Appellee. No. A-746. Court of Appeals of Alaska. March 21, 1986. Jeffrey M. Feldman, Gilmore & Feldman, Anchorage, for appellant. James V. Gould, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Harold M. Brown, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

3092

19215

OPINION COATS, Judge. Jeffrey C. Wilkie was convicted, following a jury trial, of sexual assault in the first degree, AS 11.41.410(a)(1). He appeals to this court raising several issues. FACTS On October 1, 1983, S.C. left her residence in Eagle River at approximately 4:00 a.m. She worked the early morning shift at Anchorage International Airport for one of the airlines. Her shift began at 5:00 a.m., and she arrived at the employee parking lot at about 4:50-55 a.m. She opened her car door, then, seeing that someone was coming between her car and the adjacent car, started to close her door to allow him to pass. The man approaching did not pass; rather, he opened the door, told S.C. to move over, and said that he had a gun. S.C. complied, and the man entered the car and had intercourse with S.C. S.C. stated that the incident lasted "not more than ten minutes." Moments after the assailant departed, Douglas Hansen, another airport employee, heard S.C. screaming for help and screaming that she had just been raped. Hansen spotted a man walking, then running, towards the international terminal of the airport. Both the man Hansen saw and the man described by S.C. were alleged to be wearing a dark-colored vest. Hansen determined that he could not catch the man, so he ran to the domestic terminal and reported the incident to police. The incident was recorded on police records at exactly 4:57 a.m. The police responded immediately, calling in Officer Robert W. Jones and his dog Kai. Kai was placed next to the driver's side of S.C.'s vehicle to begin tracking. Kai began travelling towards the domestic terminal. Officer Jones stopped Kai and took him back to the driver's side of the car. This time Kai went to the back of the vehicle and signaled an alert. Again Jones started Kai, this time Kai started towards the international terminal. Jones encouraged Kai by shouting "good boy." Before reaching the international terminal, Kai abruptly turned and circled a red pickup truck. Jones determined that no one was in the truck and returned with Kai to his original track. Kai then went straight to the international terminal, entered, went to the Japan Airlines counter and jumped up on the counter. Seconds later, Jeffrey Wilkie, who was on the phone "popped up" from behind the counter. Other police officers were contacted, and Wilkie was arrested. Wilkie's general appearance and clothing matched the description that S.C. had given to the police. However, S.C. was unable to identify Wilkie in a lineup, and, in an earlier photo montage of airport employees, picked out the picture of another person as possibly being the person who assaulted her. In addition, Wilkie presented evidence from alibi witnesses that at approximately the time of the sexual assault they saw Wilkie working near the terminal. At trial, conflicting testimony was presented about physical evidence relating to the rape. An F.B.I. expert witness testified that he found hair identical to S.C.'s hair on clothing the police had seized from Wilkie. However, an expert witness who testified for Wilkie disputed this evidence and stated that the hair was Wilkie's own. An F.B.I. serology expert testified that semen stains, which were found on S.C.'s clothing, could have originated from Wilk-ie, but the expert admitted that approximately thirty-six percent of the male population of the United States were in the blood group from which the stain could have originated. A defense expert, Gary Harmor, testified that the semen stain could not have originated from Wilkie's subgrouping. After hearing the evidence, the jury convicted Wilkie of sexual assault in the first degree. Wilkie now appeals to this court. We affirm. GRAND JURY ISSUES Wilkie argues that the trial court erred in refusing to dismiss the grand jury indictment against him based on several alleged errors. K.W. Information At the grand jury proceedings, S.C. testified about her attempts to identify her assailant. S.C. testified that she was shown pictures of people who worked at the airport and that she had seen one picture that "scared her." S.C. stated that she brought the picture to the attention of the police as possibly being the picture of the person who assaulted her, although she was not sure of the identification. The photograph which S.C. identified was not of Wilkie, but of K.W., another person who worked at the airport. Later in the grand jury proceedings, a grand juror asked a police officer who had conducted part of the airport investigation, whether K.W. had been working that day. The prosecutor refused to allow the officer to respond to the grand juror's question on the basis that the response would be hearsay. Wilkie argues that it was error for the prosecutor not to allow the officer to respond and that the failure to produce further evidence concerning K.W.'s whereabouts constituted a failure to produce exculpatory evidence. See Alaska R.Crim.P. 6(q). The state, pursuant to Criminal Rule 6(q), has an affirmative duty to present exculpatory evidence to the grand jury, so that the grand jury may properly perform its function of protecting the innocent from unjust prosecution. See Frink v. State, 597 P.2d 154, 164-65 (Alaska 1979) (quoting State v. Gieffels, 554 P.2d 460, 464 (Alaska 1976)). However, the duty to present exculpatory evidence imposes only an obligation to present evidence known to the prosecutor which tends to negate guilt. Id.; see also ABA Standards Relating to the Prosecution Function and Defense Function § 3.6(b) (Approved Draft 1971). In the present case, testimony at trial made it highly unlikely that K.W. was anywhere but at home during the time in question. It does not, therefore, appear that the additional evidence that the grand juror requested would have been exculpatory. Furthermore, the prosecutor demonstrated her willingness to answer the grand juror's question by calling additional witnesses, but the grand jury requested deliberations instead, returning a true bill. We find no error. Lack of Lineup Testimony The prosecution did not conduct a lineup to see if S.C. could identify Wilkie until after the grand jury proceedings. One of the grand jurors asked why no lineup had been conducted. The prosecutor responded that the reason why no lineup had been conducted was not relevant and told the grand jury to consider only the evidence presented. Wilkie argues that the indictment should have been dismissed because of the prosecutor's response. We disagree. The evidence presented to the grand jury made it clear that S.C. had not identified Wilkie as the person who assaulted her and that she had picked out the photograph of K.W. as a suspect. Hence, all exculpatory evidence regarding identification was reasonably and fairly presented. See Frink, 597 P.2d at 166. We see no evidence of bad faith in the failure of the prosecution to conduct a lineup prior to the grand jury proceedings. On this record, we do not believe that the indictment should have been dismissed because the prosecutor told the grand jury that the reason why no lineup had been conducted was irrelevant. Times on Chart Several airport employees who worked with Wilkie testified regarding where and when Wilkie had been seen at work. Carl Burford testified that he saw Wilkie load a China Airlines jet at 4:40 — 4:45 a.m. and that Wilkie was present when the China Airlines jet departed. It is undisputed that the China Airlines plane backed out at 4:50 a.m. Since the sexual assault of S.C. was reported at 4:57 a.m., Burford's testimony tended to establish an alibi for Wilkie. The prosecutor wrote down the times of events concerning the rape on a chart. The prosecutor included the time that Wilkie loaded the jet (4:40-4:45) on the chart but did not write down the time that Wilkie was seen watching the jet depart (4:50). Wilkie argues that the prosecutor thus misled the grand jury and that the trial court was therefore required to dismiss the indictment. Where an inaccuracy in the evidence presented to the grand jury occurs, the indictment must be dismissed only where the inaccuracy is material. Keith v. State, 612 P.2d 977, 980-981 (Alaska 1980). We find the present case analogous to what transpired in Doisher v. State, 632 P.2d 242, 251 (Alaska App.1981) rev'd on other grounds, 658 P.2d 119 (Alaska 1983). In Doisher, accurate evidence was presented to the grand jury. However, in her summation, the prosecutor misstated the evidence without any apparent bad faith. Id. As in Doisher, the prosecutor here presented the evidence which tended to prove Wilkie's alibi but did not include it on the chart, without any apparent bad faith. We find the prosecutor's apparently inadvertent omission of the time from her chart immaterial and insufficient to mandate reversal. Wilkie also argues that the indictment should have been dismissed because of cumulative error. We disagree that the alleged errors, considered as a whole, required the trial court to dismiss the indictment. TRACKING DOG EVIDENCE Wilkie argues that the trial court erred in admitting evidence that Kai, a German Shepherd police dog, tracked Wilkie from the crime scene to the counter at the international terminal. First, Wilkie argues that dog tracking evidence should never be admitted into evidence. Second, he argues that if dog tracking evidence may be admitted, there was an insufficient foundation to admit the evidence in this case. The question of whether to admit evidence that a dog tracked a particular suspect is a case of first impression in Alaska. There is a split of authority in other jurisdictions whether to admit this kind of evidence. However, the large majority of jurisdictions appear to admit this evidence if a proper foundation has been established. See Annot., 18 A.L.R.3d 1221 (1968). The rationale for excluding dog tracking evidence was summarized in Cook v. State, 374 A.2d 264, 270 (Del.1977): Generally speaking, the minority rule is based upon: (1) the unreliability of the dog's motivation; (2) the inability to cross-examine the dog; (3) the hearsay testimony of the handler; and (4) the undue prejudice such evidence has upon the jury. In Cook, the Supreme Court of Delaware found this reasoning unpersuasive. We agree with the Delaware court that the proper question is whether a sufficient foundation has been laid to establish the reliability of the dog tracking evidence. The Cook court set out the following factors as foundational prerequisites for admission of dog tracking testimony: (1) the experience and qualifications of the dog's handler; (2) the dog's experience, skill, training, and reputation as a tracker; and (3) the circumstances pertaining to the trailing itself. Id. We concur that if these factors have been adequately established, tracking dog evidence should be admissible. The fact that dogs can track people seems to be adequately established and is admissible in a large majority of jurisdictions. To the extent there are questions about this kind of evidence, the parties to a particular case can rely on expert witnesses to aid the jury in determining the weight to give such testimony. We have confidence in the jury's ability to critically evaluate this kind of evidence and to give it proper weight. Wilkie argues that the state did not establish a sufficient foundation for the admission of the dog tracking testimony. However, the state presented testimony .by the officer who handled Kai about Kai's training and experience. Officer R.W. Jones testified that Kai had been trained in Germany for two and one-half years for tracking, obedience, and handler protection. He testified to personally working with Kai for six weeks in Connecticut, and testified that a part of that training was in tracking. Officer Jones described his training with Kai and the theories regarding how a dog tracks. He testified that Kai had been used for tracking in actual cases and had tracked suspects. Jones additionally testified about Kai's ability to detect drugs and narrated three video tapes which showed Kai demonstrating his tracking abilities. Jones then explained the circumstances surrounding Kai's tracking of Wilkie on the morning that S.C. was assaulted. We believe that this testimony established a sufficient foundation to admit the evidence suggesting that Kai tracked Wilkie. It appears that there was sufficient evidence that Officer Jones had the experience and the qualifications necessary to testify as an expert dog handler. There was sufficient evidence that Kai had the training and ability to track people. There was also sufficient evidence that the conditions for tracking on the day of the sexual assault were good. We believe that this was a sufficient foundation to admit the evidence that Kai apparently tracked Wilk-ie, and any alleged weakness goes to the weight of the evidence, not its admissibility. POLYGRAPH RESULTS Wilkie contends that the trial court erred in not admitting evidence of two polygraph examinations that were favorable to him. Courts in this state have consistently held that polygraph evidence is inadmissible. See Pulakis v. State, 476 P.2d 474, 479 (Alaska 1970); Leonard v. State, 655 P.2d 766, 767-771 (Alaska App.1982). We see no reason, on this record, to conclude that polygraph testing has reached a level of reliability to allow its admission into evidence. VERIFICATION OF DEFENSE EXPERT The state called a serologist to testify that the semen stain on S.C.'s skirt matched Wilkie's blood type — a blood type common to thirty-six percent of the population. Wilkie called an expert witness, Gary Harmor, who testified that while the state's serologist's conclusions were correct, a further test can be applied whereby blood types can be broken down into sub-parts. Utilizing this test, Harmor concluded that the semen stains did not match Wilkie's blood subpart. Harmor therefore concluded that Wilkie could not have produced the semen stain which was found on S.C.'s skirt. Apparently, to reach the conclusion which he reached, Harmor performed certain tests and, as a result, observed certain enzyme activity. According to Harmor, the presence of this enzyme activity led to the conclusion that the semen stain could not have originated from Wilkie. At trial, Wilkie wanted to have Harmor establish that he was not the only one who observed the critical enzyme activity. Apparently other experts in the laboratory had observed the enzyme activity and agreed with Harmor's observation. However, the state asked for a protective order forbidding this testimony. Judge Buckalew granted the protective order, refusing to allow the testimony on hearsay grounds. On cross-examination of Harmor, the state established that Harmor's testimony was based upon his observations and that it was theoretically possible that another expert 'might look at the same test and reach a different conclusion. Following cross-examination, Wilkie contended that the state's cross-examination had opened the door to evidence that Harmor's observations had been confirmed by other people in the laboratory and that • the protective order should be quashed. Judge Buckalew again refused to allow Wilkie to present the testimony. On appeal, Wilkie contends that the refusal to allow this testimony was error. Harmor's testimony, that other experts in his laboratory had observed his results and concurred, could be admitted for a legitimate non-hearsay purpose to demonstrate the laboratory procedures followed and to show that the tests were conducted carefully. However, there was also an obvious danger that the fact that other experts had apparently confirmed Harmor's results would be used to establish that, had they been called, the other experts would have testified in the same manner as Harmor. This would have essentially allowed the defense to appear to be presenting the testimony of these other experts without subjecting them to cross-examination. Thus, the trial judge could properly determine that this testimony was hearsay and could properly exclude it. We do not believe that the trial court judge abused his discretion in refusing to initially allow this testimony. The question of whether the trial judge should have allowed this testimony following the state's cross-examination presents a closer question. However, on balance we do not believe that the state's suggestion, that Harmor's observations were to some extent subjective or that it was possible that another expert might not agree with Harmor's observations, required the trial judge to rule that Harmor could testify that other people in his laboratory had apparently agreed with his opinion concerning the enzyme activity. We find that Judge Buckalew acted within his discretion in refusing to allow Harmor's colleague's observations. The conviction is AFFIRMED. . Alaska Rule of Criminal Procedure 6(q) reads: Sufficiency of Evidence. When the grand jury has reason to believe that other available evidence will explain away the charge, it shall order such evidence to be produced and for that purpose may require the prosecuting attorney to subpoena witnesses. An indictment shall not be found nor a presentment made upon the statement of a grand juror unless such grand juror is sworn and examined as a witness. The grand jury shall find an indictment when all the evidence taken together, if unexplained or contradicted, would warrant a conviction of the defendant. . Wilkie points out that Officer Jones did not describe any of the tracking which took place, or Kai's rate of success. However, under the discovery procedures, Wilkie's counsel was entitled to learn of Kai's prior tracking experience, and it appears that Wilkie's counsel was given a tracking log which showed Kai's prior tracking experience. Under these circumstances, if there was a weakness in Kai's prior experience in actual cases, we believe that defense counsel should have at least specifically objected and required the state to produce further evidence of Kai's experience in actual cases, or attack the weight of the tracking evidence. . We note that the trial court gave an instruction which indicated that the evidence regarding the use of a tracking dog should be viewed with caution. . In some instances, hearsay is admissible through expert witnesses if the evidence constitutes "[fjacts or data . of a type reasonably relied upon by experts in the . field." A.R.E. 703. While verification and concurrence by colleagues may be fact's or data reasonably relied upon in some circumstances, Harmor clearly came to his conclusions based upon his own observations. Evidence Rule 703 allows hearsay to the extent necessary to lay the foundation for the testifying expert. Here, the hearsay would be offered merely to enter opinions of experts not present in court.

10418637

Alexander N. RESEK, Sr., Appellant, v. STATE of Alaska, Appellee

Resek v. State

1986-03-21

No. A-787

1188

1193

715 P.2d 1188

715

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:57:04.599082+00:00

CAP

Before BRYNER, C.J., COATS and SINGLETON, JJ.

Alexander N. RESEK, Sr., Appellant, v. STATE of Alaska, Appellee.

Alexander N. RESEK, Sr., Appellant, v. STATE of Alaska, Appellee. No. A-787. Court of Appeals of Alaska. March 21, 1986. Monica Jenicek, and Trena L. Heikes, Stone, Waller & Jenicek, Anchorage, for appellant. Alexander N. Resek, Sr., in pro. per. Robert D. Bacon, Asst. Atty. Gen., Anchorage, and Harold M. Brown, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., COATS and SINGLETON, JJ.

3144

19459

OPINION COATS, Judge. Alexander Resek, in accordance with plea negotiations, pleaded no contest to fifteen counts of misconduct involving a controlled substance in the third degree (cocaine), AS 11.71.030(a)(1), and to one count of misconduct involving a controlled substance in the first degree (engaging in a continuing criminal enterprise), AS 11.71.-010(a)(3). Resek has appealed arguing that he should have been allowed to withdraw his plea, and that he received ineffective assistance of counsel because of a statutory limit on the compensation his appointed counsel could receive. He also argues that his sentence was excessive. We affirm both Resek's conviction and sentence. The state indicted Resek, along with five members of his immediate family, for sixty-one counts of misconduct involving a controlled substance. Early in May 1984, the state rejected a proposed plea agreement, under which Resek would have pleaded guilty to all of the counts and the members of Resek's family would plead to lesser charges. Resek's appointed counsel also investigated the possibility of a deal for Resek alone, but stated that he was under the impression that the state would only consider a plea involving the entire family. On May 17, the state indicated that it was again willing to discuss a plea agreement. Resek, his family members, and their attorneys met in a jury room to discuss what plea proposal to make to the state. This meeting took several hours and was emotionally charged. Although the state had not expressly stated that it would only accept a plea offer involving all of the defendants, attorneys for individual members of the Resek family were under the impression that the state would consider only a "package-deal." Resek, at one point in the discussion, asked if he could proceed to trial and let the others plead; the state rejected this offer. Just before noon on May 17, Resek and his family all finally agreed to plead. Re-sek was very concerned throughout the negotiations that his family get a "good deal." He was the last person to agree to the plea bargain. After reaching the agreement, Resek and his family immediately went before Judge Ralph E. Moody to enter their pleas. Initially, Resek was to have entered his plea first, but because Resek wanted to insure that his family members' pleas were accepted as a condition to his own plea, his plea was delayed until the others had pled. After accepting the other parties' pleas, the court conducted an extensive voir dire of Resek to insure that he was knowingly and voluntarily entering his plea. Judge Moody then accepted Resek's no contest plea to fifteen counts of misconduct involving a controlled substance in the third degree, and one count of engaging in a continuing criminal enterprise. Within twenty-four hours of entering his plea, Resek indicated that he wanted to withdraw his plea. Resek's appointed counsel moved to withdraw as counsel on the plea-withdrawal matter because he was "undoubtedly part of the problem in Mr. Resek's mind." Judge Moody appointed separate counsel to assist Resek in determining if a motion to withdraw plea would be meritorious. On June 8, 1984, Resek formally moved to withdraw his plea. On August 14, 1984, Judge Moody held a hearing on Resek's motion to withdraw his plea. Counsel for all of the parties involved in the plea negotiations were called to testify as to the circumstances surrounding Resek's plea. After hearing the testimony, Judge Moody denied Resek's motion to withdraw his plea, finding that Resek's plea withdrawal was an attempt to manipulate the system, that Resek had received effective assistance of counsel, that the state had not offered a "package-deal" plea agreement, and that the state would suffer prejudice if Resek was allowed to withdraw his plea. Judge Moody sentenced Resek to a total sentence of thirty years on the fifteen counts of misconduct involving a controlled substance in the third degree, (MICS) a class B felony. Judge Moody then sentenced Resek to forty years on the continuing criminal enterprise count, an unclassified felony, concurrent with the sentences for the MICS counts. Therefore, Resek's total sentence was forty years to serve. In addition, Judge Moody also imposed a fine of $75,000. Resek now appeals his conviction and sentence. I. Resek's contends that Judge Moody erred in denying his motion to withdraw his plea. Resek contends that he had a "fair and just" reason to withdraw his plea because the state's "package-deal" plea agreement put undue pressure on him to plead. Resek also contends that Judge Moody erred in finding that the state would be prejudiced by the withdrawal, and that Resek was attempting to manipulate the system. We consider Judge Moody's finding that Resek was attempting to manipulate the system to be dispositive. Alaska Rule of Criminal Procedure 11(h)(2) provides: Once the plea has been accepted by the court and absent a showing that withdrawal is necessary to correct a manifest injustice, a defendant may not withdraw a plea of guilty or nolo contendere as a matter of right. Before sentence, the court in its discretion may allow the defendant to withdraw a plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant's plea. [Emphasis added.] In Love v. State, 630 P.2d 21, 24 (Alaska App.1981), we recognized that "withdrawal of a guilty plea should be freely allowed unless the prosecution has been substantially prejudiced." We emphasized the trial court's discretion in granting or rejecting a motion to withdraw a plea. Id. In Wahl v. State, 691 P.2d 1048, 1051 (Alaska App.1984), we stated that the trial court should consider the totality of the circumstances in evaluating motions to withdraw a plea. The totality of the circumstances include the extent of the defendant's delay in making his request to withdraw plea, the amount of prejudice to the prosecution, and the possibility that the defendant is attempting to manipulate the proceedings to gain an unfair tactical advantage. Resek first indicated that he wanted to withdraw his plea within twenty-four hours after entering his plea so no problems of delay exist. However, Judge Moody found that by entering and then withdrawing his plea, Resek was attempting to manipulate the court system. Judge Moody based his conclusion on the following facts: Resek had proposed pleading to all of the charges two weeks before entering into the ultimate plea bargain; Resek had "plenty of time" to consider entering a plea; and Re-sek was deliberately using his plea to help his co-defendants. In Ningealook v. State, 691 P.2d 1053 (Alaska App.1984), the defendant sought a continuance agreement from the prosecution to have more time to consider changing his plea. When this attempt to gain more time failed, he moved the court for a continuance on other grounds, the day before trial. Again, the motion to continue was denied, and the morning of trial the defendant entered his plea of no contest to second-degree murder. Id. at 1055. We stated that "[fjrom this sequence of events, particularly when we consider the trial judge's ability to observe the defendant and the proceedings, the trial court could reasonably find that [the defendant] en tered his plea to manipulate the system." Id. at 1055-56. Like in Ningealook, the facts in Resek's case support Judge Moody's finding that Resek was attempting to manipulate the system. Resek's counsel testified that Resek had decided to plead to all of the charges before May 17th. In addition, Resek's counsel testified that, although Re-sek's attitude on pleading varied, Resek was always concerned with insuring that his family got a "good deal." Resek told his appointed counsel at one point that he would take the heat "if his family would be treated well." Additionally, when the pleas were changed, Resek wanted to make sure that his family received the pleas they had negotiated, therefore, Resek insisted on pleading last. Only after all of his family's pleas were entered, did Resek move to withdraw his plea. Based upon these facts, we conclude that Judge Moody did not err in denying Resek's motion to withdraw plea. II. Resek next contends that he received ineffective assistance of counsel because his appointed counsel's remuneration was statutorily limited, thereby creating a "conflicting consideration." See Risher v. State, 523 P.2d 421, 424 (Alaska 1974). Resek does not allege that his appointed counsel failed to show the skill, judgment, and diligence of reasonably competent defense counsel. In fact, Judge Moody specifically found that Resek's appointed counsel had represented Resek competently. Thus, the thrust of Resek's argument is that the statutory payment scheme for appointed counsel creates a per se impairment of effective assistance of counsel. We find Resek's contention without merit. In asserting a claim of ineffective assistance of counsel, a defendant is required to show that his attorney acted below the standard of competency, and that his conviction would not have resulted but for the incompetency. Springer v. State, 666 P.2d 431, 435 (Alaska App.1983). In United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) the Supreme Court addressed an argument based on a general allegation that the short time period that defense counsel had to prepare for trial created an inference of ineffectiveness. The court stated: [W]e begin by recognizing that the right to effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated. Cronic, 466 U.S. at -, 104 S.Ct. at 2046, 80 L.Ed.2d at 667 (emphasis added). We do not find that the statutory fee schedule for appointed counsel creates a circumstance that justifies a presumption of ineffectiveness without inquiry into counsel's actual trial performance. Lawyers have traditionally been responsible for representing indigent clients without regard to compensation. See Wood v. Superior Court, 690 P.2d 1225, 1228 (Alaska 1984); see also Arnold v. State, 685 P.2d 1261, 1266 (Alaska App.1984) (client's lack of financial resources does not free an attorney who has agreed to represent a client from the obligation to provide adequate representation). Resek does not argue that his appointed counsel's representation at trial was ineffective. Indeed, the record supports Judge Moody's finding that Re-sek's appointed counsel acted competently. Therefore, we do not find reversible error. III. Finally, Resek argues that the sentence he received, a total of forty years, is excessive. Judge Moody divided the fifteen counts of misconduct involving a controlled substance in the third degree, AS 11.71.-030(a)(1), into three groups of five. He sentenced Resek to ten years on each count, each group of five concurrent within the group, but consecutive to the other groups of five, for a total sentence of thirty years. Judge Moody then sentenced Resek to forty years for the one count of misconduct involving a controlled substance in the first degree, AS 11.71.-010(a)(3), (engaging in a continuing criminal enterprise), concurrent with the other sentences. Therefore, Resek was sentenced to a total of forty years to serve. In addition, Resek was ordered to pay a fine of $75,000. This is the first time a sentence under AS 11.71.010(a)(3) has come before this court. Our statute was patterned after the federal continuing criminal enterprise statute, 21 U.S.C. § 848. See Ch. 45, § 1, SLA 1982 (purpose of Alaska Act is to revise drug laws in conformance with Federal Controlled Substances Act). The Eleventh Circuit Court of Appeals recently discussed the policies behind sentencing under 21 U.S.C. § 848 as follows: The general offense, engaging in a continuing criminal enterprise, is the most serious of all the drug-related offenses proscribed in Title 21.... [T]he offense is more serious than the others in that it poses a greater danger to society. The offense is also more serious in terms of the defendant's culpability.... The legislative history of the act reveals that [t]his section 408 [21 U.S.C. § 848] is the only provision of the bill providing minimum mandatory sentences, and is intended to serve as a strong deterrent to those who otherwise might wish to engage in the illicit traffic, while also providing a means for keeping those found guilty of violations out of circulation. United States v. Darby, 744 F.2d 1508, 1527 (11th Cir.1984). The federal courts have upheld numerous sentences comparable with the sentence imposed here for offenses similar to those committed by Resek. See, e.g., Darby, 744 F.2d at 1529 (sentence of sixty years and fine of $100,000). Resek ran a major drug operation involving the importation of a kilogram of cocaine per week into Anchorage. He was distributing cocaine to at least seventeen other dealers within the city. At the time Resek committed his offense he was on probation or parole for a conviction involving four counts of sale of cocaine. Resek was serving a sentence of ten years with five suspended. He was paroled on February 3, 1983, and then arrested for the present offense on September 10, 1983. Additionally, the presentence report shows that Resek has not been gainfully employed more than a few times in his entire life. Considering the magnitude of Resek's operation, and Resek's apparent unwillingness to lead a life not involved with the sale of controlled substances, we find that the forty-year sentence imposed on Resek is consistent with the federal precedent and serves the strong policy reasons behind the creation of the offense. Therefore, we hold that Resek's sentence was not clearly mistaken. See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). Resek also raises numerous issues regarding Judge Moody's sentencing for the fifteen counts of misconduct involving a controlled substance in the third degree. Resek had four prior felony convictions, therefore he was subject to presumptive sentencing. In addition, Resek's counsel conceded that all of the dismissed counts against Resek were sufficiently verified for purpose of sentencing. Resek also conceded that two aggravating factors applied, AS 12.55.155(c)(20) (the defendant was on furlough under AS 33.30 or on parole or probation for another felony charge or conviction), and AS 12.55.155(c)(25) (the defendant is convicted of an offense specified in AS 11.71 and the offense involved large quantities of a controlled substance). The state proposed, and Judge Moody found the additional aggravating factors found in AS 12.55.155(c)(21), and (10). Initially, Resek argues that Judge Moody applied an incorrect standard in finding the aggravating factors he applied. Resek is correct in his argument, however, we agree with the state's position that this was harmless error. The record reflects that Resek conceded that two aggravators applied to his case, and we find that the record establishes the other aggravating factors by clear and convincing evidence. See AS 12.55.155(f). In addition, we do not find any merit to Resek's contentions that Judge Moody found more than one aggravating factor based upon the same conduct, and applied both aggravators to the same count there.by increasing the sentence for that count twice, and that Judge Moody failed to evaluate the aggravating factors he applied in light of the Chaney criteria. The record reflects that Judge Moody did not apply differing aggravating factors based on the same conduct to individual counts. Therefore, Resek's sentence for each count was not increased twice on the basis of the same conduct. The record also reflects that, in his sentencing remarks, Judge Moody made findings concerning the aggravating factors that he applied based upon Chaney. We find Resek's-arguments without merit. Resek's conviction and sentence are AFFIRMED. . Resek moved to withdraw only his own plea. The apparent intent of the motion was that Resek's family members' pleas would remain in effect. . We find merit in the reasoning of In Re Ibarra, 34 Cal.3d 277, 193 Cal.Rptr. 538, 666 P.2d 980 (Cal.1983), which states that when a trial court is taking a plea in connection with a "package-deal" plea agreement, careful questioning of the defendant must take place to insure that the plea-agreement did not unduly influence the defendant's decision to plead. Under Ibarra, the trial court should first determine whether the inducement for the plea is proper. Then, the court should consider the factual basis for the guilty plea, the nature and degree of coerciveness, and whether the promise of leniency to a third party was a significant consideration in the defendant's choice to plead guilty. Lastly, the court should consider other factors such as the age of the defendant, whether the defendant or prosecutor initiated plea negotiations, and whether charges have already been pressed against the third party. Id., 193 Cal.Rptr. at 544-45, 666 P.2d at 986-87. However, regardless of Judge Moody's finding that there was not a "package-deal" plea agreement, we find that in the present case Judge Moody conducted a voir dire sufficient to satisfy the above rules. . The four counts involved in Resek's prior conviction were for the sale of amounts ranging from one-half ounce of cocaine to one-half pound of cocaine. His original sentence was vacated by this court. At the time he was resen-tenced, he had already committed forty-three of the offenses charged in his current arrest. . The author of this opinion would hold that Resek's sentence should not exceed twenty years. To the best of my knowledge this would still make Resek's sentence far in excess of any similar sentence imposed for a drug offense in this state. . Alaska Statute 12.55.155(c)(10) provides: "the conduct constituting the offense was among the most serious conduct included in the definition of the offense_" Judge Moody found this aggravator only applied to three counts that each involved a kilogram of cocaine. Alaska Statute 12.55.155(c)(21) provides: "the defendant has a criminal history of repeated instances of conduct violative of criminal laws, whether punishable as felonies or misdemeanors, similar in nature to the offense for which the defendant is being sentenced under this section. ." Judge Moody found this factor based upon the stipulation that all of dismissed counts were verified for the purposes of sentencing. In addition, Judge Moody found Resek was a worst type of offender, "both from the standpoint of having a criminal background with no significant work history and from the standpoint of having committed the most serious offense." .State v. Chaney, 477 P.2d 441, 444 (Alaska 1970); see also Juneby v. State, 641 P.2d 823, 846 (Alaska App.1982) modified on other grounds, 665 P.2d 30 (Alaska App.1983).

10418360

In the Matter of J.R.B. and T.W.G., Minors Under the Age of Eighteen (18) Years

In re J.R.B.

1986-03-21

No. S-907

1170

1174

715 P.2d 1170

715

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:57:04.599082+00:00

CAP

Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

In the Matter of J.R.B. and T.W.G., Minors Under the Age of Eighteen (18) Years.

In the Matter of J.R.B. and T.W.G., Minors Under the Age of Eighteen (18) Years. No. S-907. Supreme Court of Alaska. March 21, 1986. Sen K. Tan, Asst. Public Defender, Anchorage, Dana Fabe, Public Defender, Anchorage, for appellant. Deborah Howard, Asst. Atty. Gen., Anchorage, Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

2130

12863

OPINION MATTHEWS, Justice. In this case we are presented with questions concerning the standards of proof and the admissibility of hearsay in state parental rights termination proceedings conducted pursuant to the federal Indian Child Welfare Act (hereinafter ICWA), 25 U.S.C. § 1901-63 (1982). We conclude that under the ICWA, the trial court need only apply a "beyond a reasonable doubt" standard of proof to its finding that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. The ICWA does not require the application of the reasonable doubt standard to those additional findings mandated by state law. We also conclude that the use of hearsay evidence in the disposition phase of parental rights termination proceedings as allowed by state law does not conflict with the ICWA. I. STANDARD OF PROOF After a four day trial, Judge Ripley found that by clear and convincing evidence T.W.G. and J.R.B. were children in need of aid; that by clear and convincing evidence the mother's inability to care for her children was likely to continue; and that beyond a reasonable doubt the return of the children to the mother's custody was likely to result in serious emotional or physical damage to them. He ordered all parental rights terminated. The mother argues that section 1912(f) of the ICWA requires that the reasonable doubt standard be applied to findings required by state law that the child is in need of aid as a result of parental conduct and that the harmful parental conduct is likely to continue. We disagree. Federal law preempts state law, first, if Congress expressly or implicitly declares the state law preempted, or, second, if the state law conflicts with the federal law to the extent that (a) it is impossible to comply simultaneously with both or (b) the state regulation obstructs the execution of the purpose of the federal regulation. Webster v. Bechtel, 621 P.2d 890, 897 (Alaska 1980). Looking to the "policy, intent, and context of the statute," id., it is apparent that state law concerning placement of Indian children is not expressly or implicitly declared preempted. See, e.g., 25 U.S.C. § 1902, 1921 (Supp.1985). The application of the clear and convincing standard to the findings that the child is in need of aid as a result of parental conduct and that the parental conduct is likely to continue also does not conflict with section 1912(f) of the ICWA. Section 1912(f) of the ICWA provides: No termination of parental rights may be ordered . in the absence of a determination, supported by evidence beyond a reasonable doubt . that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. Alaska Statute 47.10.080(c)(3) provides: If the court finds that the minor is a child in need of aid, it shall, by order, upon a showing in the adjudication by clear and convincing evidence that there is a child in need of aid under AS 47.10.010(a)(2) as a result of parental conduct and upon a showing in the disposition by clear and convincing evidence that the parental conduct is likely to continue to exist if there is no termination of parental rights, terminate parental rights.... Section 1912(f) looks to likely future harm to the child. Its plain language requires only a finding beyond a reasonable doubt of likely harm to the child with continued custody by the parent or Indian custodian. In contrast, AS 47.10.080(c)(3) is concerned with the present condition of the child and the likely future conduct of the parent. It requires a finding by clear and convincing evidence that the child is in need of aid as a result of parental conduct and that the parental conduct that placed the child in need of aid is likely to continue. The Alaska statute requires findings additional to that required by the ICWA, thus providing a level of protection to the parental rights beyond that provided by the ICWA, and is not preempted by the ICWA. See 25 U.S.C. § 1921, supra note 3. II. ADMISSIBILITY OF HEARSAY At the beginning of the trial, Judge Ripley ruled that hearsay would be admissible in the disposition phase pursuant to Children's Rule 17. Alaska Statute 47.10.-080(c)(3) splits parental rights termination proceedings into an adjudicative phase, in which the trial court determines whether the child is in need of aid as a result of parental conduct, and a dispositive phase, in which the trial court determines whether the detrimental parental conduct is likely to continue. A parental rights termination proceeding under AS 47.10.080 is a children's proceeding in which the Alaska Children's Rules apply. See AS 47.10.010; Alaska R. Children's P. 1. Children's Rule 17(b) provides: "In the dispositive phase hearsay evidence may in the discretion of the court be employed to accomplish a fair and proper disposition of the matter." The mother appeals the trial court's ruling that hearsay was admissible. She contends that the classification in AS 47.10.-080(c)(3) of a decision to terminate parental rights as a disposition is "replaced by" the ICWA and that the termination decision is part of the adjudicative phase under the ICWA. She also argues that due process requires the exclusion of hearsay in parental rights termination proceedings. We disagree. Interpreting the mother's first argument as a preemption claim, we again apply the Webster preemption criteria. Since Congress did not declare state rules and procedures used in parental rights termination proceedings preempted, we look for some conflict between the state law and the ICWA. Such a conflict may arise when (1) it is impossible to comply simultaneously with the dual regulation or (2) the state regulation obstructs the execution of the purpose of the federal regulation. Webster, 621 P.2d at 897. The ICWA is silent as to the applicable rules of evidence and, in particular, the admissibility of hearsay. The ICWA is also silent as to classification of some parts of the proceeding as an adjudication and other parts as a disposition. Hence, compliance with state law does not directly conflict with the ICWA. Our inquiry is narrowed to whether the state rule "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." 621 P.2d at 901. In enacting the ICWA "Congress was concerned with two major goals: protecting the best interests of Indian children and promoting the stability and security of Indian tribes and families." A.B.M. v. M.H., 651 P.2d 1170, 1172 (Alaska 1982) (citing H.R.Rep. No. 1386, 95th Cong., 2d Sess. 25-26 (1978), reprinted in 1978 U.S. Code Cong. & Ad.News 7530), cert, denied sub nom., Hunter v. Maxie, 461 U.S. 914, 103 S.Ct. 1893, 77 L.Ed.2d 283 (1983). We believe that the admission of hearsay evidence in the dispositive phase, in the sound discretion of the trial court, is consistent with these objectives. Alaska has similar goals with respect to its children's proceedings: protecting the welfare of the child, while, to the maximum extent possible, preserving existing family relationships. Alaska Statute 47.05.060. The discretionary use of hearsay evidence by the trial court has been found to serve rather than frustrate these stated goals, and there is no reason to expect a different result with respect to the federal goals. See AS 47.10.-081(b); Matter of S.D., Jr., 549 P.2d 1190, 1201-02 (Alaska 1976). Further, we note that § 1912(c) of the ICWA provides: Each party to a foster care placement or termination of parental rights proceeding under state law involving an Indian child shall have a right to examine all reports or other documents filed with the court upon which any decision with respect to such action may be based. While this section seems to apply only to written reports, it suggests that the admission of such reports, which are hearsay themselves and which often contain statements of others is contemplated by the ICWA. We conclude that the admission of hearsay in the dispositive phase of the parental rights termination proceeding is not preempted by the ICWA. Likewise, we conclude that the discretionary use of hearsay does not violate the parents' constitutional rights to due process of law. While a parental rights termination proceeding interferes with a fundamental liberty interest of the parent, Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599, 606 (1982), the discretionary use of hearsay in the dispositive phase of such proceedings, subject to review for abuse of discretion, is consistent with fundamental fairness. Cf. Williams v. New York, 337 U.S. 241, 249-52, 69 S.Ct. 1079, 1084-86, 93 L.Ed. 1337, 1343-44 (1949) (due process is not violated when sentencing judge uses out of court information in imposing death sentence; judge should have access to the best available information); Stein v. New York, 346 U.S. 156, 196, 73 S.Ct. 1077, 1098, 97 L.Ed. 1522, 1548 (1953) (hearsay evidence rule, with all its subtleties, anomalies, and ramifications, will not be read into the fourteenth amendment). Upon reviewing the record, we find no abuse of discretion in the trial court's admission of hearsay in this case. In the course of the proceeding some hearsay was admitted for all purposes, some was admitted only to show a basis for action that the witness took, and some was ruled inadmissible. The mother objects to the trial court's ruling allowing the social workers and counselors who had worked with the family to testify as to information received from other caseworkers. The record indicates that this evidence was incidental to the witnesses' non-hearsay testimony based on their first-hand observations and the mother's statements to them, and that it was not a primary basis for the trial court's decision. We also note that had these witnesses' testimony been offered as expert opinions, the trial court could have admitted the hearsay as part of the basis for their opinions. Alaska R.Evid. 705(c). The mother also objects to the introduction of documentary evidence of doctors' evaluations of the mother where the doctors themselves did not testify. Again it appears that these evaluations were not a primary basis for the trial court's decision. Moreover, such documents come within the ambit of 25 U.S.C. § 1912(c) (1982), providing that "[ejach party . shall have a right to examine all reports or other documents filed with the court upon which any decision with respect to such action may be based." The mother does not contend that she was denied examination of the documents, or that she requested and was denied the opportunity to take the depositions of the doctors who wrote the reports. In sum, from the record of this case we find no abuse of discretion in the trial court's admission of hearsay. We AFFIRM the order of the superior court. . The parties agree that the children are Indian children for purposes of the ICWA. Hence, the ICWA is applied in this proceeding. . 25 U.S.C. § 1902 provides in pertinent part: The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families.... (emphasis added). . 25 U.S.C. § 1921 provides: In any case where State or Federal law applicable to a child custody proceeding under State or Federal law provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under [the Child Custody Proceedings Subchapter], the State or Federal court shall apply the State or Federal standard. . Alaska Statute 47.05.060 provides: The purpose of this title as it relates to children is to secure for each child the care and guidance, preferably in the child's own home, that will serve the moral, emotional, mental, and physical welfare of the child and the best interests of the community: to preserve and strengthen the child's family ties whenever possible, removing the child from the custody of the parents only as a last resort when the child's welfare or safety or the protection of the public cannot be adequately safeguarded without removal; and, when the child is removed from the family, to secure for the child adequate custody and care.

8435872

CIRCLE DE LUMBER COMPANY, Liberty Mutual Insurance Company, Appellants, v. Otto C. HUMPHREY, Alaska Workers' Compensation Board, Appellees

Circle De Lumber Co. v. Humphrey

2006-03-03

No. S-11086

941

954

130 P.3d 941

130

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:44:20.949540+00:00

CAP

Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

CIRCLE DE LUMBER COMPANY, Liberty Mutual Insurance Company, Appellants, v. Otto C. HUMPHREY, Alaska Workers’ Compensation Board, Appellees.

CIRCLE DE LUMBER COMPANY, Liberty Mutual Insurance Company, Appellants, v. Otto C. HUMPHREY, Alaska Workers’ Compensation Board, Appellees. No. S-11086. Supreme Court of Alaska. March 3, 2006. Colleen Libbey, Libbey Law Offices, Anchorage, for Appellant Circle De Lumber Company. Randall J. Weddle, Holmes Weddle & Bar-eott, Anchorage, for Appellant Liberty Mutual Insurance Company. Tim MacMillan, Attorney at Law, Anchorage, for Appellee Otto C. Humphrey. Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

7329

44981

OPINION CARPENETI, Justice. I. INTRODUCTION Circle De Lumber Company was ordered to pay workers' compensation benefits to Otto Humphrey for a work-related injury that Humphrey suffered in 1993. Circle De appeals the Alaska Workers' Compensation Board's methods of calculating permanent total disability benefits rates and temporary total disability benefits rates, the retrospective interest awards to Humphrey for late-paid .benefits, and the award of attorney's fees to Humphrey in excess of the statutory minimum. We affirm the board's decision in all respects. II. FACTS AND PROCEEDINGS On February 22, 1993 the Circle De Lumber Company (Circle De) hired Otto Humphrey, a resident of Soldotna, as a logging equipment operator. In May 1993 Humphrey suffered a head injury during his em ployment with Circle De. Humphrey was riding on the top of a skidder when it struck a tree, causing the top of the tree to break off and hit Humphrey on the head. According to his workers' compensation claim, Humphrey suffered from severe headaches, head trauma, loss of hearing in his right ear, short-term memory loss, loss of equilibrium in his right ear, impaired equilibrium in his left ear, and ringing in his right ear as a result of the accident. Circle De paid Humphrey temporary total disability (TTD) benefits from May 29, 1993 until November 16, 1995. From November 11, 1995 until December 6, 1996 Circle De paid Humphrey permanent total disability (PTD) benefits. Then Circle De resumed paying TTD benefits, as well as permanent partial impairment (PPI) benefits, until December 9, 1999. On December 7, 1999 a panel of physicians examined Humphrey at Circle De's request and determined that he was permanently and totally disabled. Following this determination, Circle De paid Humphrey PTD benefits effective December 9, 1999. In June 2000 the parties entered into a stipulation declaring that Humphrey was permanently and totally disabled. The stipulation was approved by the Alaska Workers' Compensation Board (hereinafter "the board") in Humphrey v. Circle De Lumber Co. (Humphrey I). The board also determined that Humphrey had been permanently and totally disabled beginning on December 7, 1999. In Humphrey II, issued in November 2000, the board considered Humphrey's request to adjust his PTD weekly compensation rate from $110 per week to $351 per week, based on the wage rate in 1998 of an experienced tree faller ($21.50 per hour), a fifty-hour work week, and a six-month logging season. Following Gilmore v. Alaska Workers' Compensation Board, the board agreed to calculate Humphrey's lost earnings based on the nature of his employment and work history under the version of AS 23.30.220(a)(2) that was in effect in 1993, rather than based on the historical average calculation under AS 23.30.220(a)(1). The board accepted Humphrey's calculation, resulting in gross weekly earnings of $560 and a weekly PTD compensation rate of $351, awarded retrospectively to December 7, 1999, the date of the PTD classification. The board also required Circle De to pay interest on any late-paid PTD benefits, and awarded Humphrey the statutory minimum in attorney's fees and costs. Following the board's decision in Humphrey II, Humphrey asked the board to retroactively increase his TTD compensation rate. On January 19, 2001, in Humphrey III, the board retroactively adjusted Humphrey's TTD compensation rate from $110 per week to $236.55 per week. 71s in Humphrey II, the board departed from the standard practice of calculating Humphrey's gross weekly wage by using former AlS 23.30.220(a)(1), this time using his hourly wage at the time of injury to compute his compensation rate. The board also award ed Humphrey interest on any late TTD benefits payments, statutory minimum attorney's fees, and costs. On July 23, 2001, in Humphrey IV, the board granted Humphrey's request for retroactive PPI benefits, paid at his TTD compensation rate; granted Humphrey interest on his retroactive PPI benefits; found Circle De in default for failure to pay interest on Humphrey's TTD benefits; awarded Humphrey interest and a penalty on Circle De's defaulted interest payments; and granted Humphrey attorney's fees of thirty-five percent, in excess of the statutory minimum. Circle De appealed the board's decisions in Humphrey II-TV to the superior court. Its appeals were consolidated and heard by Superior Court Judge Michael L. Wolverton. Circle De argued that the board erred in setting Humphrey's PTD and TTD compensation rates; that interest should have accrued only after the board's "due date" for payment set in its order, not on the date when Humphrey originally became entitled to TTD or PPI benefits; and that the board erred in awarding enhanced attorney's fees in Humphrey TV. Judge Wolverton found the board's compensation rates for Humphrey's PTD and TTD benefits to be supported by substantial evidence. However, because the board's order was unclear on whether the awarded compensation rates were excessive under the statute, he remanded the case for additional findings. Judge Wolverton affirmed the board's awards of interest, reasoning that "the purpose of an interest award is to recognize the time value of money and to reimburse the aggrieved party for value lost." Judge Wolverton also remanded the award of enhanced attorneys' fees; in order to determine whether the enhanced award was manifestly unreasonable, Judge Wolver-ton needed findings by the board that explained the basis for its decision. Upon remand, in Humphrey V the board found that Humphrey worked for Circle De for nine weeks and four days. The board calculated that, using this period of employment, the PTD compensation rate set by the board ($351 per week) did not exceed Humphrey's gross weekly earnings at the time of injury (which the board calculated to be $421.18 per week). In a separate decision, Humphrey VI, the board ruled on attorney's fees and costs. The board supported its earlier award by finding the award of enhanced fees to have been reasonable and necessary for the successful presentation of Humphrey's claim, and that the failure to award attorney's fees in excess of the statutory minimum would result in "manifest injustice." Circle De then brought an appeal to this court, alleging error in the board's findings in Humphrey II-VI. However, because the board's findings in Humphrey V and VI had not first been appealed to the superior court, we concluded that we lacked appellate jurisdiction under Alaska Rule of Appellate Procedure 202(a). We therefore remanded the issues presented in Humphrey V and VI to the superior court for a final judgment, while staying our consideration of all other issues appealed by Circle De. On remand, Judge Wolverton held that the board did not err in its conclusions in Humphrey V and VI. Circle De now seeks review on all of its contentions. III. STANDARD OF REVIEW When the superior court acts as an intermediate court of appeals, we independently review the decision of the administrative agency. If the parties raise a question of law that does not involve any special agency expertise, we review the legal question under the substitution of judgment standard. Under the substitution of judgment standard, we apply our independent judgment and adopt the rule of law that is most persuasive in light of precedent, reason and policy. If, on the other hand, the question of law involves agency expertise, we review the decision of the administrative agency under the reasonable basis test and "defer to the agency if its interpretation is reasonable." We review an administrative agency's determinations of fact under the substantial evidence standard. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." It is the exclusive province of the board to make determinations of witness credibility. Unless statutory interpretation is required, we review the board's award of attorney's fees for an abuse of discretion. We will uphold the award unless it is manifestly unreasonable. IV. DISCUSSION Circle De challenges Humphrey's PTD compensation rate of $351 per week, his TTD compensation rate of $236.55 per week, the interest awarded to Humphrey, and the grant of attorney's fees in excess of the statutory minimum. We consider each contention in turn. A. PTD Compensation Rate In the case of a permanent and total disability, during the continuance of the disability an employee is entitled to a compensation award of eighty percent of the employee's spendable weekly wages. Under former AS 23.30.220(a), the employee's spendable weekly wage is the employee's gross weekly earnings minus payroll tax deductions. Gross weekly earnings were calculated pursuant to former AS 23.30.220(a)(1): "by dividing by 100 the gross earnings of the employee in the two calendar years immediately preceding the injury." However, in Gilmore v. Alaska Workers' Compensation Board, we held that the equal protection clause of the Alaska Constitution forbids the determination of gross weekly earnings under AS 23.30.220(a)(1) when the amount earned by the employee in the two years before the injury is not an accurate predictor of the losses due to the injury. In such cases, the board should calculate gross weekly earnings pursuant to former AS 23.30.220(a)(2): "by considering the nature of the employee's work and work history," with the caveat that the "compensation may not exceed the employee's gross weekly earnings at the time of injury." In Humphrey II the board found "substantial evidence that [Humphrey's] gross weekly wage calculated under AS 23.30.220(a)(1) is not an accurate predicator of the employee's losses due to his injury." First, Humphrey's earnings in the two years prior to his injury had been the two lowest earning years in his most recent ten years of employment. Second, the board found "several indications that [Humphrey's] earning pattern was changing at the time of his injury," resulting in an increased future earning potential. Following Gilmore, the board therefore calculated Humphrey's PTD compensation rate under former AS 23.30.220(a)(2) "by considering the nature of the employee's work and work history." Circle De agrees that it was proper for the board to use this alternative calculation, but argues that the board failed to properly execute this calculation. More specifically, Circle De argues that the board, in setting the PTD compensation rate at $351 per week, committed error by: (1) relying on statistical wage rates rather than on Humphrey's actual earnings history; (2) making a factual finding — that Humphrey's earning patterns were improving — unsupported by substantial evidence; and (3) awarding Humphrey a PTD compensation rate in excess of his gross weekly earnings at the time of injury. 1. The board did not fail to consider Humphrey's individual history of earnings and employment when making its PTD award. Circle De argues that the board committed error by using the statistical wage rates for a tree faller, rather than Humphrey's actual earnings history, when calculating his compensation rate under former AS 23.30.220(a)(2). The board predicted Humphrey's losses due to injury by using the 1998 hourly wage rate of an experienced tree faller ($21.50) and multiplying that by the number of hours Humphrey generally worked (fifty per week). The board factored in that Humphrey's work was seasonal in nature and discounted his weekly wage according to the fact that Humphrey would probably work only about six months per year. Circle De contends that using Department of Labor average wage data to set a PTD compensation rate is contrary to our decision in Wrangell Forest Products v. Alderson. In Wrangell Forest Products we held that when using the alternative method of calculating gross weekly earnings the board should "focus[ ] . on the particular employee rather than on a hypothetical employee similarly circumstanced." Circle De argues that, by ignoring Humphrey's individual labor and earnings situation and relying on average wage rates, the board erroneously focused on a hypothetical employee. However, the board's decision clearly indicates the consideration of numerous facts specific to Humphrey's situation and their possible effect on his earnings level. While determining his PTD compensation rate, the board took into account the ñatee of Humphrey's employment, the hours and months out of the year that he typically worked, his work history, and the job offer in management he received prior to his injury. The use of a statistical average wage rate, in conjunction with the consideration of Humphrey's past work history and his future earnings potential, does not mean that the board failed to engage in the kind of personalized assessment that we required in Wrangell Forest Products. Circle De also objects to the use of the average wage rate for an experienced tree faller ($21.50), rather than for an equipment operator ($14.00), the job it says Humphrey held with Circle De at the time of his injury. The board awarded Humphrey PTD compensation using the 1998 average wage rate for an experienced tree faller because it concluded that such a rate more accurately predicted Humphrey's losses due to his injury and resulting disability. The board pointed to Humphrey's testimony that "although he was working as an equipment operator at the time of his injury, he had experience as a tree faller and preferred work as a tree faller." Because a PTD award is designed to compensate a worker for his or her economic losses resulting from permanent exclusion from the work force, consideration of one's long-term employment prospects in light of prior employment can be a reliable method for predicting the likely losses following an employee's injury. We conclude that the board's decision to use the tree faller wage rate in this case is supported by substantial evidence. Humphrey testified that he had previously worked as a tree faller, and his rehabilitation reports suggest that at a minimum he was employed primarily as a tree faller for each of the five years from 1987 to 1991. He also testified that he in fact preferred such employment. And, as discussed in the next section, the board's factual findings support the notion that Humphrey's earning patterns were stabilizing and improving. Additionally, the board used the average wage rate for 1998 because that was near the time at which the employee was declared permanently and totally disabled. These findings, in conjunction with Humphrey's past employment as a tree faller, adequately support the board's calculation of PTD benefits. 2. The board's findings regarding Humphrey's earning patterns are supported by substantial evidence. Circle De vigorously challenges the board's finding that Humphrey's earnings pattern was changing in a favorable direction at the time of his injury. First, Circle De questions the board's reliance on Humphrey's testimony that he hoped his job at Circle De would be permanent because Cir- ele De logged through the winter, and argues that such subjective "hopes" should be disregarded. We reject this absolutist position. In Justice v. RMH Aero Logging, Inc., we stated that "[a]n injured worker's intentions at the time of injury regarding future employment are relevant to determining the reliability of the employee's past work history as a predictor of future lost income." Thus we conclude that Humphrey's testimony regarding his intentions and preferences, to which the board gave credence, cannot be considered irrelevant in determining his losses resulting from the injury. Circle De also challenges the value of other findings used by the board to support its earnings pattern finding — for example, that Humphrey was offered a job in management elsewhere, but turned it down; that prior to his 1993 hire he had performed subcontractor work for Circle De in 1992; that the amount of his earnings in 1993 demonstrated a more consistent work pattern than in the previous two years; and that he had purchased a sawmill and "considered using it to earn income." The board did not explain the relative weight it gave to each of these independent factors in reaching its conclusion. But while it may be that no one of these factors independently proves that his earnings were improving, we are satisfied that these factors, when considered in the aggregate, point toward an improving earnings potential at the time of injury and that these factors outweigh any evidence presented pointing in the opposite direction. 3. Humphrey's PTD compensation rate did not exceed the statutory maximum. When the board applies the alternative calculation under former AS 23.30.220(a)(2), the rate of compensation is subject to a ceiling amount — it "may not exceed the employee's gross weekly earnings at the time of injury." The parties agree that Humphrey earned a total of $7,752.50 during his 1993 employment with Circle De, but because they cannot agree on the number of weeks that Humphrey worked at Circle De prior to his injury, the parties dispute the amount of his weekly earnings at the time of disability. Circle De contends that Humphrey's term of employment was thirteen weeks, resulting in a gross weekly wage at the time of injury ($310.10) less than the awarded rate of compensation ($351). In contrast, Humphrey argues that he actually worked at Circle De for only nine weeks and four days before his injury, which would lead to a gross weekly wage at the time of injury ($421.18) well above his awarded compensation rate. The board agreed with Humphrey's characterization of the facts, and this finding is also supported by substantial evidence. Though Humphrey was formally hired on February 22, 1993, he argued that he did not actually begin working for approximately one month. After reviewing the evidence, the board concluded that, though Humphrey had agreed to work for Circle De on February 22, he "did not begin working, or earning a wage until nine weeks, four days prior to his injury." It also noted that the "employer was not obligated to pay the employee wages until the season could begin" and that "to calculate his earnings on time periods that he did not work [is] inherently unfair." In light of our deference to the board's findings of fact and determinations of witness credibility, we uphold the board's determination of the length of actual employment. Accordingly, Humphrey's PTD compensation rate is not excessive under former AS 23.30.220(a)(2). In sum, we affirm Humphrey's PTD benefits award. B. TTD Compensation Rate Circle De next challenges the board's setting of Humphrey's TTD weekly compensation rate at $236.55. Under former AS 23.30.220, the calculation of an employee's spendable weekly wage for PTD benefits and for TTD benefits is the same. Following the logic of Humphrey II, as explained above, in Humphrey III the board held that former AS 23.30.220(a)(1) was not an accurate predictor of Humphrey's losses, so it instead considered "the nature of the employee's work and work history" in computing Humphrey's benefit rate under former AS 23.30.220(a)(2). But the board also departed from the Himphrey II calculation because it found it "inappropriate to apply the 1998 wage rates to a period of temporary disability that spanned from 1993[to] 1998." Instead, the board calculated Humphrey's weekly earnings by multiplying his hourly wage at the time of injury ($14.00) with his estimated yearly work period (fifty hours per week and six months per year), resulting in gross weekly earnings of $364 and a weekly TTD compensation rate of $236.55. In Humphrey TV, the board also applied this rate in calculating Humphrey's retroactive PPI benefits owed by Circle De. Though the TTD rate is lower than the PTD rate, Circle De challenges the board's TTD calculation and the board's underlying-findings that Humphrey would have worked fifty hours per week and six months per year between 1993 and 1998. Circle De posits that Humphrey's 1993 earnings with Circle De support a forty-hour work week, not a fifty-hour work week. However, Circle De's calculations in this regard are deficient because they are based on its claimed employment period of thirteen weeks, and not the actual employment period, as determined by the board, of nine weeks and four days. Having already upheld the fifty-hour/six-month figures under the board's PTD calculation and the nine-plus week employment period, as above, we now conclude that the use of these employment estimations for the TTD calculation, based on Humphrey's work history and future earning potential, is supported by substantial evidence. C. The Award of Interest on Humphrey's TTD/PPI Benefits Circle De challenges three awards of interest to Humphrey by the board. First, after retrospectively increasing Humphrey's TTD benefits compensation rate, in Humphrey III the board awarded interest on all late-paid TTD benefits. Second, the board did the same in Humphrey IV with respect to late-paid PPI benefits. Third, in Humphrey IV the board concluded that Circle De was in default for its interest payments on the TTD benefits under Humphrey III, and accordingly awarded interest on the defaulted interest payments. Circle De argues that the board erred in retroactively accruing interest from the date that Humphrey was originally entitled to TTD or PPI benefits, on May 29, 1993. Circle De contends that the due date for payment for the board-calculated benefits was not when Humphrey was initially entitled to receive the benefits, but rather after the board's TTD decision in Humphrey III and PPI decision in Humphrey TV. In other words, Circle De argues that any interest on late-paid benefits does not begin to accrue until after the post-order due date has passed. We therefore consider when these benefit payments were due, which will determine the date on which interest for Humphrey began to accrue. "An employee is entitled to interest on compensation that is not paid when due." Our cases and the purposes behind interest awards support the board's decision to make the payments due retroactively to the date Humphrey was entitled to TTD and PPI benefits, May 29, 1993. We have recognized that awards of prejudgment interest in workers' compensation eases "are a way to recognize the time value of money, and they give 'a necessary incentive to employers to . release money due.' " Accordingly, we have held that a workers' compensation award "shall accrue lawful interest . from the date it should have been paid." We later reiterated the general principle in Houston Contracting, Inc. v. Phillips that interest should be awarded from the date that an employee was originally entitled to receive such benefits. There we rejected the assertion that interest should only accrue after the employer received notice of the employee's claim for increased benefits. Similarly, we have rejected an employer's argument that prejudgment interest could not be awarded on medical payments because "medical benefits have no due date" until the board has made a specific order of payment. Circle De attempts to distinguish the above line of authority by stressing the fact that the TTD and PPI benefits were retroactively increased under the alternative calculation of former AS 23.30.220(a)(2). Because this alternative calculation grants the board discretion in setting the employee's gross weekly earnings, Circle De complains that it was incapable of independently determining the compensation rate at the time of Humphrey's entitlement — "the adjusted compensation rate could not be determined by the employer, only the Board can calculate compensation under AS 23.30.220(a)(2)." We do not agree that the board's decision to use the alternative calculation — which is only done upon a showing that the normal calculation fails to accurately predict the employee's losses — should reduce or divest the employee's right to obtain interest on his late-paid benefits. Although awards of interest are intended to encourage employers to make timely payments of compensation benefits, they are not imposed to punish employers; rather, their primary function is to fairly compensate an injured worker for the time value of money lost over the period of time in which he did not have access to money that was owed to him. Moreover, even Circle De concedes that it remains able to estimate an employee's compensation rate under former AS 23.30.220(a)(2), and to distribute benefits accordingly. The risk of erroneous estimation on the part of the employer does not demand a departure from the ordinary interest rule. We conclude that the board did not err in awarding interest on late-paid TTD and PPI benefits, where the due date for these payments was set on May 29, 1993, the date on which Humphrey was originally entitled to these benefits. D. The Award of Attorney's Fees in Excess of the Statutory Minimum Lastly, Circle De argues that the board erred in granting Humphrey attorney's fees in excess of the statutory minimum without the prior filing of a fee affidavit by Humphrey's attorney. Attorney's fees for a workers' compensation claimant are governed by AS 23.30.145. Subsection (a) of this statute establishes a statutory minimum for attorney's fees: fees may not be less than twenty-five percent on the first $1,000 of compensation or part of the first $1,000 of compensation, and ten percent of all sums in excess of $1,000 of compensation. Subsection (b) provides that the board "shall make an award" for costs, including reasonable attorney's fees, if the employer fails to file timely notice of the controversy, fails to pay compensation or benefits in a timely manner, or otherwise resists payment of compensation or benefits. Detailed regulations address the application of these statutory provisions. Under 8 AAC 45.180(b), the statutory minimum set out in AS 23.30.145(a) may be departed from only upon the filing of "an affidavit itemizing the hours expended, as well as the extent and character of the work performed." If the request and affidavit are not properly provided, the board "will deny the request for a fee in excess of the statutory minimum fee, and will award the minimum statutory fee." Likewise, under 8 AAC 45.180(d)(1) the reasonable attorney's fees discussed in AS 23.30.145(b) will be awarded only if verified by an affidavit. Failure to file the proper affidavit is "considered a waiver of the attorney's right to recover a reasonable fee in excess of the statutory minimum fee under AS 23.30.145(a)" unless the board determines good cause exists .to excuse the failure to comply. The procedural requirements of both subsections can be set aside only "if manifest injustice to a party would result from a strict application of the regulation;" they may not be set aside "merely to excuse a party from failing to comply . or to permit a party to disregard the requirements of the law." In Humphrey TV the board departed from the statutory minimum and awarded Humphrey attorney's fees of thirty-five percent of the award. Since the board relied on the attorney's fees provision of AS 23.30.145(a) in augmenting the fees, the affidavit requirements of 8 AAC 45.180(b) would apply unless modified or waived under 8 AAC 45.195. The superior court remanded the issue of augmented attorney's fees back to the board for findings to support the board's decision. On remand in Humphrey VI, the board made findings to set aside the procedural requirements because they worked a "manifest injustice." The board stated: The nature, length, and complexity of the services provided by Attorney Reinhold were such to justify the award of attorney's fees in excess of the statutory minimums. The employee suffered a head injury which resulted in on-going short-term memory loss making attorney-client communication unusually difficult. This was a highly contentious dispute with complex issues. The employee's attorney Rhonda Reinhold successfully prosecuted the employee's claims. Attorney Rhonda Reinhold was instrumental in obtaining the benefits sought by the employee. She was also a strong and effective advocate for her client. The Board in Humphrey TV awarded substantial benefits including an increased PPI rate from $110 per week to $236.55 per week, interest on the retroactive PPI benefits, an award of penalty and interest on the interest employer failed to pay as directed in Humphrey III, and a supplementary order of default for benefits ordered by the board in Humphrey III. Statutory minimum fees would be inadequate in proportion to the services performed. We find the fees awarded in Humphrey IV were reasonable and necessary for the successful presentation of employee's claim. Accordingly, pursuant to 8 AAC 45.195 we find that failure to award attorney's fees in excess of the statutory minimum would result in "manifest injustice." The board reached this conclusion without the prior filing of a fee affidavit by Humphrey's counsel, and in Humphrey VI Humphrey was represented by new counsel, not the attorney who obtained the enhanced award. The superior court later upheld the board's findings. The board's conclusion regarding the inadequacy of the statutory minimum would unquestionably be sustainable if the enhanced fees were awarded on the basis of either a fee affidavit or a finding by the board of good cause excusing the filing of an affidavit. In the absence of an affidavit or a finding of good cause by the board, the only basis for upholding the award of greater than the minimum statutory fees is 8 AAC 45.195, the board's regulation permitting procedural requirements to be waived or modified in cases of manifest injustice. It appears that the board relied on this regulation, because it found "manifest injustice" would result were fees greater than the statutory minimum not awarded. In assessing the board's invocation of its power to waive or modify board regulations, we believe that it is appropriate to apply a standard that is at least as deferential as that which we apply when reviewing a trial court's decision to relax the Civil Rules pursuant to Civil Rule 94. In such cases, the trial "court's invocation of Rule 94 will only be reversed for abuse of discretion." Here, in view of the board's detailed findings as to the extent and quality of attorney Reinhold's services, and in the absence of any timely claim by the appellant that the lack of an affidavit impeded its challenge of the board's award, we are unable to conclude that the board abused its discretion in deciding to waive the affidavit requirement of 8 AAC 45.180(b). Accordingly, we affirm the superior court's decision to uphold the board's award of attorney's fees to Humphrey. V. CONCLUSION Because the PTD and TTD compensation rates set by the board were properly calculated under the law and were supported by substantial evidence, we AFFIRM these rates. Because the award of interest on Humphrey's late-paid TTD and PPI benefits began to accrue as of the date of TTD and PPI classification, we also AFFIRM the interest awards. Finally, because the board did not abuse its discretion in awarding attorney's fees, we AFFIRM that award. . There are discrepancies in the record concerning the date on which Humphrey's injury occurred. The board's decision states that the injuiy took place on May 28, 1993. The occupational injury report, which a Circle De supervisor completed on May 28, 1993 and submitted to the Alaska Department of Labor, indicates that the injury occurred on May 27, 1993. Workers' compensation filings and Humphrey's hearing brief agree that the injury occurred on May 27. However, the superior court decision, which we now review, and Circle De indicate that the injury occurred on May 23, 1993. . AWCB Decision No. 00-0140 (July 11, 2000). . Humphrey v. Circle De Lumber Co. (Humphrey II), AWCB Decision No. 00-0235 (Nov. 20, 2000). .Id. at 1, 5-6. . 882 P.2d 922 (Alaska 1994). . See infra note 32. . See Humphrey II at 8. . Id. at 8-9. . Id. at 9-10. . Humphrey v. Circle De Lumber Co. (Humphrey III), AWCB Decision No. 01-0018, 8 (Jan. 19, 2001). . Id. at 7-8. . Id. at 8-9. . Humphrey v. Circle De Lumber Co. (Humphrey IV), AWCB Decision No. 01-0140 (July 23, 2001). . Id. at 4-6. . The version of AS 23.30.220(a)(2) that was in effect provided that PTD and TTD weekly benefits may not exceed the employee's gross weekly earnings at the time of injury. See infra note 32. The board awarded weekly benefits of $350.11. Humphrey II at 8. The parties agreed that Humphrey had earned $7,752.50 in his employment with Circle De, but they disputed the length of his employment. Circle De argued that Humphrey had been employed for thirteen weeks, resulting in a gross weekly wage at the time of injury of $310.10, less than that awarded by the board; Humphrey argued that he had worked less than ten weeks, resulting in a gross weekly wage rate more than that awarded by the board. Because the board had not made a factual finding as to the length of Humphrey's employment with Circle De, Judge Wolverton remanded for additional findings. See infra Part IV.A.3. . Humphrey v. Circle De Lumber Co. (Humphrey V), AWCB Decision No. 03-0104 (May 13, 2003). . Id. at 5. The board noted that, although Humphrey signed an employment contract on February 22, 1993, he did not begin work until approximately one month later, which led to a period of employment of nine weeks, not thirteen weeks as contended by Circle De. Id. at 4-5. . Id. . Humphrey v. Circle De Lumber Co. (Humphrey VI), AWCB Decision No. 03-0134, 1 (June 12, 2003). . Id. at 5. . Appellate Rule 202(a) provides: "An appeal may be taken to the supreme court from a final judgment entered by the superior court ." See also City & Borough of Juneau v. Thibodeau, 595 P.2d 626, 629 (Alaska 1979) ("[A] decision of a superior court, acting as an intermediate appellate court, which reverses the judgment of the court below or the decision of an administrative agency and remands for further proceedings, is a non-final order of the superior court."). . Bradbury v. Chugach Elec. Ass'n, 71 P.3d 901, 905 (Alaska 2003). . Robinson v. Municipality of Anchorage, 69 P.3d 489, 493 (Alaska 2003). . Alyeska Pipeline Serv. Co. v. DeShong, 77 P.3d 1227, 1231 (Alaska 2003). . DeNuptiis v. Unocal Corp., 63 P.3d 272, 277 (Alaska 2003). . Robinson, 69 P.3d at 493. . Robertson v. Am. Mech., Inc., 54 P.3d 777, 779 (Alaska 2002) (internal quotation omitted). . Bradbury, 71 P.3d at 905. . Williams v. Abood, 53 P.3d 134, 139 (Alaska 2002). . Id. . AS 23.30.180(a). . Alaska Statute 23.30.220 was revised in 1995. See ch. 75, § 9-10, SLA 1995. (The pre-1995 version of AS 23.30.220(a) can be found in ch. 79, § 37, SLA 1988.) Because the injury occurred in 1993, the board properly applied the statute in effect during 1993; accordingly, we review the board's decisions under this statute. Thompson v. United Parcel Serv., 975 P.2d 684, 688 (Alaska 1999) (applying version of workers' compensation statute in effect at time of injury). . 882 P.2d 922 (Alaska 1994). . Id. at 928-29; see also Thompson, 975 P.2d at 689. . Gilmore, 882 P.2d at 924 n. 1 (quoting former AS 23.20.220(a)(2)). . Humphrey II, AWCB Decision No. 00-0235, 7 (Nov. 20, 2000). .Id. Humphrey's earnings from 1983-1993 were as follows: Year Earnings 1983 $12,907.41 1984 $ 6,294.20 1985 $13,099.63 1986 $21,676.69 1987 $14,349.41 1988 $15,584.33 1989 $19,195.28 1990 $20,680.98 1991 $ 3,815.14 1992 $ 5,773.80 1993 (injury) $ 7,752.00 Id. at 2-4. Humphrey's compensation rate was originally calculated under AS 23.30.220(a)(1) by dividing his gross earnings in the years 1991 and 1992 — his two lowest earnings years — by one hundred. Id. at 2. . Id. at 8. The board considered the following evidence in concluding that Humphrey's history of temporary and seasonal jobs may be changing into a "more consistent work pattern": Circle De logged year round; Humphrey testified that he hoped his job would be more than temporary; Humphrey's work for Kenai Pacific Lumber Company in 1992 was actually subcontracting work for Circle De; Humphrey earned almost as much during part of the year at Circle De as he had earned during the entirety of the two previous years; and Humphrey had purchased a sawmill prior to his injury and received a job offer in management elsewhere. Id. . Id. . Id. . Id. . 786 P.2d 916 (Alaska 1990). . Id. at 918. . Humphrey II at 7-9. . Id. at 8. Indeed, in rejecting the ordinary calculation for the compensation rate under AS 23.30.220(a)(1) and following the alternative method under AS 23.30.220(a)(2), the board concluded that Humphrey's actual past earnings were not an accurate predictor of his losses. . Id. at 4. . Id. at 8. . Id. at 4. . 42 P.3d 549, 558 (Alaska 2002). . Humphrey II at 5, 8. . Circle De's calculation follows the board's approach in calculating gross weekly wages: assuming a six-month period of employment over the course of a year and dividing his projected yearly income at Circle De by fifty weeks. Humphrey II at 8. . Humphrey V, AWCB Decision No. 03-0104, 4-5 (May 13, 2003). . Id. at 4. . Id. at 5. . Id. . See Robertson v. Am. Mech., Inc., 54 P.3d 777, 779 (Alaska 2002). . Alaska Statute 23.30.185 provides that compensation for a worker's TTD benefits shall be eighty percent of the employee's spendable weekly wage. . Humphrey III, AWCB Decision No. 01-0018, 7 (Jan. 19, 2001). . Id. . Id. at 8. . Humphrey IV, AWCB Decision No. 01-0140, 4 (July 23, 2001). . Circle De also proposes that the board should have calculated Humphrey's spendable weekly wage simply by taking his average wage over the past ten years. But Circle De makes no showing that its backward-looking approach was superior to the board's decision to use Humphrey's actual hourly wage at the time of injury. . See supra Part IV.A.3. . Humphrey III at 8. . Humphrey IV at 4. . Id. at 5. . Dougan v. Aurora Elec., Inc., 50 P.3d 789, 794 (Alaska 2002); 8 AAC 45.142 ("If compensation is not paid when due, interest must be paid at the rate established in AS 45.45.010 for an injury that occurred before July 1, 2000 ."). . Childs v. Copper Valley Elec. Ass'n, 860 P.2d 1184, 1191 (Alaska 1993) (quoting Moretz v. O'Neill Investigations, 783 P.2d 764, 766 (Alaska 1989)). . Land & Marine Rental Co. v. Rawls, 686 P.2d 1187, 1192 (Alaska 1984) (emphasis added). . 812 P.2d 598 (Alaska 1991). . Id. at 602. . Childs, 860 P.2d at 1191. . Because we uphold the board's interest awards, we also uphold the board's imposition of a penalty under AS 23.30.155(f) against Circle De for the defaulted interest payments on Humphrey's TTD benefits. Humphrey IV, AWCB Decision No. 01-0140, 5 (July 23, 2001). Circle De's contention regarding this penalty recognizes that the propriety of the penalty is contingent on the propriety of the award of interest. Humphrey II, AWCB Decision No. 00-0235, 5-6 (Nov. 20, 2000). . AS 23.30.145(a) provides: Fees for legal services rendered in respect to a claim are not valid unless approved by the board, and the fees may not be less than 25 percent of the first $1,000 of compensation or part of the first $1,000 of compensation, and 10 percent of all sums in excess of $1,000 of compensation. When the board advises that a claim has been controverted, in whole or in part, the board may direct that the fees for legal services be paid by the employer or carrier in addition to compensation awarded; the fees may be allowed only on the amount of compensation controverted and awarded. When the board advises that a claim has not been controverted, but further advises that bona fide legal services have been rendered in respect to the claim, then the board shall direct the payment of the fees out of the compensation awarded. In determining the amount of fees tire board shall take into consideration the nature, length, and complexity of the services performed, transportation charges, and the benefits resulting from the services to the compensation beneficiaries. . AS 23.30.145(b) provides: If an employer fails to file timely notice of controversy or fails to pay compensation or medical and related benefits within 15 days after it becomes due or otherwise resists the payment of compensation or medical and related benefits and if the claimant has employed an attorney in the successful prosecution of the claim, the board shall make an award to reimburse the claimant for the costs in the proceedings, including a reasonable attorney fee. The award is in addition to the compensation or medical and related benefits ordered. . Although we have previously noted that subsections (a) and (b) are construed separately {see Haile v. Pan American, 505 P.2d 838, 840 (Alaska 1973)), they are not mutually exclusive. Rather, in a controverted case, the claimant is entitled to a percentage fee under subsection (a) but may seek reasonable fees under subsection (b). In prior cases we have looked to hourly measures of reasonable compensation, even though the cases qualified for treatment under subsection (a). See, e.g., Bailey v. Litwin Corp., 780 P.2d 1007, 1011 (Alaska 1989) (affirming board's conclusion that claimant was not limited to statutory minimum fee calculated under subsection (a), but rather claimant was entitled to additional reasonable compensation). . This subsection provides: A fee under AS 23.30.145(a) will only be awarded to an attorney licensed to practice law in this or another state. An attorney seeking a fee from an employer for services performed on behalf of an applicant must apply to the board for approval of the fee; the attorney may submit an application for adjustment of claim or a petition. An attorney requesting a fee in excess of the statutory minimum in AS 23.30.145(a) must (1) file an affidavit itemizing the hours expended, as well as the extent and character of the work performed, and (2) if a hearing is scheduled, file the affidavit at least three working days before the hearing on the claim for which the services were rendered; at the hearing, the attorney may supplement the affidavit by testifying about the hours expended and the extent and character of the work performed after the affidavit was filed. If the request and affidavit are not in accordance with this subsection, the board will deny the request for a fee in excess of the statutory minimum fee, and will award the minimum statutory fee. . 8 AAC 45.180(b). .8 AAC 45.180(d) provides: The board will award a fee under AS 23.30.145(b) only to an attorney licensed to practice law under the laws of this or another state. (1) A request for a fee under AS 23.30.145(b) must be verified by an affidavit itemizing the hours expended as well as the extent and character of the work performed, and, if a hearing is scheduled, must be filed at least three working days before the hearing on the claim for which the services were rendered; at hearing the attorney may supplement the affidavit by testifying about the hours expended and the extent and character of the work performed after the filing of the affidavit. Failure by the attorney to file the request and affidavit in accordance with this paragraph is considered a waiver of the attorney's right to recover a reasonable fee in excess of the statutory minimum fee under AS 23.30.145(a), if AS 23.30.145(a) is applicable to the claim, unless the board determines that good cause exists to excuse the failure to comply with this section. . 8 AAC 45.180(d)(1). . 8 AAC 45.195. . Humphrey v. Circle De Lumber Co. (Humphrey IV), AWCB Decision No. 01-0140, 6 (July 23, 2001). . 8 AAC 45.195 provides: A procedural requirement in this chapter may be waived or modified by order of the board if manifest injustice to a party would result from a strict application of the regulation. However, a waiver may not be employed merely to excuse a party from failing to comply with the requirements of law or to permit a party to disregard the requirements of law. . Humphrey VI, AWCB- Decision No. 03-0134 (June 12, 2003). . Id. at 5-6. . Id. at 3. . 8 AAC 45.180(b). . 8 AAC 45.180(d)(1). . City & Borough of Juneau v. Comm'l Union Ins. Co., 598 P.2d 957, 960 (Alaska 1979). .Circle De did not raise the argument that the lack of an attorney's fees affidavit prevented it from even challenging the award until its reply brief in this court.

8436096

Darrin HOTRUM, Appellant, v. STATE of Alaska, Appellee

Hotrum v. State

2006-03-10

No. A-9020

965

970

130 P.3d 965

130

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T18:44:20.949540+00:00

CAP

Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

Darrin HOTRUM, Appellant, v. STATE of Alaska, Appellee.

Darrin HOTRUM, Appellant, v. STATE of Alaska, Appellee. No. A-9020. Court of Appeals of Alaska. March 10, 2006. Verne E. Rupright, Wasilla, for the Appellant. Kenneth J. Diemer, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

2638

16109

OPINION COATS, Chief Judge. Darrin Hotrum was convicted of misconduct involving a controlled substance in the fourth degree, a class C felony, for possessing more than twenty-five marijuana plants. Hotrum entered a no contest plea pursuant to Cooksey v. State, preserving two issues for appeal. In his first issue, Hotrum claims that the police found the marijuana plants following an unlawful warrantless entry and search of his residence. We uphold Superior Court Judge Eric Smith's ruling that the police entry and search of Hotrum's residence was justified under the emergency aid exception to the general warrant requirement. In his second issue, Hotrum points out that, although he possessed more than twenty-five marijuana plants, which under the Alaska Statutes constitutes a felony, he actually possessed little more than two ounces of dried marijuana. He argues that the Alaska Statutes are in direct conflict with the Alaska Supreme Court's decision in Ravin v. State. In Ravin, the Alaska Supreme Court held that the privacy provision of the Alaska Constitution, article I, § 22, protects the right of an adult to possess a small amount of marijuana in his home for personal use. Hotrum contends that, because the plants he possessed totaled only a little over two ounces of marijuana, prosecution of his case contravenes Ravin. We conclude that the legislature has the power to set reasonable limits on the amount of marijuana that people may possess for personal use in their homes. We therefore conclude that criminalization of the possession of twenty-five or more marijuana plants, regardless of the weight of the marijuana in its processed form, does not conflict with Ravin. Factual and procedural background On October 3, 2003, Alaska State Trooper dispatch received a 911 call reporting that there were gunshots and yelling coming from a red house off Piccadilly Road in Houston, Alaska. At approximately 10:19 p.m., a dispatcher relayed this information to Alaska State Troopers Howard Anthony Peterson and Odean Farnhan Hall III. Troopers Hall and Peterson responded to the call. The troopers parked their patrol vehicle dowm the street from where they believed the house was located. As the troopers began their approach to the house they contacted a man approximately two houses down from the suspected residence. The man told the troopers that gun shots and yelling were coming from the red house two houses down on the right. From the roadway the troopers could hear very loud music coming from the house. The troopers went down the roadway and approached the house. They saw vehicles in the yard and light emanating from an arctic entryway. The door was standing wide open and there was a key in the deadbolt with the lock turned. Trooper Peterson and Trooper Hall made repeated attempts to announce their presence, yelling "state troopers. Is anybody there?" The troopers made attempts to yell over the music and to announce themselves between songs. There were lights on in the house. The troopers had requested backup that arrived as they were trying to make contact through the open entryway. Trooper Hall testified that, based on the information he had available to him at that point, he was not sure if something had happened inside or outside the home or whether someone needed his assistance, but that he believed that something was going on in the house. He added that when walking up to the house he did not know whether there was an ongoing emergency. But given the fact that there had been a report of shots fired and yelling, and the presence of a door standing wide open in the middle of the night, he felt that something was going on that required him to ensure that nobody was being harmed. At this point Troopers Hall and Peterson, along with Alaska State Troopers Paul Anthony Wezgryn and Mike Ingram, entered the house with their weapons drawn. Upon entry into the arctic entryway, Trooper Peterson observed a doorway covered with a blanket directly in front of him. Behind the blanket was a closed door. To the left of Trooper Peterson was an open hallway that led to the living room with a loft and a kitchen in the back. Trooper Peterson instructed Trooper Ingram to check the doorway with the blanket covering it while he, Trooper Wezgryn and Trooper Hall went left, into the living room area. Behind the blanket and closed door Trooper Ingram discovered forty-three live marijuana plants. In the living room, Troopers Peterson and Hall found a bed with two feet protruding from under a sheet. With the music blaring, Trooper Hall announced their presence and there was no reaction. Trooper Peterson testified that at that point he believed they were dealing with a homicide. The troopers noticed a semi-automatic handgun and some bullets lying near the bed. With their weapons trained on the bed, the troopers shut off the stereo and removed the sheet from the body it was covering and again announced their presence. The troopers then "cleared" the rest of the room, checking the spaces that their line of sight did not cover. The individual, who turned out to be sleeping, was Darrin Hotrum, who was fully clothed and lying face up. Upon waking, Hotrum immediately asked the troopers why they were there and told them that they were not allowed in his home, and that it was a private home. Subsequent proceedings The troopers arrested Hotrum at his residence. The State charged him with several offenses arising out of his possession of marijuana. Hotrum filed a combined motion to suppress the evidence and to dismiss the indictment. In his motion, Hotrum claimed that the troopers' warrantless entry of his home was illegal because it failed to fall within any of the recognized exceptions to the warrant requirement. Hotrum filed, an additional motion to dismiss on the ground that the warrantless seizure of his marijuana plants had resulted in the recovery of only 2.02 ounces of consumable marijuana. He argued that his possession of this amount of marijuana was within the protection of Ravin. Judge Smith conducted an evidentiary hearing. Following the hearing, he denied Hotrum's motion to suppress. Judge Smith found that the troopers' actions were reasonable under the emergency aid doctrine. Judge Smith reasoned that there was probable cause to believe that the emergency was located at Hotrum's residence based on the report from trooper dispatch and the gentleman on the road, and the loud music and open door. Additionally, Judge Smith concluded that the search was not a pretext to conduct a warrantless search. Judge Smith also denied Hotrum's claim that his conduct was protected under Ravin. Hotrum later entered a no contest plea to a single count of misconduct involving a controlled substance in the fourth degreé for possession of twenty-five or more marijuana plants. This appeal followed. Why we uphold Judge Smith's finding that the police search of Hotrum's residence was lawful under the emergency aid doctrine The emergency aid doctrine is a well-recognized exception to the general rule that the police need a warrant to conduct a search. The emergency aid doctrine allows the warrantless entry of a dwelling "when an officer has reasonable grounds to believe that there is an immediate need to take action to prevent death or to protect persons or property from serious injury." For the emergency aid doctrine to be applicable in a given case, three conditions must be met: (1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property. (2) The search must not be primarily motivated by intent to arrest and seize evidence. (3) There must be some reasonable basis approximating probable cause to associate the emergency with the area or the place to be searched. In his findings, Judge Smith concluded that the troopers had reasonable grounds to believe, and did believe, that when they approached Hotrum's residence there was an emergency that required them to enter the residence and investigate. Judge Smith's findings are supported by the record and support his decision to deny Hotrum's motion to suppress. Why we reject Hotrum's claim that his possession of marijuana was protected by the supreme court's decision in Ravin v. State In Ravin, the Alaska Supreme Court held that the privacy provision of the Alaska Constitution, article I, § 22, protected the right of an adult to possess a limited amount of marijuana in his home for purely personal non-commercial use. The court stated that its decision did not protect possession of marijuana in the home in amounts which were indicative of an intent to sell the drug. In 1982, the legislature adopted statutes which modified the state's marijuana possession laws. These statutes prohibited a person from possessing four ounces or more of marijuana but did not criminalize possession of less than four ounces. The commentary to the legislation stated that the legislators' intent was to define the amount of marijuana an adult could possess in the home without violating the law. In Walker v. State, we had before us a case where the defendant was convicted of possession of more than one-half pound of marijuana. We upheld that conviction, holding that the legislature could reasonably regulate the personal possession of marijuana in the home over certain amounts. We held that this regulation did not conflict with Ravin even if the defendant had no intent to sell the drug. In Pease v. State, we discussed the legislative history behind the statute that criminalized the possession of twenty-five or more marijuana plants. That statute was enacted after police officers asked the legislature to address the problem police faced after they raided a marijuana grow and found only growing, unharvested plants. Specifically, under the statutory definition of "marijuana," the police could not simply cut the plants down and weigh them. To establish the weight of marijuana seized under the statute, the police had to cut down the plants, dry them, and then cut the leaves, buds, and flowers from the stalks. The legislature's solution was to enact AS 11.71.040(a)(3)(G), the statute under which Hotrum was prosecuted, which prohibits possession of twenty-five or more marijuana plants. The House Judiciary Committee adopted the suggestion of an assistant attorney general that twenty-five average marijuana plants would, after processing, weigh over one pound. The assistant attorney general specifically addressed the question of whether it would be fair to prosecute a person for possession of twenty-five small marijuana plants. She suggested that the small plants had the potential of growing into much larger plants, and therefore the fact that the small plants did not weigh much and did not produce very much usable marijuana was immaterial. It appears that the legislature adopted this reasoning. In Noy v. State, we confronted a statute that was enacted when the voters of Alaska approved a ballot proposition that amended the Alaska statutes to criminalize possession of any amount of marijuana. We concluded that this statute was unconstitutional because it prohibited the possession of small amounts of marijuana by adults in their homes for personal use. Therefore, it contravened the constitutional right of privacy as interpreted by the Alaska Supreme Court in Ra-vin After finding the statute unconstitutional, we left standing the former statutes that the initiative had superseded. Hotrum concedes that the troopers found forty-three live marijuana plants in his home. Under AS 11.71.040(a)(3)(G), Hotrum's possession of more than twenty-five live marijuana plants made his offense a class C felony. But Hotrum points out that when the troopers processed these plants by drying them, stripping them, and weighing the leaves and buds, the total amount of marijuana he possessed weighed only slightly more than two ounces. Hotrum argues that, but for AS 11.71.040(a)(3)(G), his possession of this amount of marijuana would not be a crime. And had he been convicted of possession of four ounces or more of marijuana under the other statutes, his offense would have been a class B misdemeanor. Hotrum argues that prosecuting him for possessing approximately two ounces of marijuana is inconsistent with Ravin and Noy because it constitutes a prosecution for possession of a small amount of marijuana in his home for personal use. In Ravin, the Alaska Supreme Court did not set out any specific amount of marijuana that an adult could lawfully possess. In Walker, we recognized that "the legislature nevertheless has the power to set reasonable limits on the amount of marijuana that people can possess for personal use in their homes." As we have previously discussed, the legislature has passed statutes intended to provide a clear line so that the citizens of the state will know what conduct is prohibited. We have generally found the legislature's efforts to be consistent with Ravin. In particular, in Pease, we discussed the legislative history of the statute that made a felony offense of possession of twenty-five or more marijuana plants. The legislative history showed the legislature considered the possibility that a person might possess twenty-five or more marijuana plants but that these plants might constitute a small amount of marijuana. The legislature concluded that the small marijuana plants could grow to become a substantial amount of marijuana. The legislature decided that the defendant should not benefit from the fact that he was prosecuted before the plants could grow to that level. We conclude that this is a judgment that the legislature was entitled to make. In drafting AS 11.71.040(a)(3)(G), the legislature adopted a clear and objective line which appears to be consistent with the Alaska Supreme Court's Ravin decision. The judgment of the superior court is AFFIRMED. . AS 11.71.040(a)(3)(G), (d). . 524 P.2d 1251 (Alaska 1974). . 537 P.2d 494 (Alaska 1975). . Id. at 504. . Williams v. State, 823 P.2d 1, 3 (Alaska App.1991) (citing Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290 (1978); Schraff v. State, 544 P.2d 834, 840-41 (Alaska 1975); Gallmeyer v. State, 640 P.2d 837, 841 (Alaska App.1982)). . Williams, 823 P.2d at 3 (citing Gallmeyer, 640 P.2d at 841-43). 7. Williams, 823 P.2d at 3 (citing Gallmeyer, 640 P.2d at 841-43 and Johnson v. State, 662 P.2d 981, 985-86 (Alaska App.1983) (listing eleven factors relevant in determining if the emergency aid doctrine applies)). . 537 P.2d at 504. . Id. at 511. . Walker v. State, 991 P.2d 799, 802 (Alaska App.1999). . Former AS 11.71.060(a)(4). . Commentary and Section Analysis for the 1982 Revision of Alaska's Controlled Substance Laws, Conference Committee Substitute for Senate Bill No. 190 at 19. . 991 P.2d 799. . Id. at 803. . Id. . 27 P.3d 788 (Alaska App.2001). . See AS 11.71.040(a)(3)(G). . Pease, 27 P.3d at 789. . See AS 11.71.900(14) ("marijuana" means only "the seeds, and leaves, buds, and flowers of the plant (genus) Cannabis, whether growing or not; it does not include the resin or oil extracted from any part of the plants, [and] it does not include the stalks of the plant[.]"); AS 11.71.080 ("[f]or purposes of calculating the aggregate weight of a live marijuana plant, the aggregate weight shall be the weight of the marijuana when reduced to its commonly used form."). . Pease, 27 P.3d at 789. . Id. at 790. . Id. . Id. . 83 P.3d 538 (Alaska App.2003). . Id. at 542. . Id. . Id. . Id. at 543. . AS 11.71.060(a)(1), (b). . 991 P.2d at 802. . Id. at 803. . Id.; Noy, 83 P.3d at 543. . Pease, 27 P.3d at 790.

10340125

David L. CORNWALL, Appellant, v. STATE of Alaska, Appellee

Cornwall v. State

1995-09-12

No. A-5381

336

340

902 P.2d 336

902

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:43:34.517492+00:00

CAP

Before BRYNER, C.J., COATS and MANNHEIMER, JJ.

David L. CORNWALL, Appellant, v. STATE of Alaska, Appellee.

David L. CORNWALL, Appellant, v. STATE of Alaska, Appellee. No. A-5381. Court of Appeals of Alaska. Sept. 12, 1995. William R. Satterberg, Jr., Fairbanks, for appellant. W.H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for appellee. Before BRYNER, C.J., COATS and MANNHEIMER, JJ.

1650

10820

OPINION BRYNER, Chief Judge. David L. Cornwall entered a plea of no contest to one count of sexual abuse of a minor in the second degree, in violation of AS 11.41.436(a)(3). The offense is a class B felony. AS 11.41.436(b). At the original sentencing hearing, Superior Court Judge Jay Hodges initially sentenced Cornwall to a term of six years with four years suspended. The following day, Judge Hodges notified the parties that he had misspoken in imposing Cornwall's sentence and had meant to impose a term of six years with two years suspended, not six years with four years suspended. After a further hearing, Judge Hodges determined that Cornwall's sentence could properly be modified to effectuate the originally intended sentence. Judge Hodges entered a modified judgment sentencing Cornwall to six years with two years suspended. Cornwall appeals, contending that the increased sentence violates his right to protection against double jeopardy. We reverse. The applicable law is clear: Once a sentence is meaningfully imposed, the constitutional provisions prohibiting double jeopardy bar the court from increasing the sentence. Sonnier v. State, 483 P.2d 1003, 1005 (Alaska 1971). A sentence is meaningfully imposed when it is legally imposed and not subject to change under the Alaska Criminal Rules. Shagloak v. State, 582 P.2d 1034, 1037 (Alaska 1978); see also Dentler v. State, 661 P.2d 1098 (Alaska App.1983). The court in Shagloak held that a sentence was not subject to change under the criminal rules unless there existed "an objectively ascertainable mistake — a mistake which can be determined by contemporaneous record evidence...." 582 P.2d at 1038. Merry v. State, 752 P.2d 472, 474 (Alaska App.1988). An "objectively ascertainable" mistake occurs when the contemporaneous record of the sentencing hearing reveals an "obvious mistake[ ]" — that is, when the sentence initially imposed "obviously conflict[s] with the intention of the court" and is not "logically possible," Shagloak v. State, 582 P.2d at 1038. Before a sentence may be deemed mistaken and increased, the contemporaneous record must leave "no reasonable doubt as to the intention of the sentencing court." Coates v. State, 721 P.2d 655, 657 (Alaska App.1986) (quoting Chase v. State, 479 P.2d 337, 340 (Alaska 1971)). In the present case, Cornwall, a first felony offender, was not subject to presumptive sentencing. The offense for which he was convicted, a class B felony, carried a second offense presumptive term of four years. The sentencing court could not exceed this term without formally finding statutory aggravating factors or extraordinary circumstances warranting three-judge panel referral. See Wylie v. State, 797 P.2d 651, 662 (Alaska App.1990); Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981). The state alleged, and Judge Hodges found, four aggravating factors. In imposing sentence, Judge Hodges noted that Cornwall's prospects for rehabilitation appeared unusually favorable but found that his conduct was exceptionally serious, placing his case within the second benchmark category for first-offense class B felonies. See State v. Jackson, 776 P.2d 320, 326 (Alaska App.1989) ("For an offense that is exceptionally aggravated . a term of up to six years of unsus-pended incarceration . would be justified.") Judge Hodges sentenced Cornwall as follows: The court feels it is necessary to impose a period of incarceration. The court feels it is necessary to have some probation, a suspended time with a substantial probationary period. The court finds it is necessary to require Mr. Cornwall to complete a . sexual offender program as well as aftercare when he's released from incarceration. The court is going to impose a period of six years and suspend four. He's to be placed on probation for a period of five years upon his release from custody.... [T]he court will recommend that he be incarcerated in the facility so that he may participate in sex offender treatment. The following day, Judge Hodges realized that he had misspoken — that he had meant to sentence Cornwall to a term of six years with two years suspended. An additional hearing was scheduled. After allowing the parties to argue whether the originally imposed sentence was subject to correction, Judge Hodges found that it was: In respect to the sentence, it was fully the intent at the time of the sentence — the court's sentencing remarks with respect to the aggravators and so forth would clearly indicate objectively that it would not be a four year suspended sentence. The court misspoke when it said that and, therefore, the court is going to impose a six year sentence with two years suspended. The rest of the conditions will remain the same. On appeal, Cornwall argues that his increased sentence was barred by double jeopardy. The state responds that the contemporaneous record of the original sentencing hearing reveals an objectively ascertainable mistake and that Cornwall's sentence was therefore subject to correction. The state points to three areas in which the court's mistake is objectively discernible. First, the state argues that the sentencing court's finding of four aggravating factors manifested its intention to impose an Unsuspended sentence equalling or exceeding the four-year Austin limit. But the finding of aggravating factors pursuant to Wylie merely made a sentence in excess of the Austin limit permissible; it did not make such a sentence mandatory, or even necessarily desirable. As in other sentencing contexts, the existence of aggravating factors established under Wylie does not automatically call for any particular sentencing adjustment. Rather, the extent to which a sentence should actually be affected by aggravating factors is a matter to be determined by the sentencing court based on the totality of the circumstances in each ease. Particularly in light of the sentencing court's findings concerning Cornwall's favorable prospects for rehabilitation, its decision to impose a sentence of six years with four years suspended was "logically possible" and did not "obviously conflict" with its finding of four aggravating factors. Second, the state argues that Judge Hodges' placing of Cornwall's case within the second benchmark sentencing category of State v. Jackson evinced the court's intent to impose an unsuspended term of four, rather than two years. Under Jackson's second category, the court may, but is not required to, impose a sentence of up to six years' unsuspended incarceration for an exceptionally aggravated first offense class B felony. 776 P.2d at 326. Before deciding upon a sentence, a judge who finds that exceptionally aggravated conduct warrants classifying an offender's ease within the second Jackson benchmark must proceed to consider the totality of the circumstances, including the offender's potential for rehabilitation. Id. at 327. And in balancing the totality of the circumstances, the court is empowered with discretion to impose a sentence that falls well below the ceiling for the second category benchmark. Again, given Cornwall's prospects for rehabilitation, the sentencing court's original decision to impose a term of six years with four suspended does not obviously conflict with its decision, to rank the case, based on the seriousness of Cornwall's conduct, within Jackson's second benchmark category. Third, the state maintains that the sentencing court's intent to impose a four-year unsuspended term is plain in light of its recommendation that Cornwall receive sexual offender treatment while incarcerated. The state points to evidence in the sentencing record indicating that sexual offenders cannot be classified to the Hiland Mountain sexual offender treatment program unless they receive at least four years of unsuspended incarceration. But the record on this score is decidedly ambiguous, for Judge Hodges did not order or recommend that Cornwall be classified to the Hiland Mountain program. Cornwall's psychologist, Lawrence Good-ing, testified that the Hiland Mountain treatment program might in theory be the best prison program for Cornwall's treatment needs, but expressed reservations about whether Cornwall could ever actually participate in the program's group treatment setting, since Cornwall had been an Alaska State Trooper. Implicit in Gooding's testimony is the suggestion that other treatment options were available and might be preferable. Notably, the sentencing court did not order Cornwall to participate in any particular treatment program; indeed, the court did not unequivocally specify whether Cornwall was required to pursue treatment while incarcerated. Under the circumstances, the sentencing court's treatment recommendation did not clearly demonstrate its intent to sentence Cornwall to an unsuspended four-year term. The contemporaneous record thus reveals no irreconcilable inconsistencies or obvious anomalies. Cornwall's sentence, as originally imposed, was neither impermissible nor irrational: it was "logically possible." Shagloak, 582 P.2d at 1038. A reasonable person, fully informed of the background of the case and the applicable law, but reviewing the contemporaneous record objectively and without the benefit of the sentencing court's subsequent explanation of its subjective purpose, could certainly entertain a reasonable doubt as to whether the court misspoke in imposing a term of six years with four years suspended. Although the circumstances relied on by the state, viewed in retrospect, provide strong evidence to corroborate the sentencing court's explanation of its original intention, they do not, standing apart from the court's explanation, reveal an "objectively ascertainable mistake." Id. In short, Cornwall's, original sentence was lawfully imposed; once lawfully imposed, it could not later be increased. "[T]he Constitution was designed as much to prevent the criminal from being twice punished for the same offense as from being twice tried for it." Ex parte Lange, 85 U.S. (18 Wah.) 163, 173, 21 L.Ed. 872 (1873), quoted in Sonnier v. State, 483 P.2d 1003, 1004 (Alaska 1971). The corrected judgment is VACATED. This case is REMANDED with directions to reinstate the original judgment. . In relevant part, Judge Hodges stated that he found it necessary "to require Mr. Cornwall to complete . a sexual offender program as well as aftercare when he's released from incarceration."

10343592

Dana KOPANUK, Petitioner, v. AVCP REGIONAL HOUSING AUTHORITY, Respondent

Kopanuk v. AVCP Regional Housing Authority

1995-09-15

No. S-6432

813

817

902 P.2d 813

902

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:43:34.517492+00:00

CAP

Before MOORE, C.J., RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

Dana KOPANUK, Petitioner, v. AVCP REGIONAL HOUSING AUTHORITY, Respondent.

Dana KOPANUK, Petitioner, v. AVCP REGIONAL HOUSING AUTHORITY, Respondent. No. S-6432. Supreme Court of Alaska. Sept. 15, 1995. James J. Davis, Jr. and Deborah Reichard, Alaska Legal Services Corporation, Bethel, and Carol H. Daniel and Joseph D. Johnson, Alaska Legal Services Corporation, Anchorage, for petitioner. Kim Dunn, Birch, Horton, Bittner & Cher-ot, Anchorage, for respondent. W. Michael Stephenson, Jermain, Dunna-gan & Owens, Anchorage, for amicus curiae Copper River Basin Regional Housing Authority. James E. Torgerson, Assistant U.S. Attorney, and Robert C. Bundy, United States Attorney, Anchorage, and Althea M. Forres-ter, Attorney, and Nelson A. Diaz, General Counsel, Housing & Urban Dev., Washington, DC, for amicus curiae United States. Before MOORE, C.J., RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

1712

10833

OPINION COMPTON, Justice. I. INTRODUCTION Dana Kopanuk entered into a contract regarding home occupancy with the Association of Village Council Presidents Regional Housing Authority (AVCP RHA). Upon breach by Kopanuk, AVCP RHA initiated a forcible entry and detainer (FED) action in district court. Kopanuk challenged the district court's subject matter jurisdiction, arguing that equitable interests were at issue. He asserted that the contract was not a lease with an option to purchase, but rather an installment contract for sale of real property. The district court denied his challenge and the superior court affirmed. We granted Kopanuk's petition for hearing, Appellate Rule 302(b)(1), and now reverse. II. FACTS AND PROCEEDINGS In 1982 Kopanuk entered into an agreement with AVCP RHA regarding acquisition of a home. This agreement is titled a "Mutual Help and Occupancy Agreement" (MHOA). The agreement, while signed with a state agency, is part of a federal Housing and Urban Development (HUD) program to aid low-income Indian and Native families under the Indian Housing Act, P.L. No. 100-358. AVCP RHA was chartered in order to provide low-cost housing in certain villages. AS 18.55.995, .996. The MHOA is a form contract provided by HUD. HUD requires the MHOA to be used in all cases where the agency is receiving Mutual Help and Occupancy (MHO) funds. The MHOA requires a non-refundable land contribution, which in this case was contributed by a Native corporation. The MHOA is self-described as a lease, although it contains provisions typical of both installment contracts and leases. See infra § II.B. Monthly payments are required. A minimum monthly payment goes to an administrative charge, and payments over this amount are credited to an "Equity Payments Account." The required monthly payment is adjusted for each contractee, and depends on his or her income. Voluntary overpayments are credited to another equity payments account. The home can be purchased at any time if several conditions are met. The purchase price declines over 25 years, eventually reaching zero. Upon termination, amounts in equity payments accounts will be refunded to the homebuyer after deducting amounts necessary to make repairs or cover unpaid required monthly payments. In either 1991 or 1992, Kopanuk fell behind in his payments. He also left the home for an extended period, an alleged breach of the MHOA. In mid-1992 AVCP RHA filed an FED action in district court in Bethel seeking to evict Kopanuk. At the hearing, the parties negotiated a settlement. This settlement was entered as a Conditional Order for Possession. The order provided that AVCP RHA would recover possession unless Kopanuk paid his back payments, returned to Mountain Village, minimized the noise from the house, and "actively communicate[d] and cooperate[d]" with AVCP RHA. Kopanuk failed to return to Mountain Village and AVCP RHA prepared to enforce the order. In April 1993 Kopanuk filed a Civil Rule 60(b) motion to vacate the order. He challenged the subject matter jurisdiction of the district court, arguing that the agreement was not a lease but rather a mortgage, something not cognizable in an FED action. The district court denied Kopanuk's motion, holding that the MHOA was a lease/purchase agreement, properly the subject of an FED proceeding. On appeal to the superior court, the district court judgment was affirmed. The court held that the MHOA was a lease/option agreement, with no guarantee of eventual vesting of title in Kopanuk. We granted Kopanuk's petition for hearing. III. DISCUSSION A. Standard of Review The standard of review is de novo. In Kennecorp Mortgage & Equities, Inc. v. First National Bank of Fairbanks, 685 P.2d 1232 (Alaska 1984), appellants challenged the trial court's denial of a Rule 60(b)(4) motion to set aside the default judgment. We noted that, "In reviewing the denial of a Rule 60(b)(4) motion, this court does not defer to the discretion of the trial court." Id. at 1236. We give no deference to the superior court because "the validity of a judgment is strictly a question of law." Id. (quoting Aguchak v. Montgomery Ward Co., 520 P.2d 1352, 1354 (Alaska 1974)). According to Perry v. Newkirk, 871 P.2d 1150, 1153 n. 5 (Alaska 1994), "[vjoidness under 60(b)(4) also encompasses the concept of lack of subject matter jurisdiction." Interpretation of a contractual agreement presents a question of law. Aviation Assocs., Ltd. v. TEMSCO Helicopters, Inc., 881 P.2d 1127, 1130 (Alaska 1994). When reviewing questions of law, this court applies its independent judgment. Summers v. Hagen, 852 P.2d 1165, 1168-69 (Alaska 1993). B. The District Court Lacked Jurisdiction to Adjudicate the Dispute District courts are courts of limited jurisdiction. AS 22.15.050. District courts do not have jurisdiction over "an action in which the title to real property is in question" or "actions of an equitable nature, except as otherwise provided by law." AS 22.15.050(1), (2). Kopanuk invokes both of these prohibitions in his brief. He claims that title is in dispute because he has "equitable ownership interests" in the house. We address only whether this action involves equitable ownership interests. The district court's jurisdiction depends upon whether equitable interests exist. Typically a lease will not give rise to equitable interests in the lessee; however, an installment contract often will give rise to equitable interests in the purchaser. See 3 Richard R. Powell, Powell on Real Property 37-155 (1994). We noted the differences between installment and option contracts in Dillingham Commercial Co., Inc. v. Spears, 641 P.2d 1 (Alaska 1982): The purchaser under an installment land contract is treated as the equitable owner and the vendor as holding the bare legal title merely as security for the purchase price. In contrast, an optionee under a purchase option holds only a contractual right to the land. Id. at 7 n. 7 (citations omitted). Kopanuk argues that the contract at issue is more like an installment contract than a lease/option contract, and urges that the substance of the contract be examined. Conversely, AVCP RHA argues that the contract is a lease-option. Kopanuk emphasizes several contract provisions as evidence that the contract is an installment contract. First is use of the word "homebuyer" throughout the agreement. Second is the non-refundable contribution of land. Third is the existence of "equity accounts" for holding payments in excess of a certain amount. Fourth is the lack of a payment required to exercise the purchase option, if exercised after twenty-five years. Fifth is the ability to purchase the home before the price drops to zero by paying the declining balance. Sixth is lan guage in the contract stating that a "home-buyer" "must purchase" the home if certain conditions are met, such as ability to meet the routine costs of ownership. AVCP RHA emphasizes other provisions in support of its position. First is a list of homebuyer obligations similar to those in the Uniform Residential Landlord and Tenant Act, citing AS 34.03.120 and MHOA § 5.4. Second is variable monthly payments changeable at AVCP RHA's discretion. Third is a counseling and inspection requirement. Fourth is the income reporting requirement and the restrictions on who may reside in the home. Fifth is the fact that no subletting or assignment is allowed. Sixth is the housing authority's control of insurance. Seventh is detailed termination information. The MHOA is a hybrid contract, containing provisions typical of both lease/option contracts and installment contracts. Indeed, a contract more difficult to categorize is hard to imagine. However, we need not determine the exact label to be applied to the contract, as we conclude that the contract creates equitable interests, or potential equitable interests, in the homebuyer, which preclude the district court from hearing the case. One of the justifications for FED actions is the lack of equity held by the tenant-in-possession. This is not the case here. Equity may exist in fact since the "homebuyer" has put up land for a "down payment." Furthermore, a person who maintains property over a period of years may have equity in the appreciated value of that property. Since the district court lacks jurisdiction over equitable actions, AS 22.15.050(2), the judgment of the superior court is REVERSED. . As a preliminary matter, the nature of FED jurisdiction must be clarified. In Vinson v. Hamilton, 854 P.2d 733, 737 (Alaska 1993), this court held that "in an FED hearing, an award of possession constitutes equitable relief." AVCP argues that this holding means that "[t]he statutory power to hear FED proceedings simultaneously grants power to hear an equitable action." Although an FED action may result in equitable relief, it is a swift and summary proceeding. FED actions are unsuited for resolution of more complex inquiries, such as when equitable ownership interests are at stake. Therefore, although AS 22.15.030(a)(6) specifically grants the district court power to hear FED actions, this is not a grant of jurisdiction over all equitable actions. . "Homebuyer" is defined as "The person(s) who has executed this MHO agreement . and who has not yet achieved homeownership." . Specifically, keeping the house clean and safe, disposing of waste properly, using appliances reasonably, refraining from damaging the property, avoiding disturbing neighbors, and refraining from illegal activity. AS 34.03.120(a)(1) — (6); MHOA 5.4(e) — (j). . The United States, as amicus curiae, argues' that HUD has consistently interpreted the MHOA program to be a lease program. The HUD regulations are irrelevant, as we hold under state law that equitable interests may exist and the district court therefore lacks jurisdiction. HUD has no power to interpret state law, and the cited regulations do not interpret any provisions of federal law purporting to override the state law at issue here.

10345558

In the Matter of the ESTATE OF Stewart Eric BRANDON, Jr. Catrina Crume BRANDON, Through her Guardian Ad Litem, Donna C. WILLARD, Appellant and Cross-Appellee, v. HEDLAND, FLEISCHER, FRIEDMAN & COOKE, Appellee and Cross-Appellant; and Estate of Stewart Eric Brandon, Jr., Joseph L. Kashi, Helen Carter and Eric Stewart Brandon, Sr., Appellees, HELLÉN & ACCINELLI, a professional corporation, Appellant and Cross-Appellee, v. HEDLAND, FLEISCHER, FRIEDMAN & COOKE, Appellee and Cross-Appellant; and Joseph L. Kashi and Robert M. Cowan, Appellees, HEDLAND, FLEISCHER, FRIEDMAN & COOKE, Cross-Appellant and Appellee, v. HELLÉN & ACCINELLI, a professional corporation, and Catrina Crume Brandon, through her Guardian Ad Litem, Donna C. Willard, Cross-Appellees and Appellants

Brandon v. Hedland, Fleischer, Friedman & Cooke

1995-08-18

Nos. S-5366, S-5382, and S-5383

1299

1320

902 P.2d 1299

902

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:43:34.517492+00:00

CAP

Before MOORE, C.J. and RABINOWITZ, COMPTON and EASTAUGH, JJ.

In the Matter of the ESTATE OF Stewart Eric BRANDON, Jr. Catrina Crume BRANDON, Through her Guardian Ad Litem, Donna C. WILLARD, Appellant and Cross-Appellee, v. HEDLAND, FLEISCHER, FRIEDMAN & COOKE, Appellee and Cross-Appellant, and Estate of Stewart Eric Brandon, Jr., Joseph L. Kashi, Helen Carter and Eric Stewart Brandon, Sr., Appellees, HELLÉN & ACCINELLI, a professional corporation, Appellant and Cross-Appellee, v. HEDLAND, FLEISCHER, FRIEDMAN & COOKE, Appellee and Cross-Appellant, and Joseph L. Kashi and Robert M. Cowan, Appellees, HEDLAND, FLEISCHER, FRIEDMAN & COOKE, Cross-Appellant and Appellee, v. HELLÉN & ACCINELLI, a professional corporation, and Catrina Crume Brandon, through her Guardian Ad Litem, Donna C. Willard, Cross-Appellees and Appellants.

In the Matter of the ESTATE OF Stewart Eric BRANDON, Jr. Catrina Crume BRANDON, Through her Guardian Ad Litem, Donna C. WILLARD, Appellant and Cross-Appellee, v. HEDLAND, FLEISCHER, FRIEDMAN & COOKE, Appellee and Cross-Appellant, and Estate of Stewart Eric Brandon, Jr., Joseph L. Kashi, Helen Carter and Eric Stewart Brandon, Sr., Appellees, HELLÉN & ACCINELLI, a professional corporation, Appellant and Cross-Appellee, v. HEDLAND, FLEISCHER, FRIEDMAN & COOKE, Appellee and Cross-Appellant, and Joseph L. Kashi and Robert M. Cowan, Appellees, HEDLAND, FLEISCHER, FRIEDMAN & COOKE, Cross-Appellant and Appellee, v. HELLÉN & ACCINELLI, a professional corporation, and Catrina Crume Brandon, through her Guardian Ad Litem, Donna C. Willard, Cross-Appellees and Appellants. Nos. S-5366, S-5382, and S-5383. Supreme Court of Alaska. Aug. 18, 1995. Before MOORE, C.J. and RABINOWITZ, COMPTON and EASTAUGH, JJ. Donna C. Willard, Law Offices of Donna C. Willard, Anchorage, Guardian Ad Litem for Catrina Crume Brandon. Roger F. Holmes, Biss & Holmes, Anchorage, for Hellén & Aecinelli, P.C. James R. Blair, Bliss Riordan, Fairbanks, for Hedland, Fleischer, Friedman, Brennan & Cooke. Kenneth P. Jacobus, Kenneth P. Jacobus, P.C., Anchorage, for Joseph L. Kashi. Michael W. Flanigan, Walther & Flanigan, Anchorage, for Robert M. Cowan. Paul L. Davis, Law Offices of Paul L. Davis and Associates, Anchorage, for Stewart Eric Brandon, Sr. Hugh G. Wade, Wade & De Young, Anchorage, for Helen Carter.

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Before MOORE, C.J., and RABINOWITZ, COMPTON and EASTAUGH, JJ. OPINION EASTAUGH, Justice. I. INTRODUCTION These consolidated appeals raise issues regarding the allocation of proceeds of a wrongful death lawsuit brought after Stewart Eric Brandon, Jr., (Erie) died in an air crash. The disputants are Eric's minor daughter, Eric's non-dependent parents, and various attorneys claiming attorney's fees. We reverse the superior court's allocation because it failed to satisfy the requirements of Alaska Rule of Civil Procedure 90.2. II. FACTS AND PROCEEDINGS A. Eric's Survivors Eric Brandon was killed in November 1987 when the Ryan Air Service commuter aircraft in which he was a passenger crashed on approach to landing at Homer. He was twenty-three years old and died intestate. Catrina Crume was born about two years before Eric's death. Christy Crume is Catri-na's mother. Catrina's paternity was never formally established during Eric's lifetime, but he admitted to Christy and others he was Catrina's father. Eric's divorced parents, Stewart Eric Brandon, Sr., (Brandon), and Helen Carter (Carter), were both aware of Catrina's existence after her birth. Christy and Eric never married. B. The Lawsuits Carter lived in Pennsylvania. Soon after the crash, she contacted Philadelphia attorney Jeffrey Voluck who asked Anchorage attorney John Hedland, of the firm of Hed-land, Fleischer, Friedman, Brennan & Cooke (collectively "Hedland"), to bring a wrongful death action in Carter's behalf. Hedland agreed to represent Carter on a contingent fee basis. Brandon, who lived in the Kenai/Soldotna area, retained Soldotna attorney Joseph Ka-shi to represent him. In February 1988 Brandon, through Kashi, filed Case No. 3KN-88-22PR in Kenai and asked the superior court to appoint him personal representative of his son's estate; apparently simultaneously, Brandon began Case No. 3HO-88-53 Civil in Homer by filing a wrongful death complaint that alleged he was the "custodian and personal representative of the estate of the decedent." In neither case did Brandon mention the possibility Eric had left a minor child, although Brandon was allegedly "well aware" of a possible child. In early 1988 Carter, through Hedland, filed Case No. 3AN-88-1988 PR in Anchorage and asked the superior court to appoint her personal representative of her son's estate. In April 1988 Carter opposed Brandon's application to be appointed personal representative and asserted that there was a possibility Eric had left a child. In late 1987 Christy Crume, Catrina's mother, approached attorney Robert Cowan about asserting a claim on behalf of Catrina as a result of Eric's death. Learning later of the lawsuits filed by Brandon and Carter, and having contacted their attorneys, Cowan asked attorney Olof Hellén, then at Hellén, Partnow & Condon, to help represent Catri-na's interests. In December 1988 Superior Court Judge Charles K. Cranston appointed Carter and Brandon co-personal representatives of the estate in Case No. 3KN-88-22PR; Judge Cranston noted Catrina was Eric's purported minor child and charged Carter and Brandon with the duty of ascertaining Eric's heirs. In January 1989 Christy Crume retained Hellén and Cowan to represent Catrina's interests on a contingent fee basis. Hellén and Cowan agreed to share responsibility and split the fee equally. In February 1989 Catrina, through Hellén, filed Case No. 3KN-89-149 Civil, a suit against the co-personal representatives, seeking a declaration that Eric was Catrina's father. It was later alleged that Carter and Brandon "vigorously contested" Catrina's efforts to resolve the paternity question and "every aspect" of her paternity case, moved to dismiss the claim, and resisted her application to test their blood, claimed someone else was actually Catrina's father, and failed to seek out Eric's heirs. It was also alleged that Hedland and Kashi assisted Carter and Brandon, respectively, in their efforts to contest Catrina's paternity claim. Blood testing of Brandon and Carter was not completed until February 1990. In August 1989 Hedland and Kashi agreed to represent the estate on a contingent fee basis. Carter and Brandon signed the contingent fee agreement for the estate. Carter and Brandon then filed Case No. 3HO-89-204 Civil, a wrongful death action against Ryan Air; it was consolidated with Case No. 3HO-88-53 Civil, the wrongful death suit previously brought by Brandon. In June 1990 results of the genetic blood testing were provided to Hedland; they established to a very high probability that Ca-trina was Erie's daughter. The paternity trial was to begin September 4,1990. The wrongful death trial was to begin October 29, 1990. C. The 1990 Paternity Settlement On September 4, 1990, the parties in the paternity suit presented Judge Cranston with a "Stipulation for Settlement." The stipulation had been executed by the parties' attorneys, Hellén, Hedland and Kashi. No motion or explanatory memorandum accompanied the proposed agreement. Per the agreement, (1) Carter and Brandon would withdraw their opposition to Catrina's paternity claim; (2) Christy, Brandon, and Carter would become co-personal representatives of Eric's estate in the wrongful death action, and would participate and cooperate fully in prosecuting that claim against Ryan Air; (3) Christy would "endeavor to facilitate a reasonable and enduring relationship" between Catrina and her grandparents, Carter and Brandon; (4) the parties would bear their own costs and attorney's fees incurred in the probate and paternity actions; and (5) any wrongful death proceeds (net of expenses) would be divided as follows: (a) Catrina would receive 66-⅜% subject to the rights of attorneys Hellén and Cowan; (b) Carter and Brandon would jointly receive 33⅜% subject to the rights of their attorneys; (c) Hedland would remain as active co-counsel, subject, however, to being discharged by Catrina, and would receive "additional compensation" of 5% of net proceeds exceeding $612,000 (the amount of Ryan Air's last offer). Before approving the settlement, Judge Cranston briefly discussed Alaska Civil Rule 90.2 with Hellén, Kashi and Hedland; Hed-land told the court that Rule 90.2's minor settlement procedure did not apply to the September 4 agreement, but that court approval would be required for any future settlement with Ryan Air and for disbursement of any proceeds of the wrongful death suit. Kashi and Hellén did not dispute Hedland's advice. They acknowledged the court would have to approve any future settlement. The court stated that the agreement did not excuse the parties' duty to obtain approval of a future minor settlement or the court's duty to approve a subsequent minor settlement and any award of attorney's fees. Hedland asserted that the substance of the September 4 agreement would not be open for reconsideration during any future minor settlement hearing, and the court responded, "No, I don't think it is_ [I]f there is a settlement in the [wrongful death] case, then that phase of the case has to be subject to a minor settlement." The proposed order approving the stipulation stated it was "entered as a final order and judgment." Judge Cranston signed the order on September 4, 1990. After signing the order, the court heard evidence supporting Catrina's claim that Erie was her father. No opposing evidence was offered. The appellate record contains no facts that might have overcome the great weight of evidence supporting Catrina's paternity claim. At the conclusion of the paternity hearing, Judge Cranston found the evidence sufficient to declare paternity. D. The Ryan Air Wrongful Death Settlement Following the paternity hearing, attorneys Hellén and Hedland prepared for the wrongful death trial against Ryan Air. Ryan Air's liability had been established as a matter of law before trial; the National Transportation Safety Board had determined that the cause of the crash was overloading and improper loading. The trial began in November 1990. The jury awarded the estate damages of $2,800,000 against Ryan Air. With costs, attorney's fees and prejudgment interest, the total judgment was $4,627,885. Ryan Air appealed the judgment to this court. In late November 1991, while Ryan Air's appeal was pending, Ryan Air and the estate negotiated a proposed settlement of $4.25 million; with post-judgment interest, the judgment then totalled approximately $5.1 million. In December 1991 the estate's personal representatives (Carter, Brandon, and Christy) petitioned the superior court under Civil Rule 90.2 for approval of the proposed settlement with Ryan Air. They filed the petition in a new action brought for that purpose, Case No. 3KN-91-83 PR-MS (minor settlement action). The memorandum supporting the petition stated that the proposed Ryan Air settlement was in accordance with Alaska law "since the minor child, Catri-na Crume is the only statutory beneficiary" of the decedent. Petitioners noted that in 1990 the court had approved an agreement allocating one-third of the net recovery to Carter and Brandon. On December 5, 1991, after conducting a hearing, Judge Cranston approved the estate's proposed settlement with Ryan Air but stated that there would be no disbursements until further order. E. Allocation of the Settlement Proceeds Soon after, Hellén asked the court in the minor settlement action to allocate from the Ryan Air settlement proceeds $1,252,655 for Catrina, $1,259,762 for attorney's fees for Hellén and Cowan, and $114,466 for litigation costs. Hellén in part justified the proposed fee by the substantial time spent litigating paternity. Hedland, Kashi, and Paul Davis ("independent counsel" brought in by Brandon and Christy) opposed Hellén's request, arguing in part that Hellén's proposed fees would be excessive and that Hedland's 5% "additional compensation" should be deducted from Hellén's fee, not from Catrina's portion. Hedland noted that under Hellén's proposal, the child would receive approximately 30% of the net Ryan Air settlement proceeds, about $7,100 less than the amount Hellén and Cowan, the child's attorneys, would receive. Hedland instead proposed that Catrina receive approximately $2,709,-163, between $498,486 and $548,334 of which would be paid to Hellén and Cowan. Hedland then asked the court to make the following additional disbursements from the Ryan Air settlement proceeds, in accordance with the September 4, 1990 order; (1) payment to Hedland of "additional compensa tion" of $181,900 ; (2) payment of $81,355 to Hedland and $14,944 to Kashi to reimburse costs; (3) payment of 21⅜% of the net proceeds jointly to Carter and her attorneys, and 12½% of the net proceeds jointly to Brandon and his attorney. Hedland did not specify the fees Hedland, Voluck and Kashi would receive from their contingent fee agreements with Carter and Brandon, but Hellén calculated those fees to total $674,700, not including Hedland's 5% "additional compensation" fee. As calculated by Hellén, Hedland's fee per his agreement with Carter should have been $398,400. The total sought for Brandon, Carter, Hedland and Kashi was approximately $1,600,000. As of February 1992 no party contended that Carter and Brandon should take anything less than the amounts calculated per the September 1990 order. Soon after, Superior Court Judge Jonathan H. Link appointed Donna C. Willard guardian ad litem (GAL) to represent Catri-na's interests in No. 3KN-91-83 PR-MS and commented that, "[Tjhroughout all these proceedings the infant . has been represented by attorneys employed by her mother.... At no time has Catrina . been represented by anyone solely responsive to her interests." The GAL filed a report that proposed attorney's fees allocations that would have left Catrina a net recovery of $2,160,153. Among other things, the GAL noted that (1) Ryan Air's liability had been established as a matter of law prior to the wrongful death trial; (2) the fees requested by the attorneys totaled $2,129,660.43, approximately 50% of the gross recovery; (3) Carter and Brandon, although no longer beneficiaries of Eric's estate given Catrina's paternity, claimed an additional $679,402.56; (4) Catrina's ultimate recovery would be $1,367,515, only 32% of the gross recovery, if all the fees and costs requested by the attorneys were paid; (5) Hedland benefitted not only from the "additional compensation" term of the 1990 settlement agreement, but also from Brandon's agreement to cede part of his share to Carter; (6) there was a dispute about whether Hedland's "5% bonus" should come from Ca-trina's net recovery or from Hellén's share and whether it should be based on the gross recovery of $4,250,000 or the net recovery of $4,076,578; and (7) Brandon and Christy Crume objected to paying any "bonus" to Hedland because they had not known of or agreed to any "additional compensation." The GAL also criticized the manner in which Carter and Brandon carried out their responsibilities as co-personal representatives of the estate. Specifically, she alleged in her report that conflicts of interest potentially existed between the estate's original personal representatives (Carter and Brandon) and Catrina, who was identified early as potentially the only statutory beneficiary; that Carter and Brandon apparently had attempted to defeat Catrina's paternity claim and resisted Christy Crume's attempts to be appointed personal representative; and that as of September 4,1990, Carter and Brandon had demanded a share of the recovery, and their demands were supported by Brandon's threat not to produce witnesses or evidence needed for a substantial award at the wrongful death trial unless he received a share of the proceeds. Claiming that various attorneys had violated their ethical responsibilities, the GAL also alleged that Hedland, the estate's lead attorney in the claim against Ryan Air, had threatened to withdraw from the Ryan Air suit and be uncooperative if he were not given a "bonus"; that Hedland and Kashi had substantial conflicts of interest because they represented both Eric's estate (of which Catrina was a potential beneficiary) and Carter and Brandon (who had opposed Catrina's paternity claim); and that there were at least three instances of fee splitting between attorneys, in potential violation of Alaska Disciplinary Rule (DR) 2-107. The GAL noted that Civil Rule 90.2 applied to disbursement of the settlement proceeds and argued that the court was entitled to review the "efficacy of the original September 4, 1990 settlement." The GAL recommended that (1) Catrina receive $2,160,- 153; (2) the total attorney's fees be $1,416,-525, one-third of the gross settlement proceeds; and (3) Brandon and Carter equally share $500,000, on the theory that but for Catrina's presence in the lawsuit, the approximate gross value of the claim would have been $800,000, of which the parents would have equally shared about $533,360 after costs and fees. Hedland and Cowan vigorously disputed the GAL's factual assertions and recommendations. Hedland asserted that the only reason for the "turmoil" was the Hellén/Cowan attempt to charge an "exorbitant fee." Hed-land accused the GAL of doing something Hellén could not in "good conscience" do: an "attempt to renege on the paternity settlement" and an "attempt to void" the Hellén-Cowan agreement. Hedland denied any wrongdoing. Cowan argued that the settlement agreement which gave a portion of the funds to Carter and Brandon was unenforceable as against public policy given Catrina's paternity and her resulting entitlement to all the proceeds. Cowan also argued theories that might have been an alternative ground for refusing to enforce the 1990 agreement. In affidavits, Brandon and Christy stated they would not have agreed to pay Hedland's "bonus" out of Catrina's share. The GAL and Cowan each seemed to argue that the September 4, 1990 settlement agreement was not binding on the parties with respect to distribution in the present case; Hedland and Kashi each seemed to argue that the September 1990 order was final and controlling. At an August 1992 hearing, Judge Link unsuccessfully encouraged the disputants to settle their differences. He noted that Catri-na "got something" from the 1990 settlement agreement, including the benefit of preparation for the wrongful death case. The court also stated it was convinced the parties in September 1990 did not feel that the expert testimony resolved all issues of paternity; it noted that the parties to the 1990 agreement were represented by counsel, and it presumed that they had consulted counsel and acquiesced in the agreement. I do think I have the authority to disturb that agreement. And I have that authority under 90.2 and — in the case law. But, factually, I believe that that agreement was entered into in good faith at the time. And I intend to give to Brandon, Sr. and Carter the substantial benefit that they bargained for in that agreement and, as well, Katrina [sic]. The court also stated that it had not considered any possible ethical violations by the various lawyers except to the extent they affected the reasonableness of the fees charged. The court then announced a proposed allocation. It proposed giving Brandon $887,274 and Carter $292,127, the amounts they "bargained for in the September 1990 agreement." The court proposed giving Catrina, "the subject matter of all this litigation," $1,839,877, approximately 43% of the gross recovery. The court acknowledged that it was "in some agreement" with the GAL's assertion Catrina's recovery "seems quite low." The court continued: "It is a function, however, of the September 1990 agreement, the agreement which I've indicated under the circumstances, I don't think it would be appropriate to disturb." The court also proposed that the attorney's fees total $1,557,-298, and suggested specific allocations to the attorneys and firms. The court further noted that Hedland and Kashi should apportion fees between themselves, and Hellén and Cowan should apportion fees between themselves. The GAL stated that although Catrina was willing to accept the court's proposal to settle the allocation issues, if other parties appealed, the GAL would consider all issues open on appeal. Hedland and Hellén filed extensive objections to the allocation proposed by the trial court at the August hearing. In September 1992 the trial court entered an Order Distributing Settlement Proceeds and a Final Order of Distribution of Minor Settlement Proceeds. The Final Order stated: Strictly speaking, the court's and counsel's observation [at the September 1990 hearing] that a minor settlement hearing was not necessary to approve the September 1990 agreement between the parties was not accurate. However, the September 4, 1990 hearing was in many respects a minor settlement hearing and all parties have treated the September 1990 settlement agreement as binding since that time. The trial court characterized the 1990 order as a ratification of the proposed two-thirds/one-third "split" between Catrina and Eric's parents, and announced it was treating the 1990 ratification as a binding order. Judge Link recognized that Carter and Brandon must have realized there was' a substantial probability they would be entitled to recover nothing if Catrina prevailed in the paternity action and Catrina and her attorneys chose to "cut them out." The court called Brandon's ability to share in the recovery "fortuitous." The court stated that much of the "consideration" offered by Carter and Brandon to the 1990 settlement was the preparedness, availability, and ability of "their attorneys" to prosecute the wrongful death action without delay; the court also noted the grandparents' apparent desire to establish a bond with Catrina and the desire of Catrina's mother to cultivate that bond. "Therefore, Brandon and Carter are entitled to the benefit of their bargain." Judge Link noted the attorneys had requested fees totalling more than 50% of the gross recovery. Recognizing the total sought was clearly excessive, Judge Link decided to award total fees of $1,557,298.02, about 38% of the net recovery. The Final Order allocated the 4.25 million settlement proceeds as follows: Costs 173,421.59 Attorneys Fees: Hellén $754,214.23 Hedland 694,375.03 Kashi 108,708.76 Total: Catrina (in trust) 1,557,298.02 1,839,850.65 Brandon 387,274.95 Carter 292,154.79 The Final Order did not discuss the GAL's allegations that' attorneys had violated their ethical obligations and that Catrina had accepted the 1990 settlement out of duress. Hellén, Catrina, and Hedland appealed. We consolidated the three appeals. Partial distributions have been made to Catrina and the attorneys; nothing has yet been distributed to Carter or Brandon. III. DISCUSSION A. Standard of Review We exercise our independent judgment in deciding whether Civil Rule 90.2 applies to particular aspects of a settlement potentially affecting a minor's interests, and if so, whether the proceedings satisfy that rule. Cf. Cedergreen v. Cedergreen, 811 P.2d 784, 786 n. 2 (Alaska 1991) (exercising our independent judgment when reviewing questions involving the legal interpretation of child custody agreement). We review the trial court's findings of fact under a clearly erroneous standard. Alaska R.Civ.P. 52(a). We apply an abuse of discretion standard in reviewing a trial court order approving a settlement of a minor's claims and distributing proceeds of a minor's settlement under Civil Rule 90.2. Cf. Barber v. Barber, 837 P.2d 714, 716 n. 2 (Alaska 1992) (applying the abuse of discretion standard in reviewing trial court's approval of a settlement stipulation). We apply an abuse of discretion standard in reviewing the trial court's allocation of a total fee award among the attorneys sharing it. AS 09.55.580(a); In re Soldotna Air Crash Litigation, 835 P.2d 1215, 1222 n. 10 (Alaska 1992). B. The Allocation of Wrongful Death Proceeds These appeals arise out of the September 1992 orders allocating the Ryan Air wrongful death settlement proceeds. Our decision turns on whether that allocation satisfied the requirements for settling the claims of a minor. As we will see, it did not. Catrina argues that the 1992 orders erroneously relied on the September 1990 settlement, that the court never approved the 1990 settlement as required by Civil Rule 90.2, that Carter and Brandon should have received nothing, and that the attorney's fees to be paid from the settlement proceeds must be reconsidered and reduced. Hellén argues that the 1992 allocation erred in awarding insufficient fees jointly to Hellén and Cowan, equal fees to Cowan and Hellén, and excessive fees and costs to Hed-land and Kashi. Hedland argues that the 1992 orders erroneously allocated to Hellén and Cowan $55,-000 which should have been paid to Hedland, and thus failed to implement the September 4, 1990 settlement agreement. Cowan argues that the court erred in allocating any part of the settlement proceeds to Brandon and Carter, in basing any part of the allocations to Kashi, Hedland and Voluck on their contingency contracts with Carter and Brandon, and in reducing the fees Hellén and Cowan should have received jointly per their contingent fee agreement with Catri-na's mother. Carter and Brandon argue that the allocation was essentially appropriate. Kashi argues that his allotted fee should be left undisturbed. 1. Civil Rule 90.2 and minor settlements Alaska Civil Rule 90.2 sets out the requirements for compromising the claims of a minor. A person claiming on behalf of a minor against another person has the power to execute "a full release or covenant not to sue, or . a stipulation for entry of judgment on such claim." Alaska R.Civ.P. 90.2(a)(1). Before that document is effective, however, "it must be approved" by the court. Id. A person seeking approval must file a petition or motion with the court. Id. Among other things, the petition or motion must "state . the basis for determining that the settlement is fair and reasonable." Alaska R.Civ.P. 90.2(a)(2). If the settlement arises out of the wrongful death "of another person, the petition or motion must describe the relationship between the other person and the minor and state whether the amount of the settlement is consistent with applicable state law." Id. The court must approve any attorneys' fees and costs to be paid from the settlement proceeds. Alaska R.Civ.P. 90.2(a)(3). The court must conduct a hearing before approving a settlement if the net proceeds exceed $25,000. Alaska R.Civ.P. 90.2(a)(4). Although Civil Rule 45(e) gives parties the power to compel the presence of witnesses at hearings, Civil Rule 90.2(a)(4) gives the court authority to compel any person with information "concerning the minor's claim, the fairness of the settlement or any related matter" to attend the settlement hearing. By giving the court authority to require sua sponte the presence of persons whose knowledge may bear on the "fairness" of the settlement, Rule 90.2(a)(4) allows the court to take an active and independent role in the approval process and adduce facts the parties themselves may fail or choose not to produce. Thus, the rule makes it clear that the trial court cannot approve a proposed minor settlement without first determining that it is "fair and reasonable." Alaska R.Civ.P. 90.2(a)(2). The court may conduct its own investigation of the facts in making that determination and must exercise its independent judgment. Even in the absence of such a rule, it has long been recognized that proposed settlements affecting the interests of minor claimants must be judicially approved to be effective. See Salmeron v. United States, 724 F.2d 1357, 1363 (9th Cir.1983) ("It has long been established that the court in which a minor's claims are being litigated has a duty to protect the minor's interests.... Thus, a court must independently investigate and evaluate any compromise or settlement of a minor's claims to assure itself that the minor's interests are protected....") (citations omitted); Bearing v. Speedway Realty Co., 111 Ind.App. 585, 40 N.E.2d 414, 418-19 (1942); O'Neil v. O'Neil, 271 N.C. 106, 155 S.E.2d 495, 500 (1967). In Dean v. Holiday Inns, Inc., 860 F.2d 670 (6th Cir.1988), the Sixth Circuit reversed a trial court award of contingent fees to attorneys representing a minor claimant in an action against Holiday Inns. The court noted that a minor is not necessarily bound by a parent's agreement to a contingent fee contract. Id. at 673. It also noted that under Michigan law and the "general rule," "settlement of a minor's claim or agreements or waivers affecting a minor's rights or interests are always subject to approval or amendment by the court with jurisdiction to pass on such agreements or actions." Id. (citing 43 C.J.S. Infants § 237-38). "Independent investigation by the court as to the fairness and reasonableness of a fee to be charged against a minor's estate or interest is required." Id. (citation omitted). The court approvingly quoted from Dacanay v. Mendoza, 573 F.2d 1075, 1079 (9th Cir.1978): It is an ancient precept of Anglo-American jurisprudence that infant and other incompetent parties are wards of any court called upon to measure and weigh their interests. While the infant sues or is defended by a guardian ad litem or next friend, every step in the proceeding occurs under the aegis of the court. Dean, 860 F.2d at 673. The Sixth Circuit continued: The interest of an attorney seeking to be awarded a fee from the settlement proceeds effectuated for a minor must always, by the nature of the relationship and the dependency of the minor, be in tension. When a court is called upon to approve the settlement as is in the best interest of the minor, it must consider and then determine what constitutes fair and reasonable compensation to the attorney regardless of any agreement specifying an amount, whether contingent or otherwise. Id. (footnote omitted). The court suggested that "perhaps" the contingent fee agreed upon might be considered "the upper limit of an award." Id. at 673 n. 3. Civil Rule 90.2 carries out these principles. It requires judicial approval of any proposed settlement that compromises the minor's interests. The court must determine that the terms on which a minor's claim will be compromised are fair and reasonable. That means the court must determine whether the benefit the minor receives is commensurate with what the minor gives up, and must take into account all consideration to be given or received by the minor. When a minor proposes to relinquish a claim, the process of assessing the consideration necessarily requires the court to evaluate the risks and benefits of prosecuting the claim to completion. 2. The 1992 orders allocating settlement proceeds The court entered the September 1992 orders allocating the settlement proceeds in Case No. 3KN-91-83 PR-MS. That action was filed under Civil Rule 90.2 specifically to approve the proposed Ryan Air settlement and to distribute the settlement proceeds. All parties recognize, at least tacitly, that the estate's 1991 settlement with Ryan Air and the distribution of the settlement proceeds could not be effective without satisfying Rule 90.2 and obtaining court approval. Judge Cranston recognized in September 1990 that court approval would ultimately be required, at least with respect to division of Catrina's share of the proceeds. Judge Cranston's December 1991 order approving the Ryan Air settlement stated that "there shall be no disbursements from the settlement proceeds until further order of this court." As will be seen, the 1992 allocation was founded on and enforced key features of the 1990 settlement agreement. Because the trial court did not independently review those features in 1992, we must first decide whether the 1990 proceedings satisfied Rule 90.2. 3. The 1990 hearing and agreement The parties to the September 1990 proposed settlement agreement stipulated "to the full, final and complete settlement of the subject matter of this litigation...." (Emphasis added.) The paternity suit was the "litigation" in which the stipulation was offered. If the stipulation had simply eased Catri-na's burden of establishing paternity, Civil Rule 90.2 probably would have been inapplicable. Catrina would have relinquished nothing of value; she could only have bene-fitted from the procedure which allowed her to establish paternity unopposed by Carter or Brandon. The 1990 agreement, however, was not limited to the paternity issue. Although it was filed in the paternity case, the 1990 agreement purported to allocate to Carter and Brandon one-third of any recovery the estate might receive in the pending and separate wrongful death suit. The agreement consequently relinquished Catrina's potential claim to receive, as Eric's sole statutory beneficiary, all proceeds in the wrongful death case (subject to claims for fees and costs). AS 09.55.580. See In re Pushruk, 562 P.2d 329, 381 (Alaska 1977) ("[I]f the decedent is survived by a spouse, child or dependent the [wrongful death] action is brought on behalf of the statutory beneficiary and damages are measured by the loss to the survivors."). When a minor's paternity is in dispute, and that dispute may determine whether the minor receives anything from wrongful death proceeds, the court, before approving a complete or partial relinquishment of the minor's claims to those proceeds, must meaningfully assess the minor's chances of prevailing on the paternity issue. If paternity is virtually certain, the court should not normally permit any distribution that compromises the minor's interests. If, as Catri-na argues, Catrina's paternity could not be successfully challenged as of September 4, 1990, the court in 1990 could not allow Carter and Brandon to receive anything; as the sole statutory beneficiary, Catrina would have been entitled to all the wrongful death proceeds. AS 09.55.580(a); In re Soldotna Air Crash Litigation, 835 P.2d 1215, 1220 (Alaska 1992). On September 4,1990, the paternity action was on the eve of trial; the parties disputing that issue previously had ample opportunity to investigate and discover the controlling facts. Rule 90.2 required the parties who proposed to divert estate proceeds from the child — potentially the estate's only beneficiary — to produce facts sufficient to permit meaningful judicial assessment of-the paternity dispute. The parties failed to do so. They filed no memorandum explaining the factual and legal basis for the proposed settlement. They did not discuss in the stipulation or at the hearing any reason which might have justified court approval of a settlement diverting settlement proceeds from Catrina. Carter and Brandon offered no facts casting doubt on Catrina's paternity. No facts bearing on paternity were offered to the trial court at the September 4, 1990 hearing until after the court had already approved the proposed settlement agreement. The only facts produced at the September 4,1990 evidentiary hearing supported Catrina's paternity claim, and consequently were inconsistent with paying anything to Carter or Brandon. Assuming there was any genuine dispute about paternity, one would expect that the parties could have given the trial court a candid and possibly confidential assessment of the issue without revealing evidence that would have subsequently aided Ryan Air in defending against the estate's damages claim in the wrongful death action. The agreement relinquished another claim of potential value to Catrina. Each party agreed in the stipulation to bear its own costs and attorney's fees incurred in the probate and paternity actions. Had she successfully litigated her paternity suit to completion, Catrina might have recovered attorney's fees and costs from Carter and Brandon. Alaska R.Civ.P. 79 & 82(a). Such an award might have been substantial, considering that Hel- lén later asserted that Hellén lawyers and paralegals spent 1,589.5 hours and incurred $24,163 in costs in connection with the paternity proceeding. If, as Catrina argues, paternity was essentially indisputable, and any defense to that claim was frivolous, Catrina might have recovered actual fees. Van Dart v. Culliton, 797 P.2d 642, 644 (Alaska 1990) (providing that under Civil Rule 82, the court may award actual fees where the losing party's claim or defense was "frivolous, vexatious or devoid of good faith"). The court was not advised of the potential value of Catrina's claim for costs and fees. The 1990 agreement also provided that Carter's attorney (Hedland) would receive additional compensation equal to 5% of the net recovery over $612,000. The 5% figure was potentially objectionable because, taken in conjunction with whatever contingent fee contract governed Hellén's and Cowan's attorney's fees, the court could not have known in 1990 whether the total fees charged to Catrina might eventually prove to be excessive. The court was not told of the terms of Hellén's contingent fee agreement. Consequently, in 1990 the court could not approve in the abstract the 5% rate for Hedland's further services. Moreover, the actual value of Hedland's prospective services was then unknown, both quantitatively and qualitatively. Approving a specific contingent fee percentage in 1990 potentially overcompensated Hedland if there were a large recovery, or if his further services were less extensive or valuable than proposed. The court did not know how much would be recovered from Ryan Air; it seems likely no one anticipated collecting $4.25 million. The verdict was roughly twice what the estate asked from the jury. Further, notwithstanding the seeming simplicity of the 1990 agreement, it is doubtful file parties themselves fully understood how it might affect attorney's fees awards. To ensure that a child's interests are not unfairly compromised in such a ease, the trial court must make careful and rigorous inquiry even when experienced and capable attorneys are involved. The trial court may have found that the agreement — which obliged Christy to "endeavor to facilitate a reasonable and enduring relationship" between Catrina and her grandparents, Carter and Brandon — gave Catrina something of value. Given a proper fact showing, a court might determine that such an undertaking is sufficiently valuable to justify a minor's relinquishment of a valuable claim. In this case, however, the parties did not offer the facts necessary to permit such a determination. Because the proposed 1990 settlement resolved or compromised claims of potential value to Catrina, the parties were required to satisfy Rule 90.2 when they sought judicial approval in 1990. They failed to do so. Their total failure to discuss any factual basis for determining that the settlement was "fair and reasonable" deprived the court of the facts necessary to decide whether to approve the proposed settlement. Alaska R.Civ.P. 90.2(a)(2). The circumstances at the time of the 1990 settlement help explain why the court did not follow Rule 90.2 or conduct the required hearing. No attorney suggested that the court do so, and no party made the motion and factual showing required by Rule 90.2. The proposal was submitted on the eve of the scheduled paternity trial without any substantive explanation, and during the short hearing, the attorneys did nothing to correct the court's erroneous belief that Rule 90.2 did not apply to the proposed agreement. The court did not remedy the parties' failure, nor did the 1990 hearing substantially satisfy Rule 90.2. There is no indication the court considered the substance of the proposed settlement terms in 1990. In sum, the September 4, 1990 order cannot be considered the substantive judicial approval contemplated by Rule 90.2. 4. The 1992 proceedings The 1992 allocations fundamentally relied on the 1990 agreement in calculating the distributions to Carter and Brandon and to attorneys whose services benefitted them. In 1992 the court did not independently review any of the matters that should have been considered before the September 1990 agreement was approved. Although the trial court correctly recognized in 1992 that the attorneys and the court had erred in 1990 in thinking that no hearing was required to approve the 1990 agreement, it nonetheless decided that the 1990 hearing was "in many respects" a minor settlement hearing and that all parties had treated the settlement as binding since that time. Consequently, it gave Brandon and Carter the benefit of their 1990 bargain. It also gave effect to other aspects of the 1990 agreement, particularly the term giving Hedland additional compensation. However, as seen above, the 1990 hearing did not satisfy Rule 90.2 and did not remedy the deficiencies in the procedure followed by the parties. Contrary to the assertion of some parties, the parties' treatment of the 1990 settlement as "binding" until 1992 could not obviate its infirmity. The failure to observe the requirements of Rule 90.2 disposes of these assertions. Independent judicial scrutiny is required precisely because of the possibility that a settlement agreement will not be in a minor's best interests, notwithstanding the active involvement of capable and responsible counsel and representatives, and their approval of a proposed settlement. Consequently, the active involvement of Christy Crume and Hellén in the 1990 settlement cannot excuse the failure to follow Rule 90.2 in 1990 or to consider the 1990 settlement terms in 1992. Further, the allocation issues did not arise until the estate settled with Ryan Air in December 1991, and until the GAL was appointed in 1992, there were no changes in the parties and representatives who had found the terms acceptable in September 1990. The 1992 proceedings did not independently satisfy Rule 90.2. The court never considered in 1992 whether the 1990 agreement was valid. Nor did it consider the fundamental question of whether Carter and Brandon were entitled to receive anything, given the high probability in 1990 that Catrina was the estate's only statutory beneficiary. The court did not determine the proper value to be placed on any amount Carter and Brandon were to receive, assuming they could receive anything. It did not consider the wisdom of other terms of the 1990 agreement, such as Catrina's relinquishment of any claim for attorney's fees or costs she incurred in the paternity suit. The parties did not provide Judge Link with the facts necessary to justify sharing the proceeds with the parents. They produced no evidence that would have permitted the court in 1992 to decide either that Catri-na's paternity was in genuine dispute in 1990 or that the one-third share allocated to Brandon and Carter fairly reflected the value of avoiding trial on paternity. To the extent the court in 1992 discussed any facts bearing on the settlement, those facts do not necessarily justify approval of the 1990 settlement terms or the 1992 allocation. For example, comments in the 1992 allocation order about the frailty of Carter's and Brandon's claims tend to support a conclusion that it was improvident to agree to give them one-third of any recovery. The allocation order also noted that the strength of the parents' claim to a share of the proceeds lay in "the preparedness, availability and ability of their attorneys (particularly the Hedland Firm) to prosecute the wrongful death action without delay." These factors support the GAL's objections to the allocations because the attorneys' cooperation was ethically required and could not justify diverting part of the proceeds to persons potentially entitled to receive nothing. See infra discussion at part 5a. Nor could Carter and Brandon, the estate's co-personal representatives, properly do anything (such as encouraging Hedland to withdraw) to prejudice the estate's claim against Ryan Air. See Alaska Bar Association Ethics Opinion 91-2 (1991) at 2 ("A personal representative in Alaska is under a duty to settle and distribute the estate of the decedent in accordance with the . applicable statutes . as is consistent with the best interests of the estate. The authority conferred by the statutes and court orders must be used by the personal representative for the best interests of the successors of the estate."). See also infra note 21. In sum, the court in 1992 did not make the inquiry or fact findings required to determine whether the 1992 allocations were fair and reasonable. The court could have done so only by considering the substance and effect of all aspects of the September 1990 agreement which potentially disadvantaged Catrina. Because the 1990 agreement never received the scrutiny required by rule, the court erred in relying on that agreement to calculate the final distribution of the Ryan Air settlement proceeds in 1992. We must consequently reverse and remand. It will be necessary on remand to decide whether Carter and Brandon should receive any settlement proceeds. If the trial court concludes on remand that as of September 4, 1990, Carter and Brandon had no hope of defeating Catrina's paternity claim, they would not be entitled to share in the Ryan Air recovery unless they also agreed to contribute valuable consideration to the September 1990 settlement. If the trial court concludes that Carter and Brandon could have demonstrated that they had a more-than-negligible chance of defeating Catrina's paternity claim, it should attempt to quantify the value of that chance in assessing the fairness of the 1990 proposed allocation. 5. Additional concerns identified in 1992 In 1992 some parties raised additional concerns (possible ethical and fiduciary violations, fee splitting and duress) that might have affected the allocation. The court did not give them substantive consideration. It should do so on remand. By remanding, we are not holding that any attorney or party engaged in impropriety or breached ethical or fiduciary duties. Because the allegations raising these concerns were not patently insufficient, the trial court should have considered them when allocating the settlement proceeds, and must do so on remand. a. Alleged ethical violations and conflicts Carter retained Hedland and Brandon retained Kashi to bring claims resulting from Eric's death. When Carter and Brandon became the estate's co-personal representatives, Hedland and Kashi jointly represented the estate in the wrongful death action. When Catrina filed her paternity claim against Carter and Brandon, Carter retained Hedland and Brandon retained Kashi to respond to Catrina's claim. The GAL and Hellén argue on appeal that Hedland and Kashi had two conflicting duties: (1) as attorneys for the estate, they had a duty to act in the best interests of the estate's ultimate beneficiary, whomever it might prove to be; but (2) as attorneys for Carter and Brandon in the paternity action, they had a duty to represent Carter and Brandon as defendants in Catrina's paternity suit. The GAL and Hellén claim Kashi and Hedland were m a conflict position because establishment of Catrina's paternity would also establish the ineligibility of Brandon and Carter to receive any part of the Ryan Air damages. The GAL and Hellén also note that in 1988 the court imposed a duty on Carter and Brandon, as co-personal representatives of the estate, to determine Eric's heirs and Catrina's paternity. The GAL and Hellén assert that if we conclude that there was a conflict of interest which should have disqualified Hedland and Kashi from representing the estate, Hedland and Kashi should be denied any fees. Hedland vigorously argues that there was no breach and that, moreover, the GAL's allegations of impropriety were factually unsupported. Judge Link did not consider the effect of any possible ethical violations except to the extent they might have affected the reasonableness of fees charged. Disciplinary Rule 5-105, in effect at the time of the litigation, provided in part: (A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-105(0. (B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under DR 5-105(C). (C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each. Ethical Consideration (EC) 5-14, also in effect when the paternity and wrongful death actions were proceeding, prohibits a lawyer from representing "two or more clients who may have differing interests, whether such interests be conflicting, inconsistent, diverse, or otherwise discordant." When considering whether multiple clients have differing interests, the lawyer must "resolve all doubts against the propriety of the representation." EC 5-15. If a lawyer accepts representation where multiple clients have potentially differing interests, when the interests actually become differing, the lawyer "would have to withdraw from employment." Id. Although this court has not previously decided whether representation of both the beneficiary and the personal representative of the estate constitutes an impermissible conflict of interest, the Oregon Court of Ap peals addressed the issue in Kidney Association of Oregon, Inc. v. Ferguson, 97 Or.App. 120, 775 P.2d 1383 (1989), modified on reconsideration, 100 Or.App. 523, 786 P.2d 754 (1990). In Kidney Association, the appellate court concluded that although there was no actual conflict between the interests of the beneficiary and the interests of the personal representative and no reasonable expectation of a divergence of interests when representation began, the parties' interests later diverged. 775 P.2d at 1386; 786 P.2d at 756. The court held that when the interests diverged, the attorney "was under an ethical obligation to notify [the beneficiary] and the estate of a likely conflict of interest and obtain their consents to his continued representation of them." 786 P.2d at 757. By failing to do so, the attorney "breached his fiduciary duty to [the beneficiary]." 775 P.2d at 1386. Such a breach potentially impacts an attorney's right to fees. Moses v. McGarvey, 614 P.2d 1363, 1372 (Alaska 1980). The GAL and Hellén correctly assert that Hedland and Kashi's dual responsibilities were in potential conflict. It appears Carter and Brandon knew from the outset that there was potentially a minor heir. The record before us supports a claim that no later than mid-April 1988, Hedland and Ka-shi knew that a minor child might be Eric's only heir, and that the child's paternity would make Carter and Brandon ineligible to receive any wrongful death proceeds. If so, Hedland and Kashi should have recognized that Carter and Brandon had interests potentially at odds with those of the minor child, and that Carter and Brandon, as representatives of the estate, might have a personal interest in failing to perform their duty to ascertain the estate's heirs per Judge Cran-ston's December 1988 order. Carter and Brandon bargained for settlement terms in 1990 that were potentially disadvantageous to Catrina. The personal representatives of the estate thus arguably benefitted at the expense of the person who was probably the sole beneficiary of the estate. Consequently, we cannot say as a matter of law that no conflict of interest existed. When an attorney undertakes to perform legal services for a client who is acting in a fiduciary capacity, the attorney has a duty not to affect adversely the interests of the intended beneficiary. Fickett v. Superior Court of Pima County, 27 Ariz. App. 793, 558 P.2d 988, 990 (1977); see also Jenkins v. Wheeler, 69 N.C.App. 140, 316 S.E.2d 354, 357 (1984) ("When a client merely represents a class of beneficiaries, the attorney should consider the beneficiaries' interests, without undue concern for the interests of the legal representative."). Hedland argues that Alaska Bar Ethics Opinion 91-2 refutes any argument that Hed-land and Kashi engaged in unethical conduct. Ethics Opinion 91-2 holds that an attorney who represents the personal representative in the probate of an estate is not per se precluded from also representing the personal representative in a contest with other heirs if the attorney has gained no relevant confidential information from the other heirs while acting for the personal representative. Id. at 2. Ethics Opinion 91-2 would not excuse the attorneys' alleged actions in this case. While acting as attorneys for the estate, Hedland and Kashi allegedly gained a valuable advantage over Catrina because they were intimately familiar with the wrongful death action and were the only attorneys adequately prepared to try that case as of September 1990. They and Carter and Brandon had allegedly prevented Catrina's mother from becoming an additional co-personal representative and resisted efforts by Catrina's attorney, Hellén, to relieve them or take an active role in the wrongful death ease in time to prepare sufficiently to try that case on the scheduled date. The GAL alleged that Hed-land and Kashi used that advantage against Catrina in negotiating a settlement that was favorable to Carter, Brandon, and themselves. Ethics Opinion 91-2 consequently does not apply here. The trial court never considered whether there were ethical violations and, if there were, whether they affected the settlement. The record is consequently incomplete. As a result, we are unable to say as a matter of law that there was no conflict or that Catri-na's interests were not harmed. Given the possibility that a conflict disadvantaged Ca- trina, the trial court on remand must decide whether Hedland and Kashi entered into a conflict position and if so, whether they did so intentionally. The court must also consider whether they used their positions as attorneys for the estate to disadvantage Catrina during negotiation of the 1990 settlement terms. In Alaska, the general rule has been that once a conflict of interest or other ethical violation has been established, the attorney is prohibited from collecting fees for his or her services. Moses, 614 P.2d at 1372 ("It is well established that an attorney, disqualified on conflict-of-interest grounds, generally is barred as a matter of public policy from receiving any fee from either of the opposed interests"). However, in Kidney Association, the Oregon court expressly rejected the "majority" view articulated in Moses. Kidney Association, 775 P.2d at 1386-87. It instead favored a "case-by-case approach" that would weigh all relevant factors in determining whether attorneys are entitled to the reasonable value of their services. Id. at 1387. In a case-by-ease determination, the court is to consider, among other factors, whether the breach was intentional and whether the attorney's conduct prejudiced the client. Id. Given the incomplete record, the absence of findings, and the apparent presence of genuine fact disputes, it is premature to decide whether we should apply the general rule expressed in Moses. On remand, if the trial court finds that an attorney was in a conflict of interest, it should apply Alaska law when allocating attorney's fees. However, it should also make alternative fact findings under Kidney Association to reduce the chances of a second remand following any further appeal.' Unless the trial court concludes that Hed-land and Kashi are prohibited from receiving fees earned by them, the court should also consider, when allocating attorney's fees, whether Hedland and Kashi, by contesting the paternity issue for Carter and Brandon or allegedly prolonging that dispute (1) caused Catrina and the estate to incur needless litigation expense; or (2) inappropriately prevented Hellén and Cowan from participating in the wrongful death action in time for them to have become the exclusive attorneys for the estate after September 4, 1990. Additionally, the superior court should consider that Hedland and Kashi, through their diligence and advocacy, greatly contributed to the ultimate success of the wrongful death action, and to collection of a post-judgment settlement substantially exceeding Ryan Air's insurance limits. b. Fee splitting Fee-splitting agreements existed between Hellén and Cowan, between Kashi and Hed-land, and between Hedland and Voluck. The GAL argues that these agreements may have diverted settlement proceeds from Catrina to attorneys who did not earn their fees. Hel-lén also argues that Judge Link erred in not resolving the fee-splitting issue, and that Hellén is entitled to a greater share of the fee than Cowan, who allegedly did not perform an equal share of the work. Alaska Disciplinary Rule 2-107(A), which was in effect at the time of the litigation, provides: (A) A lawyer shall not divide a fee for legal services with another lawyer who is not a partner in or associate of his law firm or law office, unless: (1) The client consents to employment of the other lawyer after a full disclosure that a division of fees will be made. (2) The division is made in proportion to the services performed and responsibility assumed by each. (3) The total fee of the lawyers does not clearly exceed reasonable compensation for all legal services they rendered the client. DR 2-107(A). Similarly, Ethical Consideration 2-22 provides in part: A fee may properly be divided between lawyers properly associated if the division is in proportion to the services performed and the responsibility assumed by each lawyer and if the total fee is reasonable. In context of a minor settlement involving multiple attorneys, a fee-splitting division can overcompensate an attorney whose share exceeds the reasonable compensation for the attorney's services. Such overcompensation is potentially at the minor's expense. A court reviewing a minor settlement under Rule 90.2 must consequently confirm that a fee-splitting agreement does not lead to an excessive fee award. Alaska R.Civ.P. 90.2(a)(3). The court must first determine that the services performed by each attorney were in proportion to the agreed division and that the total fee does not clearly exceed reasonable compensation for the services rendered. DR 2-107(A)(2), (3). If so, the court should divide the fees accordingly. The record does not contain sufficient evidence for us to resolve any question about the propriety of the fee-splitting agreements or divisions made pursuant to them. On remand, the trial court must consider the fee-splitting agreements to determine that they have not resulted in diverting settlement proceeds inappropriately from Catrina. McNeary v. American Cyanamid, Co., 105 Wash.2d 136, 712 P.2d 845, 848 (1986) (providing the trial court is the appropriate place to resolve a dispute between two firms regarding the division of a contingency fee). c. Duress The GAL alleged in 1992 that she had "been advised" that Hedland, during the discussions that led to the September 4, 1990 agreement, threatened to withdraw from the wrongful death case (at a time when he was the only attorney arguably prepared to be lead trial counsel in that case) unless Catrina agreed to pay him additional compensation beyond his share of Carter's recovery. The GAL supported that assertion with her own affidavit, but it does not appear that the GAL was speaking from first-hand knowledge. Attorney Cowan filed an affidavit, potentially based on first-hand knowledge, in which he affirmed that he could "confirm the conduct cited by the [GAL] in the report in regard to threats to not- cooperate and threats to appeal and drop out the paternity litigation " Christy Crume offered an affidavit which asserted that she had been under no duress. Hedland denied making any threat. Judge Link did not consider whether the September 1990 agreement was the result of duress or whether Hedland made any threat to withdraw. Instead, the court tacitly recognized that Catrina was potentially faced with trying the wrongfiil death action without the assistance of Hedland: "I am cognizant of the fact that much of the 'consideration' Carter and Brandon had to offer in that agreement was the preparedness, availability and ability of their attorneys (particularly the Hedland Firm) to prosecute the wrongful death action without delay." Consequently, the court concluded that Carter and Brandon were "entitled to the benefit of their bargain." Given the record, we cannot say as a matter of law that the claim of duress is without merit. On remand, the court should consider the duress claim. If it finds Catrina acted out of duress, the court would be compelled to conclude that the 1990 agreement did not satisfy Rule 90.2. Duress would also render that agreement unenforceable apart from any Rule 90.2 determination. "If a contract or term thereof is unconscionable at the time the contract is made a court may refuse to enforce the contract_" Vockner v. Erickson, 712 P.2d 379, 381 (Alaska 1986) (quoting Restatement (Second) Contracts § 208 (1981)). 6. Potentially excessive fees In 1990, the trial court did not consider whether the September 1990 agreement and the existing contingent fee agreements might lead to excessive fees. In 1992, Judge Link recognized that the total fees requested by all the attorneys, exclusive of costs, were clearly excessive because they exceeded 50% of the gross recovery. Judge Link consequently calculated a total fee of $1,557,298. See note 7, supra. That total was approximately 38% of the net recovery. Civil Rule 90.2(a)(3) requires judicial approval of attorney's fees and costs to be paid from a minor's settlement proceeds. The potential for excessive fees is greater when several attorneys, each operating under a separate contingent fee agreement, ask the court to order the minor to pay attorney's fees based on those agreements. Generally, an attorney's fees calculation is addressed to the discretion of the trial court. Hickel v. Southeast Conference, 868 P.2d 919, 924 (Alaska 1994) (affirming Rule 82 award). The total fee to be charged against a minor's recovery is likewise addressed to the discretion of the trial court. In our view, the total fee award is potentially excessive given all the circumstances presented here. Because the general failure to comply with Civil Rule 90.2 requires remand and recalculation of all the allocations, the issue of excessive fees may not resurface, and the factors which make the fee total appear excessive may not be repeated. If Catrina were the only recipient of the damages distribution, the fees total would potentially be within the discretion accorded the trial court. As a result of the allocation to Carter and Brandon, however, Catrina's net recovery ($1,839,850) was only 45% of the net settlement proceeds ($4,076,578), and the fees total calculated by the court in 1992 ($1,557,298) was 89% of the net amount Ca-trina was to receive. A considered conclusion on remand that Carter and Brandon had a legitimate claim to a portion of the proceeds would permissibly alter the portion available for distribution to Catrina, as well as the amount available to compensate the attorneys whose services benefitted her. If Carter and Brandon share in the proceeds on remand, they must fairly contribute to the amount available to compensate attorneys whose efforts mutually benefitted all the plaintiffs. C. Procedural Issues Hedland, Kashi and Brandon argue, in essence, that we cannot review the terms of the 1990 settlement because the 1990 order was a final, negotiated settlement that was never appealed and because the GAL never moved to set it aside under Civil Rule 60(b). There is no procedural impediment to reaching the issues previously discussed in this opinion. The 1990 settlement could not be a final judgment with respect to allocation issues because it was not the final order of distribution, and consequently, could not terminate the child's interests. See Alaska R.Civ.P. 90.2(a)(5) ("No instrument executed under this rule is effective to terminate a minor's interests until such funds are paid as directed by the court."). Because the 1990 order was not a final judgment as to any issue other than paternity, the doctrine of res judicata did not prevent the trial court from considering the allocations issue afresh in 1992, or require it to apply and enforce all terms of the 1990 agreement. Likewise, without a final judgment, we are not precluded when considering the 1992 allocations from reviewing the 1990 settlement enforced by the 1992 orders. The 1990 agreement purported to do much more than resolve the paternity dispute which was the real subject of that lawsuit. It also allocated the potential, unliquidated proceeds of a totally separate lawsuit which was still in progress. The requirements of Rule 90.2 cannot be circumvented by enforcing the terms of an agreement reached previously but never subjected to judicial scrutiny. D. Attorneys' Appeals Hellén argues on appeal that the trial court erred in awarding $754,214 to Hellén and Cowan, 28% of their client's net recovery, rather than $1,087,087.58, the 40% fee specified in their contingent fee contract. Hellén and Cowan also argue that the trial court granted excessive fees to Hedland, Ka-shi and Voluck. Hedland also appeals from the fee award and argues that he was under-compensated by $55,000.00 because the trial court did not fully enforce the 5% provision in the 1990 settlement. Given our resolution of the issues previously discussed, and the probability that the amounts allocated will change following remand, it is unnecessary for us to decide whether the trial court erred in calculating the 1992 allocations for the various attorneys. IV. CONCLUSION Because the 1992 orders allocating the Ryan Air settlement proceeds did not give the scrutiny required by Civil Rule 90.2 to all aspects of the settlement potentially affecting Catrina, and instead fundamentally relied on 1990 settlement terms which never received the scrutiny required by Civil Rule 90.2, the judgment of the superior court is REVERSED. The superior court is directed on remand to conduct further proceedings consistent with this opinion. MATTHEWS, J., not participating. . Carter denied disputing Catrina's paternity. . Ryan Air had filed for Chapter 11 bankruptcy. Eric's estate was one of Ryan Air's creditors. Through Hedland, Carter filed Catrina's genetic blood testing report in Ryan Air's bankruptcy proceeding to demonstrate the value of the estate's claim against Ryan Air. The accompanying June 14, 1990 affidavit of Hedland attorney Sara Heideman stated that the firm conducting the genetic testing had determined there was a "99.99% likelihood" that Eric was Catrina's father. Hedland himself affied in 1992 that the attorneys for Carter and Brandon in the paternity case had concluded after receiving the genetic testing results in June 1990 that it was a "virtual certainty" Christy's mother would prevail in the paternity case based on the genetic test results then available. Independent tests conducted for Brandon and Carter later confirmed the results of the tests conducted for Catrina. . The evidence supporting Catrina's paternity claim was substantial. Christy Crume testified that (1) she had frequent sexual relations with Eric and no other man during the time Catrina was conceived; (2) Eric, on learning of the pregnancy, admitted to her the child was his; (3) Eric accompanied her to the hospital when she went into labor; (4) she named Eric as the father in a standard news release following the birth and on the card bearing the baby's footprints; (5) after she went home, Eric was around; (6) photographs depicted Eric holding Catrina; (7) Eric referred to himself as Catrina's "papa," held her frequently, changed her diapers, and bought her a Christmas present; (8) Eric gave Christy cash to pay utilities on the trailer where she lived. Six witnesses testified under oath that Eric had acknowledged that he was Catrina's father. Three testified he had done other things consistent with fatherhood. One witness testified that she had seen Eric buying food, diapers, an outfit and a rattle inscribed "My Girl." Another testified that Eric referred to Catrina as "daddy's little girl." Another testified that "just about everybody you talked to that knew him knew it was his." Dr. Geyer, a clinical immunologist, testified that he is associated with a laboratoiy that conducts tests in disputed paternity cases across the country and around the world. He explained the testing which had been conducted at his direction and the nature of blood testing and DNA profiling. He testified that the rarity of the blood groups permits a calculation of the combined paternity index, which states as a probability that the decedent is the true father of the child based strictly on the scientific evidence. He testified that as calculated, the probability was 99.99% that Eric was Catrina's father, and based on the scientific studies, he believed there was "a rea sonable scientific certainty" Eric was Catrina's true biological father. Catrina's attorney was prepared to call a second expert, Dr. Beaver, to discuss the scientific reliability of the test when applied to Catrina's paternity, but the court appeared to indicate Dr. Geyer's testimony was sufficient. . The appellate record discusses several circumstances that, if proven by competent evidence, might have supported a conclusion Eric was not Catrina's father. Christy Crume on one occasion may have prepared a document naming someone other than Eric as Catrina's father; the birth certificate did not name Eric as the father; Eric had refused a blood test; Eric had denied paternity when the State of Alaska inquired about child support based on Christy Crume's assertion he was Catrina's father. Additionally, Kashi submitted an affidavit in 1992 which described several circumstances that, if proven, might have raised a genuine fact dispute about Catrina's paternity claim. Despite these possibilities, the record contains no evidence (documents, testimony, affidavits based on personal knowledge) submitted to either Judge Cranston in 1990 or Judge Link in 1992 that would have created a genuine dispute about paternity. . For continuing to participate in the wrongful death suit, Hedland's "additional compensation" was to be, per the September 4, 1990 agreement, 5% of the difference between the net settlement proceeds and $612,000, the last amount offered by Ryan Air as of September 4, 1990. . The GAL proposed this fees allocation: Attorney Time Expended Percentage Amount Hellén 3,303.8 hours .40 $566,610 623,271 Hedland 3,628.8 ⅜ Tj- 113,322 Kashi 693.8 CO o 113,322 Cowan 693.8 CO o . Judge Link calculated the total by allowing contingent fees of 33-½% on the first $1,100,000 (the amount of the available insurance limits) and 40% on the remaining amount ($2,976,-578.41) of the net settlement. The court justified the enhanced percentage by the difficulty of obtaining and enforcing the judgment. . The court in 1992 allocated a total of one-third of the net proceeds of the Ryan Air settlement to Carter and Brandon and their attorneys, in accordance with the 1990 settlement agreement. Net of the fees allocated to their attorneys, Carter and Brandon were to receive a total of approximately $679,429. The remainder of their one-third share of the net settlement proceeds was to be distributed to their attorneys. Hellén and Cowan were to share the amount allocated to Hellén; Hedland and Voluck were to share the amount allocated to Hedland. . Civil Rule 90.2(a) provides: (a) Approval of Settlement of Claims on Behalf of Minors. (1) Approval. A parent or guardian of a minor who has a claim against another person has the power to execute a full release or a covenant not to sue, or to execute a stipulation for entry of judgment on such claim. However, before such a document is effective, it must be approved by the court upon the filing of a petition or motion. (2) Petition or Motion. A petition or motion for court approval of a minor's .settlement under this rule must state the date of birth of the minor, the relationship between the moving party and the minor, the circumstances giving rise to the claim, the amount of any applicable liability insurance, and the basis for determining the settlement is fair and reasonable. If the settlement arises from personal injuries to the minor, the petition or motion must describe the extent of the injuries, the medical treatment provided and the probable future course of treatment. If the settlement arises from the wrongful death or injury of another person, the petition or motion must describe the relationship between the other person and the minor and state whether the amount of the settlement is consistent with applicable state law. (3) Attorneys' Fees and Costs. The court shall approve any attorneys' fees and costs that are to be paid from the settlement proceeds when the minor claimant is represented by counsel. (4) Hearing. The court may approve the minor's settlement without a hearing if the settlement proceeds, after attorney's fees and costs are deducted, do not exceed $25,000. When a hearing on the petition or motion is held, the court may require the presence of any person that has information concerning the minor's claim and the fairness of the settlement or any related matter. (5) Termination of Minor's Rights. No instrument executed under this rule is effective to terminate a minor's interests until such funds are paid as directed by the court. Civil Rule 90.2 became effective August 1, 1987. It is similar to a practice adopted by the superior court judges for the Third Judicial District on October 31, 1972. Supreme Court Order No. 835, which adopted Civil Rule 90.2 for Alaska, expressly superseded the 1972 special order adopted for the Third Judicial District. SCO No. 835 ¶ 2. An equivalent practice had also been followed in the First Judicial District before Rule 90.2 was adopted. Letter from Judge Thomas E. Schulz, First Judicial District (Nov. 29, 1982) (on file with court rules attorney). . The memorandum seeking court approval of the proposed Ryan Air-estate settlement in 1991 satisfied Rule 90.2. After conducting a hearing at which counsel explained the reasons for the settlement. Judge Cranston approved that settlement on December 5, 1991-, permitting the estate to receive $4.25 million. No one suggests the 1991 Ryan Air settlement did not satisfy Rule 90.2. . AS 09.55.580(a) provides: [W]hen the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action, had the person lived, against the latter for an injury done by the same act or omission. The action shall be commenced within two years after the death, and the damages therein shall be the damages the court or jury may consider fair and just. The amount recovered, if any, shall be exclusively for the benefit of the decedent's spouse and children when the decedent is survived by a spouse or children, or other dependents. When the decedent is survived by no spouse or children or other dependents, the amount recovered shall be administered as other personal property of the decedent but shall be limited to pecuniary loss. When the plaintiff prevails, the trial court shall determine the allowable costs and expenses of the action and may, in its discretion, require notice and hearing thereon. The amount recovered shall be distributed only after payment of all costs and expenses of suit and debts and expenses of administration. . In cases in which the issue of paternity is in doubt, the decedent's parents and the minor claiming to be the decedent's child might well reach a compromise which would fairly and reasonably give the parents a significant or even predominant portion of the estate proceeds. In appropriate circumstances, a court might approve such a compromise after first determining that it is fair and reasonable. . The blood test results potentially created a presumption of paternity that could have been rebutted only by clear and convincing evidence. See AS 25.20.050(d) ("The results of a blood test . shall be admitted and weighed in conjunction with other evidence in determining the statistical probability that the putative parent is a legal parent of the child in question. However, a scientifically accepted procedure that establishes a probability of parentage at 95% or higher creates a presumption of parentage that may be rebutted only by clear and convincing evidence"); see also Smith v. Smith, 845 P.2d 1090, 1092 (Alaska 1993) (attaching presumption of paternity where blood test indicated 99.59% of likelihood that the husband was the child's father). Neither the parties nor the court discussed AS 25.20.050(d) or the clear and convincing standard of proof in the 1990 stipulation or hearing. At the hearing, the court did not discuss whether the test results (based on blood samples from Catrina and Carter and Brandon, rather than Catrina and Eric) satisfied the statute and gave rise to the presumption. . Although in 1992 the court seemed to consider this element of the 1990 agreement to be valuable consideration to Catrina, we note that it imposes a unilateral obligation on Catrina's mother and imposes no express duty on Carter and Brandon. In assessing this settlement term, a trial court might consider whether love and affection can be negotiated and purchased, or whether, assuming Carter and Brandon were genuinely able to provide love and affection to Catrina, the consideration to be given by Catrina was equitable. . On appeal, Hedland asserts that the 1990 proposed agreement was presented to court for its review and approval "pursuant to Civil Rule 90.2." That assertion is incorrect, and is also contrary to the position Hedland took at the 1990 hearing. At that hearing, Hedland advised the court that he did not believe a minor settlement procedure was necessary for the agreement then proposed to Judge Cranston, although the attorneys and the court all contemplated that any future settlement of the minor's claims would be subject to a Rule 90.2 approval. Hedland also stated that the "substance of this agreement wouldn't be open for consideration" at any subsequent proceeding. . Several attorneys submitted affidavits and memoranda in 1992 alleging some facts potentially bearing on paternity. See note 4, supra. Those submissions provided only hearsay accounts of the circumstances alleged and could not rebut the strong evidence of paternity admitted at the September 4, 1990 hearing. Given the inadmissibility of the submissions, they would not have justified a conclusion in 1992 that Catri-na's paternity was in genuine dispute in 1990. . We recognize the dilemma faced by the parties to the paternity action in September 1990. If Catrina's paternity remained unestablished, the damages potentially recoverable in the wrongful death action would have been relatively modest, and almost certainly within the insurance limits. Finding that Eric was Catrina's father would maximize the claim against Ryan Air, but would be inconsistent with a recovery by Carter and Brandon. The parties attempted to resolve this dilemma on September 4, 1990, and under the circumstances, the fairness of that agreement must be considered in light of the information then available. The record suggests that the evidence of paternity was overwhelming in 1990. Although Carter and Brandon may have made a tactical choice to offer no contrary evidence at the paternity hearing, the 1992 allocation disputes provided the parents ample opportunity to memorialize any evidence of non-paternity to support a conclusion it was fair to give Carter and Brandon a share of the proceeds. Significantly, the record contains no admissible evidence that would provide any substantial rebuttal to the strong evidence of paternity. See notes 4, 16. . For example, if the court concludes Carter and Brandon had a legitimate 20% chance of defeating Catrina's paternity claim, and the probable recoveiy for the estate was $800,000 in the absence of any statutory beneficiary such as Ca-trina, the total value of the parents' contingent claim would be $160,000. Because a larger recovery from Ryan Air would necessarily require evidence of a statutory beneficiary (i.e., proof of Catrina's paternity), and because that evidence would also render Carter and Brandon ineligible to share in the proceeds calculated on an assumption Catrina was Eric's heir, the parents would not be entitled to any contingent part of the larger recovery. This type of calculation will assist the court in determining whether the parents received more than they should have for their contingent claim. Note that Ryan Air's highest offer was $612,000 as of September 4, 1990, and that Carter and Brandon had indicated a willingness to settle for $820,000 at a time when paternity had not yet been resolved by settlement or court order. The court on remand may have to calculate the probable value of the wrongful death claim if prosecuted for the sole benefit of -the parents. . In Garrick v. Weaver, 888 F.2d 687 (10th Cir. 1989), Roberta Garrick was driving one of the automobiles involved in a collision. Littlepage, a passenger in Garrick's car, was killed. The attorney represented Garrick and her two minor children as well as the estate of Littlepage in their suit against the other driver. There was a conflict between the interests of the Garricks and the Littlepage estate because Garrick was potentially liable to the estate. The attorney informed Garrick and the representatives of the estate of the conflict of interest, but inadequately outlined to Garrick the ramifications of the conflict. Following recovery of damages, the magistrate did not altogether deny fees to the attorney, but based the fees on the value of the services rather than on the contingent fee contract. On appeal, the Tenth Circuit held that it could not say the magistrate abused his discretion in so ruling. Id. at 691. . The parties have frequently remarked on the excellent result the attorneys achieved for the estate. Judge Link properly recognized the "magnificent" legal efforts which maximized the estate's recovery, especially considering the modest insurance limits and Ryan Air's financial condition. The estate's success may be measured by comparing its $4.25 million net recovery with the amount allegedly recovered by the estate of another passenger with two dependent surviving children: $900,000. Nonetheless, the quality and success of that representation cannot justify affirmance of awards that have not been given the scrutiny required by Rule 90.2 and that may have treated Catrina unfairly and unreasonably. . Threatening to withdraw from a wrongful death case shortly before trial would potentially violate DR 2-110(A)(2). Such a violation could have a bearing on attorney's fees. DR 2-110(A)(2) provides: (A) In general. (2) In any event, a lawyer shall not withdraw from employment until he [or she] has taken reasonable steps to avoid foreseeable prejudice to the rights of his [or her] client, including giving due notice to his client, allowing time for employment of other counsel, delivering to the client all papers or property to which the client is entitled, and complying with applicable laws and rules. . A court could conclude that there was no reason in this case for an additional incentive beyond the base contingent rate, because the attorneys would not need the incentive of an incremental increase in the contingency rate to pursue a recovery exceeding the insurance limits. (Although Catrina's mother agreed to pay Hellén and Cowan a 40% contingent fee for services through trial, the estate agreed to pay Hedland and Kashi a 30% contingent fee.) A court could conclude that the typical one-third contingent fee arrangement provides ample incentive to motivate diligent and skilled attorneys to maximize their clients' recoveries. . On remand, the court could choose to apply the "common fund doctrine" to calculate the attorney's fees to be paid by the recipients of the settlement proceeds. Vincent v. Hughes Air W., Inc., 557 F.2d 759, 769-70 (9th Cir.1977). The common fund doctrine provides that a private plaintiff, or his [or her] attorney, whose efforts create, discover, increase or preserve a fund to which others also have a claim is entitled to recover from the fund the costs of [] litigation, including attorney's fees. [T]he doctrine is designed to spread litigation costs proportionately among all the beneficiaries so that the active beneficiary does not bear the entire burden alone and the "stranger" beneficiaries do not receive their benefits at no cost to themselves. Id. at 769. . The only element of the September 4, 1990 settlement that does not require judicial review is the establishment of paternity. Resolving that dispute in favor of paternity did not disadvantage the child; the parents, as adults, are properly foreclosed from raising that issue. The proper course on remand will give them the consideration to which they are entitled for conceding the paternity issue. Assuming the court does not find they are barred by their failure to offer admissible evidence in 1992, they may offer evidence of non-patemity on remand, not to set aside the 1990 paternity finding, but to satisfy Rule 90.2 by demonstrating the value of the claim they relinquished.

10340077

The FIRST NATIONAL BANK OF ANCHORAGE, Trustee, Appellant, v. STATE of Alaska, OFFICE OF PUBLIC ADVOCACY, Guardian, and Ernest M. Schlereth, Guardian ad Litem, Appellees

First National Bank of Anchorage v. State, Office of Public Advocacy

1995-09-08

No. S-6599

330

336

902 P.2d 330

902

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:43:34.517492+00:00

CAP

Before MOORE, C.J., and RABINOWITZ, COMPTON and EASTAUGH, JJ.

The FIRST NATIONAL BANK OF ANCHORAGE, Trustee, Appellant, v. STATE of Alaska, OFFICE OF PUBLIC ADVOCACY, Guardian, and Ernest M. Schlereth, Guardian ad Litem, Appellees.

The FIRST NATIONAL BANK OF ANCHORAGE, Trustee, Appellant, v. STATE of Alaska, OFFICE OF PUBLIC ADVOCACY, Guardian, and Ernest M. Schlereth, Guardian ad Litem, Appellees. No. S-6599. Supreme Court of Alaska. Sept. 8, 1995. John R. Beard, Anchorage, for appellant. Ernest M. Sehlereth, Law Office of Ernest M. Sehlereth, Anchorage, for appellee. Before MOORE, C.J., and RABINOWITZ, COMPTON and EASTAUGH, JJ.

3377

20770

OPINION MOORE, Chief Justice. I. INTRODUCTION This case arises out of an inter vivos revocable trust established by F.H. The Office of Public Advocacy (OPA), acting as F.H.'s guardian, obtained a court order removing First National Bank of Anchorage (First National) as trustee. First National then moved for relief from judgment under Alaska Civil Rule 60(b), arguing, inter alia, that the superior court's order was void for want of jurisdiction. First National appeals the superior court's denial of its Civil Rule 60(b) motion. We affirm. II. FACTS AND PROCEEDINGS In 1980 F.H. established a revocable inter vivos trust, naming herself as lifetime beneficiary and First National as trustee. The trust included the following provision: "Any Trustee at any time acting hereunder may at any time be removed by the Trustor from its office as Trustee hereunder by delivery to it of a written instrument, signed and acknowledged by the Trustor." After F.H. was diagnosed with senile dementia in 1985, a Pioneer Home social worker filed a Petition for Appointment of Guardian and Conservator. The superior court then appointed OPA as F.H.'s guardian. However, the court declined to appoint OPA as conservator at that time, commenting that "[t]he issue of conservator should be held in abeyance until hearing on the matter based on the probable impact of the conservator's appointment upon the Trustee's obligations." The court subsequently granted First National's-unopposed motion to dismiss the petition for conservatorship. In October 1992 OPA moved for clarification of the court's 1985 order appointing OPA guardian. Specifically, OPA wished to clarify whether the court's order authorized OPA to exercise the powers vested in F.H. under the trust document. Although attorney Dan Coffey entered an appearance on behalf of First National, First National did not file an opposition. The court's November 1992 clarification order provided: IT IS HEREBY ORDERED that the previous Order Appointing Guardian is hereby clarified to reflect the original intent thereof in the following respects: 1. The Office of Public Advocacy is appointed as full guardian with all the powers and duties set out in AS 13.26.090 through 13.26.150, including AS 13.26.150(e)(6); ) 2. The Office of Public Advocacy has the power to deal with the [F.H.] Trust, including the trustee, First National Bank of Anchorage, as the ward (trustor) would have if she were not incapacitated. (This power does not include the right to change the testamentary beneficiary designation under the trust, whereby The Alaska Society for the Prevention of Cruelty to Animals, Inc. would receive the corpus of the trust in the event of the ward's demise). 3. In the event that the Office of Public Advocacy or any substituted guardian wishes to terminate the [F.H.] trust or the current trustee's duties, the court appointed guardian will obtain court approval therefor beforehand. In August 1993 the court visitor appointed to review F.H.'s case recommended that Community Advocacy Project of Alaska (CAPA), a private non-profit guardianship organization, take over guardianship duties from OPA. The superior court scheduled a hearing on this proposed transfer and appointed Dan Coffey to appear as F.H.'s attorney and an OPA social worker to appear as court visitor. Coffey moved to withdraw as F.H.'s court-appointed attorney and Ernest Schlereth was appointed in his place. Because of F.H.'s severe dementia, the court subsequently appointed Schlereth to serve as F.H.'s guardian ad litem at the hearing. At the January 1994 hearing, the court visitor recommended transferring guardianship to CAPA. Schlereth expressed his concern that the proposed transfer might unnecessarily deplete the trust funds because both CAPA and First National charged fees for their services. The court stated that it was unwilling to proceed without more information concerning F.H.'s assets. It directed Schlereth to prepare an order requesting First National to provide the necessary information. The court then continued the hearing. On June 15, 1994, OPA moved the court for an order terminating First National as trustee and appointing OPA as successor trustee. This motion was served by mail on First National trust officer Jill Reitz and attorney Dan Coffey. On June 30 the superior court entered the following order: IT IS HEREBY ORDERED that the Motion for Order Terminating the First National Bank as Trustee of the [F.H.] Trust filed by the guardian ad litem is hereby GRANTED. IT IS FURTHER ORDERED that the Public Guardian, through the assistant public guardian assigned to the respondent's ease, Kelly Young, is hereby authorized to give notice to the First National Bank of Anchorage of its termination as trustee as provided under the trust instrument. The Office of Public Advocacy is hereby appointed as successor trustee under the trust. Any changes in the trust instrument effecting final disposition, or other changes in the terms of the trust instrument shall be made only upon prior written court approval. The Office of Public Advocacy may utilize the services of Kemper Securities in order to invest the trust funds which charges no annual fee for its investment services. In a July 5th letter, OPA sent First National a copy of the June 30th order and informed First National that its duties as trustee would terminate in twenty days. OPA also requested an accounting. On July 26 First National moved for relief from judgment under Civil Rule 60(b). It argued (1) that the June 30th order was void for want of jurisdiction; (2) that OPA did not have the statutory authority to serve as trustee; (3) that OPA's duties as F.H.'s guardian would conflict with its duties as trustee; and (4) that there was no "cause" to remove First National as trustee. On July 27 OPA moved, ex parte, for an order to show cause why First National should not be held in contempt for failing to comply with the court's June 30th order. The court granted OPA's request for a show cause hearing. On July 28 OPA moved to quash First National's Rule 60(b) motion because the attorney who had filed the motion, John Beard, had not entered an appearance on behalf of First National. First National opposed. Before the court had ruled on its motion to quash, OPA filed an opposition to First National's Rule 60(b) motion. First National received this opposition on August 8. On August 9, the court entered two separate orders: (1) the court denied First National's Rule 60(b) motion; and (2) the court granted OPA's motion to quash First National's Rule 60(b) motion. On August 19, First National filed its response to the court's order to show cause. In this response, First National again presented its objections to the court's June 30th order. At the August 23rd hearing, the court heard argument concerning the propriety of its June 30th order terminating First National as trustee, and then reaffirmed its decision. This appeal followed. III. DISCUSSION In this appeal, First National asserts that the superior court erred in denying its motion for relief from judgment. Alaska Civil Rule 60(b) provides: (b) Mistakes — Inadvertence—Excusable Neglect — Newly Discovered Evidence— Fraud — Etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. In its motion, First National asserted that it was entitled to relief from judgment under subsections (b)(1), (b)(4) and (b)(6). A court's decision denying a Rule 60(b) motion will be reversed upon a showing of abuse of discretion. Lovell v. Lovell, 645 P.2d 151, 152 (Alaska 1982). Abuse of discretion will be found where this court is "left with a definite and firm conviction, after reviewing the whole record, that the trial court erred in its ruling." Id. A. First National Is Not Entitled to Relief from Judgment Under Civil Rule mm. A party is entitled to relief from judgment under Civil Rule 60(b)(4) when the judgment is void. First National contends that the superior court's jurisdiction over matters concerning trusts may be invoked only by the initiation of proceedings under AS 13.36.035-.060. Alaska Statute 13.36.060 provides: Proceedings under AS 13.36.035 are initiated by filing a petition in the court and giving notice under AS 13.06.110 to interested parties. The court may order notification of additional persons. A decree is valid as to all who are given notice of the proceeding though fewer than all interested parties are notified. Alaska Statute 13.06.110 requires the petitioner to give fourteen days advance notice of the time and date of the hearing. Asserting that a trustee is an "interested person" under AS 13.06.050(20), First National concludes that the court's June 30th order is void because it was entered "without the filing of a petition under AS 13.36.035, and without the notice of hearing required under AS 13.06.110. This argument is unpersuasive. Alaska Statute 13.36.035(a) vests the superior court with exclusive jurisdiction over proceedings initiated by interested parties concerning the internal affairs of trusts. This includes proceedings to remove a trustee. AS 13.36.035(a)(1). However, AS 13.36.035(b) provides: The management and distribution of a trust estate, submission of accounts and reports to beneficiaries, payment of trustee's fees and other obligations of a trust, acceptance and change of trusteeship, and other aspects of the administration of a trust shall proceed expeditiously consistently with the terms of the trust, free of judicial intervention and without order, approval or other action of any court, subject to the jurisdiction of the court as invoked by interested parties or as otherwise exercised as provided by law. (Emphasis added.) Thus a person authorized to remove a trustee under the terms of the trust may do so without application to the court. See Restatement (Second) of Trusts § 107 (1959) (trustee may be removed either by the proper court or by the person, if any, who is authorized under the terms of the trust to remove the trustee). In this case, under the terms of the trust, F.H. had the power to remove the trustee at any time by delivering a signed and acknowledged document to the trustee. The trust further provided that such removal would be effective twenty days after delivery of the document. The court's November 1992 order, clarifying the scope of OPA's guardianship, explicitly provided that OPA had the authority to terminate the trust or remove the trustee subject to court approval. On this record, we conclude that OPA's motion was properly raised in the course of the guardianship proceedings and that the procedures set forth in AS 13.36.060 do not apply. In any ease, First National was afforded both notice and an opportunity to be heard. As OPA points out, First National was served with a copy of OPA's motion to remove First National as trustee on June 16, 1994. First National had thirteen days to respond to the motion — ten days plus three days for service by mail. Alaska R.Civ.P. 77(c); Alaska R.Civ.P. 6(c). First National also had an opportunity to request oral argument. Alaska R.Civ.P. 77(e)(1). However, First National took no action within the required time frame, and the court entered the order as unopposed fourteen days after it was filed. For the foregoing reasons, First National is not entitled to relief from judgment under subsection (b)(4). B.First National Is Not Entitled to Relief from Judgment Under Civil Rule 60(b)(1) or 60(b)(6). First National also cited both subsection (b)(1) and subsection (b)(6) in its motion for relief from judgment. See Alaska R.Civ.P. 60(b)(1) (authorizing court to grant relief from judgment for mistake, inadvertence, surprise or excusable neglect); Alaska R.Civ.P. 60(b)(6) (authorizing court to grant relief from judgment for "any other reason justifying relief from the operation of the judgment"). However, in its motion, First National failed to identify any facts justifying relief from judgment under either subsection. On this record, the superior court properly denied First National's motion for relief from judgment under subsections (b)(1) and (b)(6). C. The Superior Court Did Not Err by Denying First National's Rule 60(b) Motion Without Making Written Findings. On appeal, First National contends that the superior court erred in denying its Rule 60(b) motion because the court failed to provide any written statement explaining its decision. According to First National, the superior court "simply did not want to be vexed by [the] vexing questions" raised by the motion and OPA's opposition. We disagree. In denying a motion for relief from judgment, a court is normally not required to enter written findings of fact and conclusions of law. See Olson v. Olson, 856 P.2d 482, 483-84 (Alaska 1993) (holding that the civil rules "do not require the superior court to issue findings of fact when ruling on a Rule 60(b) motion"). On the record presented in this ease, the superior court did not err in summarily denying First National's motion. D. The Superior Court's Premature Denial of First National's Rule 60(b) Motion Was Harmless Error. First National also argues that the court improperly denied its Rule 60(b) motion before it was ripe. Under Civil Rule 77(d), a moving party has three days from the date an opposition is served to file a reply. First National's attorney received OPA's opposition to First National's motion on August 8. Because First National had until August 11 to file a reply, the court's August 9th denial was premature. However, because First National failed to demonstrate any basis for relief from judgment in its motion, this error is harmless. IV. CONCLUSION First National has failed to establish that it is entitled to relief from judgment under Civil Rule 60(b). Under the terms of the trust, F.H. had the authority to remove the trustee on written notice. As F.H.'s guardian, OPA was authorized to exercise this power subject to court approval. On application to the court, OPA obtained court approval of its decision to remove First National as trustee. On this record, the court's June 30th order removing First National as trustee of the F.H. trust is valid. None of the grounds asserted for obtaining relief from judgment apply in this case. AFFIRMED. MATTHEWS, J., not participating. . The guardianship statute authorizes a guardian to make medical, placement and other related decisions. AS 13.26.150. This includes financial decisions in cases where no conservator has been appointed. AS 13.26.150(c)(6). The con-servatorship statute authorizes a conservator to handle a ward's financial affairs. AS 13.26.280. . As noted in footnote 1, AS 13.26.150(c)(6) authorizes a guardian to make certain financial decisions for a ward: [I]f a conservator for the estate of the ward has not been appointed, the guardian may receive money and property deliverable to the ward and apply the money and property for support, care, and education of the ward; however, the guardian may not apply the ward's money or property for the services as guardian or for room and board which the guardian, or the guardian's spouse, parent, or child has furnished the ward unless, before payment, the court finds that the ward is financially able to pay and that the charge is reasonable; notice of a request for payment approval shall be provided to at least one relative of the ward if possible; the guardian shall exercise care to conserve any excess money or property for the ward's needs. . See AS 13.26.118(a) (providing that a guardian or court-appointed visitor must evaluate the ward's situation and make recommendations on an annual basis). . The court's order provided, in part: Upon a review hearing to determine whether guardianship/conservatorship can be transferred from the Office of Public Advocacy to Community Advocacy Project of Alaska, Inc., the current guardian/conservator has requested that before the Office of Public Guardian consent to such transfer, more information would be required from the trust department of First National Bank of Anchorage, acting as trustee of the [F.H.] Revocable Trust, so that the public guardian may have adequate and complete information concerning the respondent's assets and handling of her financial affairs. Once the Office of Public Advocacy has obtained the information it requests from the First National Bank of Anchorage trust department, a hearing may be scheduled where a determination may be made as to the possible transfer of the guardianship/conservatorship roles to Community Advocacy Project of Alaska, Inc., and also considering the possible transfer of the trusteeship's role to Community Advocacy Project of Alaska, Inc., as is in the best interests of the respondent. The First National Bank of Anchorage shall cooperate with the public guardian as the duly authorized representative of the respondent in supplying in a timely fashion the information requested concerning the records and accounting of the trust as it is also required to do pursuant to paragraph 7 of the trust instrument. . In a supporting affidavit, assistant public guardian Kelly Young stated that First National intended to continue charging trust fees until two certificates of deposit, acquired by the bank for the trust, had matured. Young also stated that First National had failed to transfer the trust's other assets within the required time frame. . AS 13.06.050(20) provides: "interested person" includes heirs, devisees, children, spouses, creditors, beneficiaries and any others having a property right in or claim against a trust estate or the estate of a decedent, ward or protected person which may be affected by the proceeding; it also includes persons having priority for appointment as personal representative, and other fiduciaries representing interested persons; the meaning as it relates to particular persons may vaiy from time to time and must be determined according to the particular purposes of, and matter involved in, any proceeding. . We note that such a provision is consistent with the powers generally entrusted to guardians. See generally 39 Am.Jur.2d Guardian and Ward § 78 (observing that guardians may often act as ward's agent and representative in matters relating to trust property). We also note that First National had an opportunity to challenge the propriety of allowing OPA to exercise the powers vested in F.H. under the trust document but failed to do so. In fact, the record indicates that the provision requiring court approval was added at First National's request. Court approval in this context cannot reasonably be read to mean a proceeding under AS 13.36.060. . Finally First National argues that the superior court erred in granting OPA's motion to quash its motion for relief from judgment. Alaska Civil Rule 11 provides that a pleading which is not properly signed by an attorney of record "shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant." First National's July 26th Rule 60(b) motion was filed by John Beard who had not entered an appearance in the case. John Beard formally entered an appearance on August 5 when Dan Coffey withdrew. The court apparently entered its August 9th order quashing First National's 60(b) motion before receiving Beard's entry of appearance in chambers. Because the court denied First National's Rule 60(b) motion, we need not consider whether the court erred in simultaneously striking this motion from the record under Civil Rule 11. On this record, any error is harmless.

8435801

ALASKA CONSTRUCTION & ENGINEERING, INC., Appellant/Cross-Appellee, v. BALZER PACIFIC EQUIPMENT COMPANY, Appellee/Cross-Appellant

Alaska Construction & Engineering, Inc. v. Balzer Pacific Equipment Co.

2006-01-27

Nos. S-11168, S-11225

932

941

130 P.3d 932

130

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:44:20.949540+00:00

CAP

Before: BRYNER, Chief Justice, EASTAUGH, FABE, and CARPENETI, Justices.

ALASKA CONSTRUCTION & ENGINEERING, INC., Appellant/Cross-Appellee, v. BALZER PACIFIC EQUIPMENT COMPANY, Appellee/Cross-Appellant.

ALASKA CONSTRUCTION & ENGINEERING, INC., Appellant/Cross-Appellee, v. BALZER PACIFIC EQUIPMENT COMPANY, Appellee/Cross-Appellant. Nos. S-11168, S-11225. Supreme Court of Alaska. Jan. 27, 2006. Rehearing Denied April 4, 2006. Thomas S. Gingras and Erin K. Egan, Eide, Miller & Pate, P.C., Anchorage, for AppellantyCross-Appellee. David w. Pease; BuiT; Pease & KurtZ; Anchorage, for Appellee/Cross-Appellant. Before: BRYNER, Chief Justice, EASTAUGH, FABE, and CARPENETI, Justices.

5475

34423

OPINION CARPENETI, Justice. I. INTRODUCTION Alaska Construction & Engineering, Inc. (ACE) leased various pieces of equipment from Balzer Pacific Equipment Company (Balzer). When ACE stopped making rental payments, Balzer sued for breach of contract and sought prejudgment delivery of the equipment. Balzer was allowed to retrieve its equipment after putting up a bond. The jury returned a verdict for Balzer on its breach of contract claims, rejected ACE's affirmative defenses, and awarded ACE $10,000 on one of its counterclaims. Post-trial, the superior court ruled that: (1) Bal-zer was the prevailing party; (2) the attorney's fees provisions in the lease did not apply to Balzer's attorney's fees at trial; and (3) Balzer was entitled to prejudgment interest at the statutory rate of three and three-quarters percent, as opposed to the eighteen percent rate listed on Balzer's invoices to ACE. ACE appeals the prevailing party decision; Balzer appeals the decisions regarding the attorney's fees provisions and the prejudgment interest rate. Because ACE won on relatively minor claims while Balzer won on its main claim, we affirm the superior court's designation of Balzer as the prevailing party. Because the lease and the option to purchase are separate agreements, we hold that the attorney's fees provisions in the option to purchase and the repossession section of the lease are inapplicable to this case. Because Balzer did not offer sufficient record evidence regarding the invoice interest rate, we reject the argument that ACE agreed to pay eighteen percent prejudgment interest. Thus, we affirm the superior court in all respects. II. FACTS AND PROCEEDINGS ACE, an Alaska corporation, contracted with Balzer, an Oregon corporation, to lease various pieces of rock crushing equipment with the option to purchase. Two agreements were involved: a December 15, 2000 agreement for conveyers and accessories at $8,980 per month, and a January 11, 2001 agreement for a screen plant at $7,000 per month. The agreements, which were drafted by Balzer, are identical except as to the items leased and their value. By July 2001 ACE had defaulted on its rental payments. Balzer sued for back rent in Oregon in August 2001. In November 2001 Balzer filed a complaint for breach of contract against ACE in Alaska. Balzer claimed that ACE breached the contract by ceasing to make monthly rental payments and failing to return the equipment. The complaint prayed for the return of the equipment, attorney's fees, and other relief appropriate under the circumstances. Balzer also moved for prejudgment delivery of the equipment pursuant to Alaska Civil Rule 88, and submitted a bond for $228,000, representing the combined contract price of the leased equipment. ACE answered the complaint and opposed the motion for prejudgment delivery. ACE offered various affirmative defenses (including that Balzer materially breached by providing defective equipment), and counterclaimed for unfair trade practices, breaches of contract and the duty of good faith and fair dealing, and intentional and negligent misrepresentation. ACE sought damages of just over $1 million. A hearing on prejudgment delivery was held on December 11, 2001. ACE opposed the motion on the grounds that it had an ownership interest in the equipment stemming from the rent it had already paid. ACE also argued that Balzer's bond of $228,000 was insufficient under AS 09.40.270, which governs undertakings. At the hearing, the superior court ordered Balzer to post a bond of $489,560, about twice the value of the equipment as set out in the lease agreements. ACE then agreed to turn over the equipment to Balzer. In January 2002 Bal-zer picked up the equipment at ACE's Anchorage storage yard and eventually transported it to Oregon. A jury trial was held in February 2003 before Superior Court Judge Philip R. Vol-land. At trial Balzer sought $20,000 in transportation costs for returning the equipment to Oregon, $52,000 in repair costs, and $40,000 in back rent for ACE's alleged running of a "second shift" in violation of the contracts. In its counterclaim, ACE alleged that it incurred losses from defects in the equipment and loss of profits resulting from those defects; it sought damages totaling $359,000. The jury found that ACE breached the contract and violated the implied covenant of good faith and fair dealing. Therefore, it awarded Balzer approximately $50,500 in damages. The jury rejected all of ACE's affirmative defenses. It also rejected three of ACE's counterclaims: that Balzer had breached the contract, contravened the implied covenant of good faith and fair dealing, and made intentional misrepresentations. The jury found that Balzer had made negligent misrepresentations and awarded ACE approximately $10,000 in damages. Following the verdict, Judge Volland considered whether to award attorney's fees. The court made three rulings regarding attorney's fees. First, Judge Volland held that Balzer was the prevailing party for the purposes of Alaska Civil Rules 82 and 79. He also held that, although Balzer was entitled to full attorney's fees for the period before it recovered its equipment on January 10, 2002, none of the lease agreement's attorney's fees provisions applied to fees incurred at trial. Finally, Judge Yolland rejected Balzer's argument that prejudgment interest be calculated at eighteen percent, as provided in invoices Balzer sent to ACE, and instead applied the statutory rate of three and three-quarters percent. This appeal concerns only Judge Volland's post-trial attorney's fees decisions. ACE appeals the superior court's designation of Bal-zer as the prevailing party. Balzer cross-appeals, seeking full attorney's fees and calculation of prejudgment interest at eighteen percent. III. STANDARD OF REVIEW We review a trial court's decision regarding prevailing party status as well as the award of costs and attorney's fees for abuse of discretion. An abuse of discretion exists when an award is arbitrary, capricious, manifestly unreasonable, or improperly motivated. "Interpretation of a contract is a question of law to which we apply our independent judgment." We also apply our independent judgment in interpreting the Alaska Civil Rules. In exercising our independent judgment we adopt the rule of law most persuasive in light of precedent, reason, and policy. IV. DISCUSSION A. The Superior Court Did Not Abuse Its Discretion in Ruling that Balzer Was the Prevailing Party. ACE makes two challenges to the superior court's ruling that Balzer was the prevailing party for the purpose of awarding attorney's fees. First, ACE argues that both it and Balzer were prevailing parties, and that the superior court erred by not awarding attorney's fees to both parties under Alaska Civil Rule 82 and costs under Alaska Civil Rule 79. Second, ACE contends in the alternative that neither party was entitled to attorney's fees and costs. Alaska Civil Rule 82(a) provides that the "prevailing party in a civil case shall be awarded attorney's fees calculated under this rule." Similarly, Alaska Civil Rule 79(a) states that "the prevailing party is entitled to recover costs" allowable under Civil Rule 79(f). We have previously held that "a party does not have to prevail on all the issues in the ease to be a prevailing party" for purposes of attorney's fees and costs. But the "party must be successful with regard to the main issues in the action," though it "need not prevail on every subsidiary issue." The superior court held that Balzer was the prevailing party because Balzer prevailed on the main issue in the case, which the court defined as "recovery of money owed from [Balzer's] lease contracts with Alaska Construction and Engineering." The superior court correctly observed that the jury had rejected all of ACE's defenses and all but one of ACE's counterclaims, and that the amount awarded to ACE was "nominal." ACE argues that since "both of the parties prevailed on some significant claims and were awarded damages . both parties should be considered to be prevailing parties." Even if ACE is correct that it prevailed on "some significant claims," we are not persuaded that the superior court abused its discretion by finding that Balzer was the only prevailing party. "Determination of who the prevailing party is does not automatically follow if the party receives an affirmative recovery, but rather is grounded on which party prevails on the main issues." We have held that "a litigant who successfully defeats a claim of great potential liability may be the prevailing party even if the other side receives an affirmative recovery." Here, it was Balzer, and not ACE, that escaped significant liability — ACE requested $359,000 in damages but Balzer was only found liable for $10,000. But it was also Balzer that had the larger monetary award, succeeding on significant portions of its own claims, including its breach of contract claims, and securing a judgment nearly identical to what it sought. In contrast, ACE received only a partial award and succeeded on its least significant claim. In light of the jury's findings that ACE had breached the contract and violated the implied covenant of good faith and fair dealing, and the jury's rejections of all but ACE's least significant claim, we do not find the superior court abused its discretion in concluding that Bal-zer prevailed on the main issue of the case and that it was entitled to costs and attorney's fees. B. The Attorney's Fee Provision in the Option To Purchase Is Inapplicable. Balzer argues that it is entitled to its actual attorney's fees for all legal costs and fees incurred to obtain repossession of the equipment because both contracts contain a separately executed, identical attorney's fees provision that required ACE to pay Balzer's reasonable attorney's fees if ACE defaulted on any of its contractual obligations. ACE responds that the attorney's fees provision is inapplicable to this case because the parties intended for the fees provision to apply only if ACE exercised its option to purchase the leased equipment, and ACE never exercised its option. The relevant paragraphs of the option to purchase provide: At any time during the term of this lease, provided Lessee has made all payments when due and is not otherwise in default in this or any other agreement with Lessor, Lessee may purchase the equipment described in the lease contract by paying cash to Lessor the amount of [the value of the equipment] less 100% of rentals paid if pm-chased within 90 days, or less 90% of the rentals paid if purchased after 90 days. Time is of the essence of this contract. If Lessee fails to make all payments when due or defaults on any obligation, term of notice, Lessor shall there upon be entitled to immediate possession of all equipment, and in the event of the commencement of any suit or action involving this contract or the disbursements provided by law, Lessor's reasonable costs in recovering said equipment and such additional sum as the court may adjudge reasonable as attorney's fees in such suit or action or upon any appeal there from. Balzer maintains that because the option to purchase allowed ACE to apply past rent payments towards the purchase of the equipment, the attorney's fees provision was triggered not by failure to make payments on the purchased equipment, but by failure to make lease payments that could be credited towards a later purchase. When interpreting a contract, we strive to give effect and reasonable meaning to all provisions of the instrument, and we interpret contract terms so as to avoid interpretations that cause conflicts among the provisions. In light of these principles, we reject Bal-zer's interpretation. Some factors, including the fact that the lease and option to purchase were signed contemporaneously and the fact that the lease and the option to purchase are paginated as a single document, support Bal-zer's interpretation that attorney's fees provisions contained in the option to purchase applied in case of any failure to make lease payments. However, other factors, such as the placement of the lease and the option to purchase under separate subheadings, the fact that each section is signed separately, and the fact that Balzer's interpretation would render redundant paragraph 9(e) of the lease, which allows for attorney's fees and costs associated with repossession of the equipment, lead us to read the lease and the option to purchase as separate agreements. Thus, the attorney's fee provision in the option to purchase only applies to fees associated with securing payment for purchased items. C. The Lease Agreement Does Not Entitle Balzer to Full Attorney's Fees and Costs for Its Efforts After January 10, 2002. Following trial, Balzer moved for full attorney's fees and costs based on the lease contracts. According to the attorney's fees provision in the section of the contract dealing with repossession, ACE was bound: (9) To return the equipment at the end of the rental. If Lessee has not, at its own expense, loaded and returned the equipment at the Lessor's written demand to do so, the Lessee further covenants and agrees: (c) That Lessee will pay Lessor for all costs, including attorney's fees, if any, and Sheriffs costs and fees, and all other expenses incurred by Lessor in effectuating repossession. The superior court agreed that Balzer was contractually entitled to full attorney's fees and costs it incurred in effectuating repossession. Citing Brown v. Baker, however, the court observed that repossession is complete when a party resumes possession of its property. The court then determined that Balzer had effectuated repossession when it obtained possession of the equipment on January 10, 2002 and was only entitled to full fees and costs through that date. The court specifically rejected Balzer's argument that, since it was required to post a bond in order to obtain prejudgment delivery of the equipment, repossession was not completed until the bond was returned after trial. The superior court analyzed Balzer's arguments by looking to AS 09.40.270, which specifies the requirements for undertakings: A peace officer may not take personal property into custody until the plaintiff delivers to the peace officer the affidavit and undertaking of sufficient sureties to the effect that they are bound in double the value of the property for the prosecution of the action and the return of the property to the defendant, if return be adjudged, and for the payment to the defendant of any sum that may be recovered against the plaintiff. (Emphasis added.) Referring to the emphasized portion of the statute, the superior court stated that at the prejudgment delivery hearing "ACE agreed to release the property once Balzer posted a bond for twice the amount of the value of the equipment, and that therefore the bond did not substitute for the property. Rather, the bond acted to secure payment to ACE on its counterclaims against Balzer." The court also rejected Balzer's argument that prejudgment delivery in this case had not re solved the issue of possession, noting that neither party disputed possession at trial and that the jury was not asked to decide which party was entitled to possession. On appeal, Balzer argues that because Alaska Civil Rule 88 is a prejudgment remedy and because the bond stood in the place of the equipment, it did not complete repossession until it received a judgment at trial. Balzer notes that according to Rule 88© the order for seizure lapses if a judgment is not obtained within six months, and argues that therefore it did not repossess the equipment until it received a final judgment. Balzer also maintains that the trial falls under the repossession section's attorney's fee provision because Balzer had to proceed through trial to get transport costs stemming from the repossession. ACE responds that Balzer "effectuated repossession" under the lease agreement when it reclaimed the equipment from ACE since physical possession of the equipment was all that was required. ACE further argues that Balzer's interpretation of Alaska Civil Rule 88 is only correct where possession is in dispute, but that in this case, because ACE voluntarily turned over the equipment in exchange for a bond that secured its counterclaims, no one contested possession of the equipment. Thus, ACE argues that Balzer effectuated repossession of the equipment when it took physical possession of it. ACE also adopts the superior court's position regarding Balzer's bond, arguing that ACE voluntarily relinquished its claims to the equipment once Balzer retook possession, and only sought the bond to guarantee its counterclaims against Balzer. We agree with the superior court's analysis. As noted previously, ACE in its opposition to Balzer's motion for prejudgment delivery initially claimed a "compensable property interest" in the equipment. However, after Balzer posted the replevin bond and retook possession in January 2002, ACE waived any ownership claims to the equipment. Although Balzer correctly observes that a Civil Rule 88 bond stands in the place of personal property, Balzer's further assertion that repossession cannot be completed or "effectuated" until a Rule 88 bond has been returned is undermined by the facts of this case. The superior court did not issue, nor did Balzer request, a Civil Rule 88(e) seizure order. After Balzer repossessed the equipment in January 2002, there was no question of returning it to ACE, nor did ACE persist in asserting that its previous lease payments created an ownership interest under the option to purchase agreement. Balzer filed its first amended complaint in March 2002. In its answer and counterclaims, filed in April 2002, ACE omitted any claim to the equipment, and claimed only damages for unfair trade practices, breach of contract and of the duty of good faith and fair dealing, negligent and intentional misrepresentation, and fraud. The replevin bond has two purposes. It guarantees both the "return of the property to the defendant, if return be adjudged, and . the payment to the defendant of any sum that may be recovered against." In this case, the bond served only the second of its two purposes (guarantee of payment to the defendant), since the parties agreed on ownership of the equipment before trial and Judge Volland did not instruct the jury to decide this issue. Balzer is incorrect in stating that repossession requires final judgment simply because the possessory rights are premised on continued pursuit of the replevin action. Balzer offers several cases for the proposition that replevin actions are temporary in nature and that possession is final only after a final judgment is rendered. Balzer relies primarily on Eastman Kodak Co. v. Thomas Gordon and Associates, Inc. for this proposition. In that case, Eastman Kodak secured return of its equipment through a prejudgment bond, but both parties then let their claims and counterclaims languish for eight years, and the suit was dismissed for lack of prosecution. The court held that Thomas Gordon was the prevailing party because re-plevin plaintiffs are under an obligation to pursue their claims. Balzer maintains that Eastman Kodak supports its position that repossession requires a final judgment because its possessory rights were similarly temporary. But Eastman Kodak is distinguishable from the present case. While in both cases there was no final judgment on the propriety of the prejudgment seizure, in Eastman Kodak this was because the parties allowed the ease to languish. By contrast, in the present case, Balzer and ACE agreed during the replevin hearing that Balzer would take possession of the equipment, following which the parties actively litigated the issues remaining between them. Nor did Balzer offer any evidence that the delayed payments and the costs of securing the bond undermined Balzer's use of the equipment. Balzer was able to make repairs, sell some of the equipment, and prepare the rest for re-rental. Similarly, there is no evidence that the costs of securing the bond and delayed payments undermined Balzer's ability to use the equipment. And as the prevailing party, Balzer can pass costs associated with the bond to ACE, while any delays in payment due to the trial are offset by the award of prejudgment interest. Thus, Balzer did not suffer any detriment that prevented it from exercising control over the property sufficient to have, effected repossession. Balzer also argues that "transportation costs are a part of the repossession" and that "[it] did not effectuate repossession until it recovered its transportation costs at the trial," which required that it defeat ACE's counterclaims. Put differently, Balzer asserts that because it did not receive the transport costs ACE was obligated to pay until Balzer received a final judgment at trial, the attorney's fees associated with securing those transport costs are covered by the repossession section's attorney's fees provision. We reject this argument because it fails to distinguish between Balzer's attorney's fees associated with securing its transport costs and those fees associated with defending against ACE's counterclaims or those related to securing its repair costs. In this combined action, sizeable portions of Balzer's trial attorney's fees were clearly associated with non-transport costs. Balzer successfully defended against ACE's numerous counterclaims, and the repair damages amounted to $30,000 of Balzer's $50,500 judgment. In light of this commingling of issues and effort, we reject Balzer's argument that it can collect full attorney's fees for trial services under the repossession section fee provision simply because it needed to proceed through trial to secure transport costs. To adopt the broad interpretation suggested by Balzer would allow it attorney's fees for claims and defenses not covered by the repossession section's attorney's fees provision. Consequently, we reject the argument that Balzer is entitled to full attorney's fees because it had to proceed through trial to secure its transport costs. D. The Superior Court Properly Calculated Prejudgment Interest at the Statutory Rate. Balzer' also cross-appeals the superi- or court's application of AS 09.30.070's three and three-quarters percent prejudgment interest rate. The lease contract specifies that ACE must either make repairs to the leased equipment or pay Balzer for any repairs according to the prevailing price for such work. The relevant provision states: Lessee further covenants and agrees as follows: (10) To make all necessary repairs if the equipment becomes damaged in operation or in transit at Lessee's own expense and cost, and to hold Lessor harmless for any loss, costs or expenses on account of or arising from repairs or maintenance or claims therefore, or failing to do so, Lessee authorized Lessor to make such repairs for maintenance and agrees to pay the same at the prevailing price for such work. A statement that eighteen percent interest is charged on outstanding balances is printed on the repair invoice Balzer sent ACE soon after Balzer repossessed the equipment. Balzer asserts that the lease incorporates these invoices. The lease provides: Lessee agrees to pay on invoice apportioned charges for tire wear, manganese wear, wear plate or liner wear, conveyor belting, screen cloths, and any apportioned wear costs, lessor will be the sole judge of amount of wear charges. Thus, Balzer argues that ACE agreed to accept invoices bearing the "prevailing price" for repairs, and that the interest rate is part of this prevailing price. As Balzer sees it, ACE accepted the eighteen percent interest rate (or should be deemed to have done so) in the course of its contractually authorized dealings with Balzer. Alaska Statute 45.12.207(a) governs interpretations of leases. That statute provides: If a lease contract involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection is relevant to determine the meaning of the lease agreement. However, AS 45.12.207(a) does not apply to this case, because Balzer did not introduce record evidence that ACE had knowledge of the eighteen percent provision or a reasonable opportunity to reject it before both parties ceased all performance of the contract. Balzer cites only invoices for repairs which it sent to ACE after Balzer took possession of the equipment, by which time ACE had long ceased payments. Additionally, insofar as ACE had an opportunity to object to the eighteen percent provision after Balzer brought suit, we agree with ACE that in litigating Balzer's claim for repairs, ACE objected to the repair invoices as a whole. Additionally, in its order on attorney's fees, the superior court found that the parties' contract "contained no provisions for enhanced interest." After re-examining this matter on Balzer's motion, the superior court again reached the same conclusion in its order on correction of the judgment. Our own search of the record reveals no earlier invoices. Further, at oral argument Balzer's counsel was unable to point to any invoice that included the eighteen percent rate before Balzer repossessed the equipment. We are unable to conclude on the facts presented that ACE acquiesced to the eighteen percent provision. Therefore, we hold that the statutory three and three-quarters percent interest rate for prejudgment interest is appropriate in this case. V. CONCLUSION Because Balzer succeeded on the primary issues at trial, the superior court did not abuse its discretion in deeming Balzer to be the prevailing party and awarding it attorney's fees and costs under Alaska Civil Rules 82 and 79. Because the lease and the option are separate agreements, we reject Balzer's argument that the attorney's fees provision of the option to purchase is applicable to this case. Further, because the parties did not dispute ownership after Balzer repossessed the equipment, Balzer cannot collect its trial costs under the repossession section of the lease. While Balzer did have to undergo trial after repossession to secure repossession-related transport costs, it cannot recover attorney's fees for that effort because its trial costs include fees for claims and defenses not incurred while securing the transport costs. Awarding it full fees would overcompensate Balzer. Because ACE did not agree to the eighteen percent interest rate listed on Balzer's repair invoices, the superior court correctly set prejudgment interest at the statutory rate. In sum, we AFFIRM the decision of the superior court in all respects. MATTHEWS, Justice, not participating. .Alaska Statute 09.40.270 states in relevant part: A peace officer may not take personal property into custody until the plaintiff delivers to the peace officer the affidavit and undertaking of sufficient sureties to the effect that they are bound in double the value of the property for the prosecution of the action and the return of the property to the defendant, if return be adjudged, and for the payment to the defendant of any sum that may be recovered against the plaintiff. . The lease agreements required ACE to pay Bal-zer an additional $7,990 per month if it ran the leased equipment more than eighty hours per week. The second shift was the alleged additional use, and Balzer argued that ACE had run a second shift for five months. . ACE's original complaint requested over $1 million in damages. However, ACE dropped its treble damages claim over the course of litigation and claimed $359,000 in damages at closing arguments. . Fernandes v. Portwine, 56 P.3d 1, 4-5 (Alaska 2002). . Id. at 5. . Peterson v. Ek, 93 P.3d 458, 463 (Alaska 2004). . Airoulofski v. State, 922 P.2d 889, 892 (Alaska 1996). . Casey v. Semco Energy, Inc., 92 P.3d 379, 382 (Alaska 2004). . Hickel v. Southeast Conference, 868 P.2d 919, 925 n. 7 (Alaska 1994) (internal citation omitted). . Id. . Cont'l Ins. Co. v. U.S. Fid. & Guar. Co., 552 P.2d 1122, 1125 (Alaska 1976). . Buoy v. ERA Helicopters, Inc., 771 P.2d 439, 448 (Alaska 1989). . ACE also cites Andrus v. Lena, 975 P.2d 54 (Alaska 1999), for the proposition that a party may prevail even though it did not secure all of the relief sought, and Blumenshine v. Baptiste, 869 P.2d 470 (Alaska 1994), for the idea that a party should not be penalized for a small recovery. In Andrus we held that the plaintiff was the prevailing party because it won on its key claims even though it lost on some claims; the size of the monetary award was less important than the fact that plaintiff succeeded on the claims central to its suit. Andrus, 975 P.2d at 58. Andrus does not help ACE because ACE lost on the breach of contract and intentional misrepresentation claims that would have shielded it from liability and allowed it to collect significant damages. Neither does Blumenshine support ACE's argument. In that case we awarded prevailing party status to the plaintiff in an automobile accident case, notwithstanding his recovery of past medical expenses, and only about $16,000 for past and future physical impairment and pain and suffering although he claimed $700,000. Blumenshine, 869 P.2d at 474. We held that the total award, while small in relation to what was claimed, still constituted "a significant damage award on the main issues." Id. at 474. This characterization supports the award of prevailing party status to Balzer even though it did not win on its second-shift claims, but is inapplicable to ACE given its failure to win on its affirmative defenses or its primary counterclaims. . Modern Constr., Inc. v. Barce, Inc., 556 P.2d 528, 530 (Alaska 1976) (quoting 4 Samuel Williston & Walter Jaeger, Williston on Contracts § 619, at 731 (3d ed.1961)). . Wessells v. State, Dep't of Highways, 562 P.2d 1042, 1049 n. 23 (Alaska 1977) (quoting McBain v. Pratt, 514 P.2d 823, 828 (Alaska 1973)). . 688 P.2d 943, 950 (Alaska 1984). . Alaska Civil Rule 88 states in relevant part: (a) Prejudgment Delivery of Personal Property to Plaintiff; Availability. When the plaintiff has commenced a civil action to recover possession of personal property, the plaintiff may make application to the court to have the property delivered to the plaintiff. The court may order the prejudgment seizure of the property in accordance with the provisions of this rule. (I) Duration and Vacation of Prejudgment Seizure Orders Issued Pursuant to Hearing. A prejudgment seizure order issued pursuant to a hearing provided for in section (c) of this rule shall unless sooner released or discharged, cease to be of any force or effect and the property seized shall be released from the operation of the order at the expiration of six (6) months from the date of the issuance of the order, unless a notice of readiness for trial is filed or a judgment is entered against the defendant in the action in which the order was issued, in which case the order shall continue in effect until released or vacated áfter judgment as provided in these rules. . Alaska Civil Rule 88(e) provides: If at the hearing the court finds that the plaintiff has met the burden of proof as set forth in paragraph (d) of this rule, the court shall issue an order prescribing the written undertaking, with sufficient sureties, to be provided by the plaintiff and directing a peace officer to seize and take into custody the property described in the affidavit upon the furnishing of the undertaking by the plaintiff. . AS 09.40.270. . E.g., Burroughs v. U.S. Fid. & Guar., 74 N.M. 618, 397 P.2d 10 (1964) overruled by Quintana v. Knowles, 113 N.M. 382, 827 P.2d 97 (1992) (describing trial court proceedings where plaintiff who recovered possession of tractor and trailer after posting replevin bond, then litigated ownership at trial was thus adjudged to be owner of tractor and trailer and entitled to possession); America Rents v. Crawley, 77 Ohio App.3d 801, 603 N.E.2d 1079 (1991) (after default judgment in creditor's favor, creditor sought to repossess consumer goods from debtor who defaulted on promissory note, but trial court merely confirmed creditor's ownership and awarded money damages to creditor since replevin is prejudgment rather than postjudgment remedy). . 789 So.2d 360, 361-62 (Fla.Dist.App.2001). . Id. at 364. . As Balzer is entitled to fees associated with securing its transport costs, it arguably could have requested apportionment of its attorney's fees, gaining full fees for transport-cost related efforts and normal Civil Rule 82 fees for its defense against ACE's counterclaims and its securing of repair costs. However, since Balzer did not request apportionment in the superior court, we need not reach this argument. . Compare A & G Constr. Co., Inc. v. Reid Bros. Logging Co., Inc., 547 P.2d 1207 (Alaska 1976). In that case, a materials supplier and a highway construction contractor entered a contract for the sale of highway construction materials. The supplier sent a letter to the contractor notifying the contractor that it would increase the price of the materials. Because the contractor continued to receive and accept the materials thereafter without objecting in writing to the price increase (as required for sales contracts of $500 or more, under AS 45.02.201, formerly numbered 45.05.020), the contractor was obligated to pay the increased rate for materials received after notice of the increased price. Id. at 1215-17. According to AS 45.02.201(c), "[a] contract which does not satisfy [the writing requirement] but which is valid in other respects is enforceable . (3) with respect to goods . which have been received and accepted." (Emphasis added.)

8436226

Bruce Scott McQUADE, Appellant, v. STATE of Alaska, Appellee; Forrest U. Johnston, Appellant, v. State of Alaska, Appellee

McQuade v. State

2006-03-10

Nos. A-8754, A-8773

973

977

130 P.3d 973

130

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T18:44:20.949540+00:00

CAP

Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

Bruce Scott McQUADE, Appellant, v. STATE of Alaska, Appellee. Forrest U. Johnston, Appellant, v. State of Alaska, Appellee.

Bruce Scott McQUADE, Appellant, v. STATE of Alaska, Appellee. Forrest U. Johnston, Appellant, v. State of Alaska, Appellee. Nos. A-8754, A-8773. Court of Appeals of Alaska. March 10, 2006. Sharon Barr, Assistant Public Defender, and Barbara K Brink, Public Defender, Anchorage, for AjDpellant Brace Scott McQuade. Herman G. Walker Jr., Law Offices of Linda A. Limón, Anchorage, for Appellant Forrest U. Johnston. Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

2373

14375

OPINION MANNHEIMER, Judge. Bruce Scott McQuade and Forrest U. Johnston appeal their convictions for first-degree robbery. McQuade and Johnston contend that they were subjected to an illegal traffic stop, and that all evidence stemming from that traffic stop should be suppressed. For the reasons explained here, we conclude that the traffic stop was justified because the police had reasonable suspicion that McQuade's and Johnston's vehicle was fleeing from the scene of a just-committed robbery. We therefore affirm McQuade's and Johnston's convictions. Underlying facts At 2:43 a.m. on September 6, 2002, a dispatcher with the Anchorage Police Department notified officers that a robbery had just taken place at the Williams gas station on Huffman Road, near the New Sewai'd Highway. The suspect was described as a stocky white male, 5'6" to 5'8" tall, wearing dark blue sweat clothes and a heavy dark jacket, with a white cloth over his face. The dispatcher advised officers that this individual had used a "finger in [his] pocket" to imply possession of a gun. Because the store clerk told the police that the robber had departed on foot, the police dispatch did not contain a vehicle description. The description of the robber and his mo-dus operandi (ie., the robber's use of an implied gun) struck a chord with Police Sergeant Chris Sims. Sims had assisted in the investigation of a similar robbery at another gas station (the Chevron station located at the corner of Fireweed Lane and the New Seward Highway) one week earlier. This robbery remained unsolved. However, during the investigation of the Chevron robbery, a police dog had tracked the robber's scent to a nearby parking lot, where the trail ended — thus leading the police to conclude that the robber had entered a waiting vehicle. Based on the locations of the two robberies (gas stations situated along the New Seward Highway), and working under the assumption that the Williams robber had likewise fled to a waiting vehicle, Sergeant Sims concluded that the robbery suspect would likely be driving north on one of Anchorage's two main north-south arteries: Minnesota Drive or the New Seward Highway. Sims decided to set up an observation post on the Dowling Road overpass of the New Seward Highway, to watch for north-bound traffic. Approximately five to six minutes after the robbery dispatch was broadcast, Sims positioned his ear on the Dowling Road overpass. During the three to four minutes that followed, Sims observed fewer than ten ears pass by going north. Then a small sedan caught his attention. The car, which had been traveling at or near the speed limit, slowed down as it approached his patrol vehicle. Sims could see that the car had two occupants: two white males with closely shaved heads. These two men avoided looking at Sims, and neither of them was wearing a seatbelt. Sims decided to follow this sedan. He pulled out into the left-hand lane of the highway, behind the sedan. His intention was to catch up to the sedan and more closely observe the car's occupants and their clothing. But as the two cars (the sedan and the police patrol vehicle) approached the vicinity of the Tudor Road exit, the sedan suddenly "crossed [from the left-hand lane] over into the right[-hand] lane and then immediately [onto] the Tudor exit ramp." Sims later could not recall whether the sedan signaled this abrupt lane change, but he testified that, under the traffic laws, drivers are required to signal for at least 100 feet before changing lanes — and, here, the sedan crossed two lanes within that short distance. Sims stated that he believed the driver of the sedan was trying to avoid him, and this behavior heightened his suspicions. However, despite the traffic violation (the failure to properly signal the lane change and exit from the highway), Sims decided not to pull the car over immediately — because, at that point, he believed he "was dealing with something a lot more significant than just a traffic violation." As the two cars exited the New Seward Highway onto Tudor Road, with the patrol car following the sedan, Sergeant Sims observed the passenger in the sedan moving around in his seat. Sergeant Sims radioed his dispatcher that he believed the sedan was involved in the Huffman Road gas station robbery, and that he was looking for a well-lit place to conduct a traffic stop. At 2:56 a.m. — that is, thirteen minutes after the report of the robbery was broadcast — Sergeant Sims activated his emergency lights, called in the license plate number of the sedan, and conducted a traffic stop at the intersection of Tudor Road and Bragaw Street. When Sims approached the driver's window, he noticed that the passenger (later identified as Bruce McQuade) was wearing dark blue sweat pants and a dark blue sweat top. In addition, there was a heavy black jacket lying on the back seat, and this jacket appeared to be covering some items. The" driver of the sedan was identified as Forrest Johnston. After seizing the sedan and obtaining a search warrant, the police searched the vehicle and found $60 in cash, including a distinctive $5 bill with an orange stain that the Williams store clerk had said was stolen during the robbery. The police also found two pairs of gloves, a hat, a white T-shirt, and a navy jacket. After McQuade and Johnston were indicted for first-degree robbery, they moved to suppress the evidence found in the sedan. McQuade and Johnston argued that Sergeant Sims had lacked reasonable suspicion to stop them as robbery suspects, and that he had lacked probable cause to stop them for a traffic violation. In addition, Johnston (but not McQuade) argued that the traffic stop was pretextual. In response to this suppression motion, the superior court — Judge Larry D. Card — held an evidentiary hearing to investigate MeQuade's and Johnston's claims. Sergeant Sims was the sole witness at this hearing. After hearing Sims's testimony, Judge Card denied the defendants' motion to suppress. Judge Card found that Sims had had a reasonable suspicion that the occupants of the car were involved in the Huffman Road gas station robbery. The judge also found that the driver of the sedan had committed a traffic infraction when he abruptly exited the New Seward Highway at the Tudor Road off-ramp. The traffic stop was based on reasonable suspicion that one or both of the occupants of the sedan were involved in the just-committed robbery As explained above, Judge Card found both that there was reasonable suspicion for the stop (based on the recent robbery) and that the stop was justified because the officer saw the driver of the sedan commit a traffic infraction. With regard to the traffic infraction, it appears that Judge Card was correct. Under 13 AAC 02.200(a), a driver making a right turn must travel "as close as practicable to the right-hand curb or edge of the roadway" both during the approach to the turn and while executing the turn (except when a traffic-control device requires otherwise). According to Sergeant Sims's testimony, MeQuade's and Johnston's sedan was traveling in the left-hand lane of the New Seward Highway, and then it veered suddenly across the right-hand lane and onto the Tudor Road exit ramp. This maneuver appears to have violated 13 AAC 02.200(a). We acknowledge that, according to the record in this case, Sims did not subjectively rely on this traffic infraction when he stopped the sedan. But if Sims observed the driver of the sedan violating 13 AAC 02.200(a), it does not matter whether Sims subjectively relied on this rationale for the traffic stop. As the Court recognized in Hamilton v. State, 59 P.3d 760 (Alaska App.2002), the State can "rely on an after-the-fact justification [for an investigative stop], so long as the facts known to the officers at the time of the . stop [were] sufficient to establish the legal foundation for this justification." Id. at 764. However, we are hesitant to definitively resolve the issue of whether the driver of the sedan (Johnston) violated 13 AAC 02.200(a); the parties do not discuss this particular traffic regulation in their briefs, and this regulation has not previously been construed in a published Alaska appellate decision. Moreover, we conclude that we need not resolve this issue, because we agree with Judge Card's second rationale for upholding the traffic stop: Sims had reasonable suspicion that one or both of the occupants of the sedan were involved in the just-committed robbery. Under Alaska's Coleman test, a police officer may perform an investigative stop— i.e., temporarily detain a person for questioning — when the officer has a reasonable suspicion that imminent public danger exists or that serious harm to persons or property has recently occurred. In this case, McQuade and Johnston concede that the crime of robbery qualifies as a sufficient harm to persons or property to satisfy the Coleman test. However, McQuade and Johnston argue that the police lacked reasonable suspicion that they — or rather, that the as-yet-unidentified occupants of the sedan' — had anything to do with the just-committed robbery. To satisfy the "reasonable suspicion" standard, an officer must have "some minimal level of objective justification for making the stop". This objective justification must be "something more than an inchoate and unparticularized suspicion or hunch". The officer must be able to point to "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion." Here, one could argue that Sergeant Sims began with just a hunch — the hunch that the person or persons who committed the robbery of the Chevron station one week earlier had just robbed the Williams station, and that the robbers would be driving away from the scene of the robbery to the north',(i.e., toward the center of Anchorage) along one of the major north-south arteries. However, events soon began to corroborate Sims's hunch. Traffic along the New Seward Highway was sparse at three o'clock in the morning, and McQuade's and Johnston's sedan passed by Sims's Dowling Road observation post approximately ten minutes after the robbery was reported — in other words, within the windoW of time during which one might expect the robbers to pass by. The sedan was occupied by two white males — which was consistent with the hypothesis that the sedan contained the robber (described by the store clerk as a white male) and a get-away driver. The sedan slowed down as it passed Sims's patrol car — suggesting that the driver had seen the patrol car — but the two men in the sedan did not look at the patrol car (behavior that Sims found noteworthy). In addition, the two men were not wearing seat belts — a possible indication that they had gotten into the car in haste. As we already described, as soon as the sedan went past, Sims pulled his patrol ear onto the highway and began following the sedan as it traveled in the left-hand lane. Sims was preparing to pull alongside the sedan to get a better look at the driver and the passenger when the sedan abruptly left the highway, cutting across the right-hand lane and taking the Tudor Road exit ramp (the very next exit as one proceeds north from Dowling Road). Sims concluded that the driver of the sedan was attempting to avoid his scrutiny. Under the circumstances, this was a reasonable conclusion. Sims followed the sedan up the exit ramp and then onto Tudor Road, headed east. Sims could see the passenger moving around in his seat. At this point, Sims advised his dispatcher that he believed the occupants of the sedan were involved in the robbery, and that he was preparing to stop the sedan as soon as he arrived at a well-lit location— which turned out to be the intersection of Tudor and Bragaw. Based on the observations and circumstances we have just described, Sergeant Sims had "more than an inchoate and unpar-ticularized suspicion or hunch" that the occupants of the sedan were involved in the robbery. The timing of the sedan's arrival at Sims's observation post on Dowling Road, the behavior of the driver and the passenger when they saw Sims and his patrol car, the sedan's ensuing abrupt departure from the highway, and the unusual movements of the passenger as Sims continued to follow the sedan eastward on Tudor, all combined to provide Sims with "specific and articulable facts" that, given the recent commission of a serious felony, warranted an investigative intrusion. We therefore agree with Judge Card that the investigative stop in this ease was lawful under the Coleman test. Judge Card properly denied McQuade's and Johnston's suppression motion. Conclusion The judgements of the superior court are AFFIRMED. . AS 11.41.500(a)(1). . The sole reference to 13 AAC 02.200(a) in Alaska appellate decisions occurs in Bruns v. State, Alaska App. Memorandum Opinion No. 4690, p. 2; 2003 WL 1878981, *1 (April 16, 2003), where this Court held that a motorist violated this regulation by making a right-hand turn from the left-hand lane of the road. . Coleman v. State, 553 P.2d 40, 43 (Alaska 1976); see also Waring v. State, 670 P.2d 357, 365 (Alaska 1983); Metzker v. State, 658 P.2d 147, 149-50 (Alaska App.1983). . In the Matter of J.A., 962 P.2d 173, 176 (Alaska 1998) (internal citations omitted). . Id.; see also Gutierres v. State, 793 P.2d 1078, 1080 (Alaska App.1990) ("A reasonable suspicion is one that has some factual foundation in the totality of the circumstances observed by the officer in light of the officer's knowledge."). .Waring v. State, 670 P.2d 357, 365 (Alaska 1983), quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968).

10345574

STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION ex rel. Gail INMAN, Appellant, v. Gary Raymond DEAN, Appellee; STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION, Appellant, v. Donald CROSS, Appellee

State, Department of Revenue, Child Support Enforcement Division ex rel. Inman v. Dean

1995-08-25

Nos. S-6106, S-6116

1321

1326

902 P.2d 1321

902

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:43:34.517492+00:00

CAP

Before MOORE, C.J., RABINOWITZ, MATTHEWS, COMPTON, and EASTAUGH, JJ.

STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION ex rel. Gail INMAN, Appellant, v. Gary Raymond DEAN, Appellee. STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION, Appellant, v. Donald CROSS, Appellee.

STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION ex rel. Gail INMAN, Appellant, v. Gary Raymond DEAN, Appellee. STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION, Appellant, v. Donald CROSS, Appellee. Nos. S-6106, S-6116. Supreme Court of Alaska. Aug. 25, 1995. Mary A. Gilson and Diane Wendlandt, Assistant Attorneys General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellant Child Support Enforcement Division. No appearance for Appellee Dean. Richard P. Newman, Law Office of Richard P. Newman, Anchorage, for Appellee Cross. Before MOORE, C.J., RABINOWITZ, MATTHEWS, COMPTON, and EASTAUGH, JJ.

2856

17906

Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ. OPINION MOORE, Chief Justice. In separate proceedings, the Child Support Enforcement Division (CSED) moved to reduce to judgment significant child support arrearages owing against two noncustodial fathers, Donald Cross and Gary Dean. The superior court in each case denied CSED the right to recover support installments that accrued more than ten years before the date of the motion. Each court held that former AS 09.10.040, the statute of limitations applicable to "an action upon a judgment," bars the collection of past-due child support when a judicial enforcement action is not commenced within ten years of the missed payment. Because we conclude that the lower courts incorrectly applied AS 09.10.040, we vacate the orders of the superior courts and remand for further proceedings. 1. FACTS AND PROCEEDINGS In Cross v. Cross, a superior court issued an order in July 1972 requiring noncustodial parent Donald Cross to pay $231.75 per month to support his three children. Despite the order, the record indicates that Cross never voluntarily met his obligation. After approximately ten years of non-eompliance, CSED initiated administrative enforcement measures against Cross. In February 1981, CSED attempted to locate Cross using the Federal Parent Locator Service. In November 1985, CSED notified him that it would be attaching his federal income tax refunds due to his child support delinquency. CSED successfully attached Cross's federal income tax refunds in 1988, 1989, and 1990, recovering' $2,662.42 towards unpaid support. By mid-April 1993, Cross's unpaid support arrearages plus interest totalled $26,149.88. On August 16,1993, CSED moved in court to establish a final judgment for the delinquent support. AS 25.27.226 (to collect past-due child support, CSED or custodian of child may file motion requesting establishment of judgment). In State, CSED v. Dean, a superior court ordered noncustodial parent Gary Dean to pay $300.00 per month in support for his two children starting in October 1977. Over the next few years, arrearages in unpaid support accumulated to $16,200. In May 1982, CSED filed a complaint in an Alaskan court under the Uniform Reciprocal Enforcement of Support Act (URESA), AS 25.25.010 et seq., seeking to have an Oregon court recognize the support order against Dean. After a reciprocal order was entered in Oregon, from November 1984 until December 1990 Dean made periodic child support payments. Nev ertheless, as of May 1993, Dean owed $54,-507.24 in unpaid child support and interest. On June 30, 1993, CSED moved to reduce Dean's arrearages to judgment. AS 25.27.226. In both Cross and Dean, the obligor parent opposed the State's motion, arguing that the statute of limitations applicable to actions upon a judgment barred CSED's motion to collect that portion of arrearages which accrued more than ten years before. AS 09.10.040. CSED denied in both instances that it had delayed enforcement. According to CSED, its motions to establish a final judgment for support arrearages represented continuations of proceedings timely begun at the administrative level. As such, CSED argued, the limitations statute should be deemed tolled, and none of the support ar-rearages should be considered time-barred. The Cross and Dean superior courts agreed with the obligor parents and ruled that in these cases, AS 09.10.040 barred the recovery of unpaid child support that accrued before August 16, 1983, and June 30, 1983, respectively. CSED moved unsuccessfully for reconsideration in each case. The cases were consolidated for purposes of appeal. Alaska R.App.P. 204(g). II. DISCUSSION This appeal concerns the enforcement of two child support orders, entered by Alaska courts, requiring noncustodial parents to make regular support payments for the benefit of their minor children. As in the majority of jurisdictions, Alaska considers periodic child support obligations "judgments" that vest when an installment becomes due but remains unpaid. AS 25.27.225; Young v. Williams, 583 P.2d 201, 205 & n. 11 (Alaska 1978); see also Britton v. Britton, 100 N.M. 424, 671 P.2d 1135, 1138-39 (1983). Each unpaid child support obligation is considered a "judgment" because, like court-rendered judgments, child support arrearages are not subject to retroactive modification. See, e.g., Carter v. Carter, 611 A.2d 86, 87 (Me.1992) ("[T]he right to the payment of support becomes vested as it becomes due. Thus an order of child support is essentially a 'judgment in installments'.... "); Britton, 671 P.2d at 1138-39 ("[E]ach monthly child support installment mandated in the final decree was a final judgment, not subject to retroactive modification."); Alaska R.Civ.P. 90.3(h)(2). In finding the oldest portion of delinquent support payments time-barred, the Cross and Dean superior courts applied the statute of limitations applicable to an "action upon a judgment." AS 09.10.040. In 1993, when these motions were filed, AS 09.10.040 provided as follows: Action upon judgment or sealed instrument in 10 years. No person may bring an action upon a judgment or decree of a court of the United States, or of a state or territory within the United States, and no action may be brought upon a sealed instrument unless commenced within ten years. (Emphasis added.) Both courts concluded that because a portion of the missed support payments accrued more than ten years before the instant court proceedings, any missed support obligations that vested earlier than ten years before the State's current "actions" were barred from collection. We conclude that by applying former AS 09.10.040 in this context, each court erred. Alaska Statute 09.10.040 applies when litigants "bring an action" and thus governs only proceedings commenced by the filing of a complaint. In each of the present cases, when CSED moved to establish a judgment for support arrearages pursuant to AS 25.27.226, the agency did not initiate a new "action" to establish the non-custodiai parent's liability. Rather, CSED sought to collect a valid, unsatisfied domestic judgment, which it already possessed, for a specified sum of money. In this sense, although termed a "motion requesting establishment of a judgment" under AS 25.27.226, each proceeding was in aid of enforcement of a judgment which was already in existence. It is well-settled that executing upon a judgment does not operate to commence an entirely new civil action. Our statutes provide a separate standard for executions, imposing no definitive time limitation upon their commencement. AS 09.35.020. If a judgment creditor seeks to execute upon a valid judgment after a lapse of five years, however, good cause must be demonstrated for the delay: Issuance of execution after five years. When a period of five years has elapsed after the entry of judgment and without an execution being issued on the judgment, no execution may issue except by order of the court in which judgment is entered. The court shall grant the motion if the court determines that there are just and sufficient reasons for the failure to obtain the writ of execution within five years after the entry of judgment. AS 09.35.020 (emphasis added); see also Alaska R.Civ.P. 69(d). Because the procedures employed by CSED in Dean and Cross were preparatory to the issuance of executions, the trial courts should have entered consolidated judgments and then utilized the time limitation set forth in AS 09.35.020 and Civil Rule 69(d), which directly govern execution proceedings. This holding, which differentiates between an action upon a judgment and an execution, is in step with early decisions of the Oregon Supreme Court construing the predecessors of our modern statutes. By the mid-nine teenth century, the Oregon Code of Civil Procedure contained a statute of limitations that, like former AS 09.10.040, provided that the following actions would be barred unless commenced within ten years: 1. An action upon a judgment or decree of any court of the United States, or of any state or territory within the United States; 2. An action upon a sealed instrument. Or.Code Civ.P. § 5 (1862). The Oregon Civil Code provided, like AS 09.35.020, that after five years from the entry of judgment, execution could not issue except upon leave from court. Gen.Stat.Or. § 292 (1862). In at least two early decisions construing these statutes, the Oregon Supreme Court made clear that the statute of limitations restricting actions upon a judgment did not apply to executions upon domestic judgments. Murch v. Moore, 2 Or. 189, 190 (Or.1866), held that the life of an Oregon judgment is not limited by the statute of limitations found in section 5. Id. at 190. Rather, under the execution statutes, "it is in the power of the judgment creditor to keep his judgment alive until it is discharged by payment, be that period long or short." Id. at 191. Later, in Strong v. Barnhart, 5 Or. 496 (Or.1875), the court reiterated that the means for enforcing a domestic judgment is by execution, not by bringing a new action: The means provided by the statute for enforcing a judgment is by execution, which may be issued at any time within five years of the rendition of the judgment, after which time it can only be enforced by obtaining leave to issue an execution- If it were true that § 5 of the statute of limitations, in the absence of any other statute on the subject, would embrace domestic judgments, still, when there is a subsequent statute providing that execution may issue at any time after five years, upon leave being obtained, without any limitation as to time, we cannot see how the general statute on that subject should control. Id. at 500. We see no reason to vary from this interpretation. Therefore, the standard provided by AS 09.35.020 and Civil Rule 69(d) will govern on remand. In order to collect unpaid obligations that vested more than five years before the current proceedings, execution will not issue unless CSED can show to the court's satisfaction "just and sufficient reasons for the failure to obtain the writ of execution." AS 09.35.020. CSED may be able to demonstrate any number of valid reasons supporting its decision to delay formal execution. Foremost among the reasons supporting a "good cause" determination in Cross and Dean appear to be the State's previous administrative efforts to collect delinquent support payments. CSED attached Cross's federal income tax refunds in 1988, 1989, and 1990, and CSED brought a URESA proceeding to have the support order against Dean registered in his new home state. As CSED notes in its brief, the legislature expressly granted CSED the authority to independently employ extensive support enforcement mechanisms such as these. See, e.g., AS 25.27.230 (authorizing CSED to assert a lien upon real or personal property of obligor); AS 25.27.250 (granting CSED power to issue an order to withhold and deliver obligor's real or personal property, including earnings due); AS 25.25.010-.270 (URESA procedures to register support order in foreign jurisdiction). Of the array of independent powers available to CSED to collect upon delinquent child support "judgments," many are as effective as those available in the courts. We note that, like a motion to reduce arrearages to final judgment under AS 25.27.226, we consider the administrative remedies employed here akin to a standard execution for purposes of AS 09.35.020. Evidence of previous attempts to execute tends to support a finding of "good cause" under AS 09.35.020 and Civil Rule 69(d). However, on remand CSED must further show "good cause" to collect arrearages, if any, which accrued more than five years before any particular administrative effort to collect the accrued debt. III. CONCLUSION The superior courts erred as a matter of law by applying AS 09.10.040 to CSED's motions to collect past-due child support. CSED's motions to establish a final judgment for unpaid child support are proceedings in aid of enforcement of existing domestic judgments. As such, AS 09.10.040 has no application to them. As to the portion of past-due payments that were more than five years old at the time of CSED's motion, execution shall not issue unless the conditions in AS 09.35.020 and Civil Rule 69(d) are satisfied. On remand, CSED must be given the opportunity to show just and sufficient reasons to justify the delay in enforcement, which may include evidence of previous administrative executions. Accordingly, we VACATE the orders of the superior court and REMAND for further proceedings consistent with this opinion. . The legislature's recent amendment to AS 09.10.040 made stylistic changes to the body of the statute and added a subsection specifically controlling actions to collect child support ar-rearages. AS 09.10.040, as amended by ch. 86, § 1-2, SLA 1994. The amendment became effective September 4, 1994, after these motions were filed. Thus, the changes have no controlling significance here. . Cross's support obligation decreased in November 1981 when two of the three children were adopted. The third child was emancipated in June 1984. . Dean's obligation was reduced in May 1989 when one child became emancipated. The remaining support obligation continued in force until the other child reached majority in March 1992. . Original orders of support are also considered "judgments," which under certain conditions, are prospectively modifiable. Alaska R.Civ.P. 90.3(h)(1) (permitting modification of a final child support award if allowed by federal law or upon material change of circumstances). . For example, the common law required the institution of a new action before a foreign judgment could be enforced by a sister state. 30 Am.Jur.2d Executions and Enforcement of Judgments § 775 (1994); see, e.g., Young, 583 P.2d at 205 (holding that the ten-year limitations statute restricts an action to obtain a judgment for past-due child support arising from an unregistered California decree); Hamilton v. Seattle Marine & Fishing Supply Co., 562 P.2d 333, 337 n. 16 (Alaska 1977) (applying the ten-year limitations statute to a creditor's action to establish a judgment on the basis of one rendered by a Washington court). Most jurisdictions now allow the registration of foreign judgments, which enables them to be enforced without commencing another action. See, e.g., Uniform Enforcement of Foreign Judgments Act, AS 09.30.200-.270; Uniform Reciprocal Enforcement of Support Act (URESA), AS 25.25.254-.258. . "It has been said that a motion to enforce a judgment at law is neither an action nor a special proceeding of a civil nature, but is merely a subsequent step in an action or special proceeding already commenced, which, with regard to the time within which the motion may be taken, is governed entirely by the provisions of the statute specially relating thereto." 30 Am.Jur.2d Executions and Enforcement of Judgments § 6 (1994). . Civil Rule 69(d) provides in part: Execution After Five Years. Whenever a period of five years shall elapse without an execution being issued on a judgment, no execution shall issue except on order of the court in the following manner: (1) The judgment creditor shall file a motion supported by affidavit with the court where the judgment is entered for leave to issue an execution. The motion and affidavit shall state the names of the parties to the judgment, the date of its entry, the reasons for failure to obtain a writ for a period of five years and the amount claimed to be due thereon.... (Emphasis added.) . In Cedergreen v. Cedergreen, 811 P.2d 784 (Alaska 1991), we stated in dictum that AS 09.10.040 applies to motions to enforce a decree. Id. at 786-87 & n. 3. Because we did not consider in that case whether any statute of limitations was applicable to such an enforcement proceeding, we disapprove of the dictum stated therein. In Lantz v. Lantz, 845 P.2d 429 (Alaska 1993), we held that AS 09.10.040 limits the time available for a spouse seeking past-due alimony that arose in regular installments from a domestic decree to bring a motion to reduce arrearages to judgment. Id. at 431. We see no reason to treat the collection of past-due alimony payments, ordered by decree, differently than an execution proceeding to collect past-due child support. To the extent that Lantz is inconsistent with our holding today, it is overruled. . When Congress passed the Alaska Government - Act of 1884, the general statutes of Oregon were employed as the founding basis for Alaska law. Act of May 17, 1884, ch. 53, 23 Stat. 24 (1884); see generally Frederic E. Brown, The Sources of the Alaska and Oregon Codes, 2 UCLA-Alaska L.Rev. 15 (1973). Although our decision in the present case does not require resort to Oregon case law, we continue to adhere to the rule of statutory construction that a statute adopted from another state, having previously been construed by that state's highest court, is presumed to have been adopted with that construction placed upon it. City of Fairbanks v. Schaible, 375 P.2d 201, 207 (Alaska 1962), overruled on other grounds, Scheele v. City of Anchorage, 385 P.2d 582 (Alaska 1963).

10340484

MUNICIPALITY OF ANCHORAGE, Appellant, v. Jeffrey SANDERS, Appellee

Municipality of Anchorage v. Sanders

1995-09-15

No. A-5469

347

350

902 P.2d 347

902

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:43:34.517492+00:00

CAP

Before BRYNER, C.J., COATS and MANNHEIMER, JJ.

MUNICIPALITY OF ANCHORAGE, Appellant, v. Jeffrey SANDERS, Appellee.

MUNICIPALITY OF ANCHORAGE, Appellant, v. Jeffrey SANDERS, Appellee. No. A-5469. Court of Appeals of Alaska. Sept. 15, 1995. James L. Walker, Assistant Municipal Prosecutor, Richard L. McVeigh, Municipal Attorney, Anchorage, for appellant. Jason A. Steen, Gorton & Associates, Anchorage, for appellee. Before BRYNER, C.J., COATS and MANNHEIMER, JJ.

1570

9780

OPINION BRYNER, Chief Judge. The Municipality of Anchorage charged Jeffrey Sanders with malicious destruction of property in violation of Anchorage Municipal Code (AMC) § 08.05.400. District Court Judge Michael L. Wolverton dismissed the prosecution because J.P., who formerly lived with Sanders and was the owner of the property Sanders damaged, had civilly compromised with Sanders and agreed to drop the charges. The municipality appeals, contending that a civil compromise is impermissible when a crime is committed against a person who previously lived in a spousal relationship with the defendant. We reverse. On December 23, 1993, Jeffrey Sanders broke into the home he had once shared with J.P. J.P. was not present at the time of the break-in. Sanders damaged some of J.P.'s property, including a stereo and a vacuum cleaner, scattered the broken pieces around the home, along with knives and scissors, and then apparently passed out on the couch. When J.P. returned home, Sanders was still unconscious. J.P. saw the house in disarray; she took the display of knives and scissors to be threatening and contacted the police, who arrested Sanders for malicious destruction of property. Prior to trial, Sanders moved to dismiss the case under Alaska's civil compromise statute, AS 12.45.120, claiming that he had civilly compromised the case with J.P. and had paid her $800 to replace her property. The municipality opposed the motion, arguing that, because J.P. had previously lived in a spousal relationship with Sanders, civil compromise was barred by AS 12.45.120(5)(D). Alaska Statute 12.45.120 provides, in relevant part: If a defendant is held to answer on a charge of misdemeanor for which the person injured by the act constituting the crime has a remedy by a civil action, the crime may be compromised except when it was committed (5) against (A) a spouse or a former spouse of the defendant; [or] (D) a person who is not a spouse or former spouse of the defendant but who previously lived in a spousal relationship with the defendant. Judge Wolverton, however, granted Sanders' motion to dismiss, ruling that the bar against civil compromise set forth in AS 12.45.120(5)(D) does not refer to property crimes, but only to "crimes against a person" — that is, those crimes designated in Chapter 41 of Alaska's Revised Criminal Code (AS 11.41.100-11.41.530) as "Offenses Against the Person." The municipality contends on appeal that Judge Wolverton erred by ruling that AS 12.45.120(5)(D) precludes only "crimes against a person" from civil compromise. In the municipality's view, the section plainly applies to all crimes resulting in any form of injury to a person who previ ously lived in a spousal relationship with the defendant. We agree. The language of AS 12.45.120(5)(D) itself provides no basis for restricting the statutory bar against civil compromise to crimes formally classified in Chapter 41 as "offenses against the person." In defining when civil compromise will be barred, AS 12.45.120(5) (D) focuses on the identity of the crime victim rather than on the nature of the injury inflicted. The statute specifies that compromise will not be allowed when a "crime . was committed . against . a person . who previously lived in a spousal relationship with the defendant." By contrast, Chapter 41 groups together a series of offenses, not by the identity of the crime victim, but according to the nature of the injury that the included offenses cause: the offenses included in Chapter 41 all involve bodily injury or the threat of bodily injury, that is, injury to "the person" as distinguished from injury to "a person." There is no reason to suppose that a crime can be "committed . against . a person" for purposes of AS 12.45.120(5)(D) only when it involves bodily injury — an injury to "the person." Such a conclusion would essentially hold property crimes to be victimless offenses and, in so doing, would run counter to prevailing legal definitions. For example, AS 12.55.185(13)(A) broadly defines "victim" as "a person against whom an offense has been perpetrated." It is clear that the legislature did not intend this definition to be limited to "offenses against the person," because the term 'Victim" appears in statutes defining property crimes that are outside that class. See AS 11.46.210(b) (theft by failure to make required disposition of funds); AS 11.46.620(b) (misapplication of property). Alaska Statutes 12.55.185(8) uses the term "victim" in its definition of "peeuni-ary gain": "the amount of money or value of property returned to the victim of the offense" is not included in the amount of the offender's "pecuniary gain" from the offense. This court has commonly stated that crimes that are not "offenses against the person" can be committed against "victims." Sanders nevertheless argues that the legislative history of AS 12.45.120(5) demonstrates that the legislature intended it to be limited in scope to crimes such as physical and sexual assault. The legislature added paragraph (5) to the statute in 1988 in response to this court's decision in State v. Nelles, 713 P.2d 806, 810 (Alaska App.1986), which upheld the civil compromise and dismissal of a domestic violence assault case, noting that it was the province of the legislature, not this court, to enact a "domestic disputes" exception to the civil compromise statute. In 1987, Governor Steve Cowper sent a letter to the legislature discussing Nelles and urging that the legislature "prohibit the 'civil compromise' of criminal cases arising from domestic violence situations." 1987 House Journal 191-93. This letter emphasized the public interest in curbing "domestic violence" and "abuse." However, it appears that the legislature ultimately elected not to limit the prohibition on civil compromises to offenses such as assault. Although the original house bill did specifically provide that crimes committed "by assault against" the enumerated domestic victims could not be civilly compromised, H.B. 463 (1986), when the bill was reintroduced the following, year the "by assault" restriction had been omitted, and the bill was enacted into law with the current language. H.B. 122 (1987); ch. 4, § 1, SLA 1988. The house specifically rejected a proposed amendment to H.B. 122 that would have limited the exception to "a case involving a misdemeanor charge under AS 11.41, criminal trespass (AS 11.46.320-.330), harassment (AS 11.61.120), or a similar municipal ordinance." Notably, other statutes do contain limiting language similar to the language the house declined to include in the civil compromise statute. Because the legislature chose to omit such limiting language from the coverage of AS 12.45.120(5), we find no basis for construing the statutory language to include only crimes formally classified as "offenses against the person," and we conclude that the statute prohibits the civil compromise of all crimes committed against victims enumerated therein. We REVERSE the order of dismissal and REMAND for further proceedings in this case. . AMC § 08.05.400 provides: "It is unlawful for any person to maliciously injure or destroy any real or personal property not his own." . It is undisputed that Sanders and J.P., though not married, had lived together in a spousal relationship. . The title of AS 12.45.120 also uses the term "victim/' although the body of the statute itself uses instead the phrase "person injured by the act constituting the crime." . See, e.g., Roath v. State, 874 P.2d 312, 313-14 (Alaska App. 1994) (defendant's criminal impersonation, although classified as an "offense against property," embarrassed and humiliated "victims"), petition for hearing denied, 879 P.2d 1008 (Alaska 1994); Coleman v. State, 846 P.2d 141, 143 & n. 1 (Alaska App.1993) ("Theft is, in fact, a crime against the victim's right to possess the properly_ This is why theft can be committed against a person who does not own the property_"). . AS 12.55.185(3) and AS 25.35.200 define "domestic violence" as "a crime under AS 11.41" with an enumeration of victims similar to that appearing in AS 12.45.120(5). . See, e.g., AS 12.25.030(b)(2), which provides that a police officer may arrest a person without a warrant if there is reasonable cause to believe that the person committed a crime under AS 11.41, AS 11.46.330, or AS 11.61.120, or has violated an ordinance with elements substantially similar to the elements of a crime under AS 11.41, AS 11.46.330, or AS 11.61.120, when the victim is a spouse or former spouse of the person who committed the crime; a parent, grandparent, child, or grandchild of the person who committed the crime; a member of the social unit comprised of [sic] those living together in the same dwelling as the person who committed the crime; or another person who is not a spouse or former spouse of the person who committed the crime but who previously lived in a spousal relationship with the person who committed the crime or is in or has been in a dating, courtship, or engagement relationship with the person who committed the crime. Governor Cowper's letter to the legislature specifically cited AS 12.25.030(b). 1987 House Journal at 193. See also AS 12.55.155(c)(18)(A), which provides an aggravating factor under the presumptive sentencing scheme if the offense was one "specified in AS 11.41" with a truncated but similar set of domestic victims.

10343472

ALASKA PUBLIC UTILITIES COMMISSION and State of Alaska, Petitioners, v. MUNICIPALITY OF ANCHORAGE d/b/a Anchorage Telephone Utility, Respondent

Alaska Public Utilities Commission v. Municipality of Anchorage

1995-09-08

No. S-6452

783

790

902 P.2d 783

902

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:43:34.517492+00:00

CAP

Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON, and EASTAUGH, JJ.

ALASKA PUBLIC UTILITIES COMMISSION and State of Alaska, Petitioners, v. MUNICIPALITY OF ANCHORAGE d/b/a Anchorage Telephone Utility, Respondent.

ALASKA PUBLIC UTILITIES COMMISSION and State of Alaska, Petitioners, v. MUNICIPALITY OF ANCHORAGE d/b/a Anchorage Telephone Utility, Respondent. No. S-6452. Supreme Court of Alaska. Sept. 8, 1995. Virginia A. Rusch, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Petitioners. Heather H. Grahame and Ann M. Bruner, Bogle & Gates, Anchorage, for Respondent. Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON, and EASTAUGH, JJ.

3993

24623

OPINION COMPTON, Justice. I. INTRODUCTION Anchorage Telephone Utility (ATU) charged rates for services not approved by the Alaska Public Utilities Commission (APUC). APUC ordered a refund of approximately half of these revenues. On appeal the superior court, sitting as an intermediate court of appeals, reversed and remanded the case to APUC. In this petition for review, APUC argues that it has implied authority to order such a refund. ATU argues that no authority exists; alternatively, it argues that if such authority exists, a refund may only be ordered for that portion of the rates found unreasonable. We reverse. I. FACTS AND PROCEEDINGS During an internal review, the Municipality of Anchorage, d/b/a Anchorage Telephone Utility, discovered that it was offering several services for which rates had not been set by APUC. Total revenue from these untar-iffed services was approximately $1.2 million. ATU notified APUC, which commenced an investigation. APUC ordered a report prepared by its staff. ATU argued that all but one of the untar-iffed rates were reasonable. It offered to refund the unreasonable portion of the revenues from that one service, which amounted to approximately $68,000, as well as another $30,000 in services, in an effort to resolve the matter. APUC issued an order rejecting ATU's argument that only the unreasonable portion of the rates should be refunded. It based this on two policy concerns. First, it found that "where ATU had 25 separate untariffed services which were implemented and revised at various points in time, it would be a practical impossibility to go back and determine what rate would have been approved as reasonable if ATU had followed the law and filed the tariff for approval." Second, it noted the necessity of providing an incentive for utilities to comply with the law. In considering the amount tp be refunded, APUC noted several mitigating factors: ATU brought the tariff discrepancies to the Commission on its own initiative; the discrepancies appear to be the result of procedural errors that are unlikely to recur in the future due to the institution of improved procedures; most of the rates were at reasonable levels; the revenue and costs for the services were included in the determination of ATU's overall revenue requirement; and ATU's customers received service for the rates charged. APUC ordered approximately a fifty percent refund, finding that this balanced the need for deterrence with the mitigating factors. A refund of $553,831 was ordered; the total amount subject to possible refund was found to be approximately $1 million. ATU appealed to the superior court. Appellate Rule 602(a)(2). The superior court ruled for ATU, concluding that APUC had no authority to order a refund of revenues collected from untariffed rates. This court granted APUC's petition for review. Appellate Rule 402. II. DISCUSSION A. Standard of Review The question of whether APUC has authority to order a refund is a question of law not involving agency expertise; thus, this court applies the "substitution of judgment" standard of review. Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987). If the agency has the power to order a refund, the decision is discretionary and thus is reviewed under the reasonable basis standard. Lake & Peninsula Borough v. Local Boundary Comm'n, 885 P.2d 1059, 1062 (Alaska 1994). Because the superior court acted as an intermediate appellate court, no deference is given to its decision. Tesoro, 746 P.2d at 903. B. APUC Has Implied Authority to Order a Refund APUC argues that finding implied power to refund serves the purpose of the Alaska Public Utilities Act and that power to order a refund is necessarily incident to its express powers. ATU responds that since the legislature did not expressly grant refund power, and instead provided a comprehensive statutory scheme, no refund power should be implied. This specific point has not been addressed previously by this court. Although the Alaska Statutes contain several sections discussing rates and public utilities, none addresses the specific point at issue in this case. AS 42.05.371, .381(a), .391(c), .411(a), .431(a). Consideration of policy reasons and a review of case law from other jurisdictions persuades us that APUC does have implied power to order a refund. Foreign cases both find and reject implied refund authority. However, those finding implied power are based on situations similar to this one; those denying implied power arise from distinguishable situations. The case most analogous to the instant case is GTE North, Inc. v. Public Service Commission, 176 Wis.2d 559, 500 N.W.2d 284 (1993), where the state public service commission ordered a refund of compensation collected in violation of the filed tariffs. The court addressed section 196.37(2) of the Wisconsin statutes. GTE argued that the "in the future" phrase limited the commission to prospective remedies. Id. 500 N.W.2d at 287. The court examined the former version of the section. It contained a clause following "in the future," which stated that "and shall make such other order respecting such mea surement, regulation, act, practice or service as shall be just and reasonable." Id. 500 N.W.2d at 287. The court noted that the legislation removing this clause contained language indicating that no substantive change was intended. Therefore, the court held that the "future" clause was not a restriction on the commission's powers, and a refund order was "a just and reasonable order regarding a 'measurement, regulation, act, practice, or service.' " Id. 500 N.W.2d at 288. The court went on to analyze the case on policy grounds and reached the same conclusion. It first noted that it "must presume a legislative intent that advances the purposes of the statute." Id. It stated that if the commission has the power to order a refund, consumers can use "speedy and informal" commission proceedings to obtain monies to which they would be entitled. If such authority were lacking, the burdensome court system would have to be used, something often not worth the benefit to an individual consumer. The court finally noted that the commission was likely to enforce its decisions across the board, something the courts do not have the power to do. Id. The Oregon Court of Appeals also has held that implied authority does exist. In Pacific Northwest Bell Telephone Co. v. Katz, 116 Or.App. 302, 841 P.2d 652 (1992), the court upheld a commission order requiring a utility to refund a portion of collected rates in a situation where no express power existed. The court held: To hold that PUC does not have the power to order a refund of amounts over collected under temporary rates that failed to comply with an ordered revenue reduction would be inconsistent with its regulatory role and statutory duties. Such a holding would deprive PUC of much of its power to protect customers from abusive delay tactics or, as in this case, unexpectedly long delays in implementing an ordered revenue reduction. Id. 841 P.2d at 656-57. Specifically, the funds at issue were collected while the commission was considering how to reduce rates and were above the allowed rate of return. The court characterized the collected funds as "excess revenues collected under an interim rate schedule that was not in compliance with the authorized revenue level." Id. 841 P.2d at 657. But the court also noted that "PUC allowed PNB to . operate temporarily under an interim rate schedule that was . higher than the authorized revenue level." Id. 841 P.2d at 654. Although other jurisdictions have found that their local commissions did not have implied authority to order refunds, these cases are distinguishable. In Niagara Mohawk Power Corp. v. Public Service Commission, 54 A.D.2d 255, 388 N.Y.S.2d 157 (1976) (Niagara A), the New York court struck as retroactive ratemaking a refund ordered by a public service commission. At issue were tax refunds made by the government to the utility. The state commission ordered the refunds to be passed along to the consumers. The court reversed. It first held that such refunds were retroactive rate-making. It then held: [W]e may not approve [the refund] unless it is authorized by existing law. It is well settled that the Commission may exercise only such powers as are conferred upon it by the Legislature, or which are incidental to such power, or necessarily implied therefrom. We find no statutory power, either express or implied, permitting a refund under these circumstances. Id. 388 N.Y.S.2d at 158-59 (citations omitted). The court noted that the state legislature allowed refunds in two specific instances, neither of which fit the circumstances of the case. Id. 388 N.Y.S.2d at 159. The court decided that it was "reasonable and logical" to conclude that no general refund power was authorized. Id. The court stated, "Ratemaking is a prospective and not a retrospective process." Id. It finally noted that the proper approach was for the commission to consider the refunded taxes when the utility next requested a rate adjustment. 'Id. In Long Island Lighting Co. v. Public Service Commission, 80 A.D.2d 977, 438 N.Y.S.2d 606 (1981), the commission ordered refunds to a group of consumers who had been classified in the wrong rate group. The court held that the commission was without authority to order such a retroactive refund. It noted that the applicable statute provided for power in the commission to adjust discriminatory rates "thereafter to be in force." Id. 438 N.Y.S.2d at 608. The court also noted "the absence of any express or implied statutory power permitting a refund under the present circumstances." Id. These New York eases are not analogous to our own. Niagara A did not address illegally charged rates. Rather the question was the treatment of a tax refund. In Long Island Lighting, the rates were already in effect; the wrong rate was charged. Furthermore, the rate change was based on a commission interpretation of a statute made after the rates were charged and collected. 438 N.Y.S.2d at 607. The highest appellate court of New York has limited the holdings in these cases by allowing a refund in a different situation. Niagara Mohawk Power Corp. v. Public Serv. Comm'n, 69 N.Y.2d 365, 514 N.Y.S.2d 694, 507 N.E.2d 287 (1987) CNiagara B). There the commission ordered a refund for imprudently incurred fuel costs passed along to ratepayers through an automatic rate adjustment clause. The court upheld the refund, noting the validity and importance of the automatic rate adjustment clauses. The parties did not dispute the lack of direct statutory authority, id. 514 N.Y.S.2d at 696, 507 N.E.2d at 291, although the legislature amended the law to grant the commission that power shortly after the case arose. Id. 514 N.Y.S.2d at 698 n.*, 507 N.E.2d at 289 n.*. Noting several other statutorily-allowed refunds, the court stated that, "Nothing in these provisions suggests that the Legislature meant to prohibit the Commission from ordering the refund of automatically recovered fuel expenses when such expenses had not been subjected to a Commission review for reasonableness in a regular rate proceeding." Id. 514 N.Y.S.2d at 700, 507 N.E.2d at 293. The Minnesota Supreme Court held that Minnesota's public utility commission did not have implied authority to order a public utility to refund charges collected under rates that the commission had previously declared discriminatory. Peoples Natural Gas Co. v. Minnesota Pub. Utilities Comm'n, 369 N.W.2d 530 (Minn.1985) (PNG). That case involved the rates for provision of natural gas to a few large consumers. Id. at 531-32. The court first decided that the refund was not retroactive ratemaking, but rather restitution of rates charged in violation of a rate-setting order. Id. at 533. Thus, it analyzed the question in terms of whether the commission had implied authority to enforce its order by a refund. Id. at 534-35. The court held that it did not, as utility regulation was "an intricate, ongoing process," where a reallocation "may set in motion an ever-widening set of consequences and adjustments." Id. at 535. It therefore held that granting such enforcement power would introduce such an important new factor into the equation that such power could not be implied. Id. at 535. This case is only partially on point. PNG involved a small group of affected parties. The court indicated that it saw the issue not as retroactive ratemaking, but rather direct enforcement, where other adequate tools were available, such as penalties and legal action by the attorney general. Id. at 535. In addition to these differences, we are not persuaded by the analysis of the Minnesota court. By statute, the powers of APUC are to be liberally construed. Furthermore, [a] public service commission is an administrative agency that has whatever powers are expressly granted to it by the legislature or conferred upon it by implication as necessarily incident to the exercise of powers expressly granted. Glacier State Tel. Co. v. Alaska Public Utilities Comm'n, 724 P.2d 1187, 1190 (Alaska 1986) (citations omitted). We held previously that APUC may have implied powers. Far North Sanitation, Inc. v. Alaska Pub. Utilities Comm'n, 825 P.2d 867 (Alaska 1992). In Far North, APUC issued an order declaring a rate "interim" and subject to refund. The utility argued that APUC had no power to declare a rate interim and thus subject to refund, except when the utility had requested a rate increase. Id. at 871. APUC did not dispute the lack of direct authorization. We held that "APUC has implied authority to set interim rates," but noted that APUC must first conduct an investigation and hold a hearing before exercising its implied authority. Id. at 873. ATU argues that since the legislature expressly provided refund authority in one situation, APUC has no other refund authority. ATU also argues that the existence of the penalty provision and legislative history discussing its use as a compliance tool indicate that no refund authority should be implied. The civil penalties are without doubt an enforcement tool. The question not addressed by ATU is whether the existence of one enforcement tool precludes implying others, especially where the tools are designed to combat problems with different effects. For instance, a penalty does not make whole consumers who were charged excessive rates. The utility may disgorge excessive profits with the proper penalty, but the penalty is not given to the consumers who initially paid the excessive rates. A holding that implied powers do not exist would undercut APUC's authority. This would allow a utility to charge any sort of rate for an untariffed service and refund nothing if caught. No incentive would be provided to comply with the filing requirements. As for post-event rate determination, if a "reasonable rate" can be forecast for the future, it should be easier to calculate the proper past rate since all data is available and speculation is minimized. In Far North Sanitation, Inc. v. Alaska Public Utilities Comm'n, 825 P.2d 867 (Alaska 1992), we noted several reasons for the general rule against retroactive ratemaking. These included utility planning, investor confidence, utility credit rating, and the integrity of service. Id. at 872. None of these concerns would be impacted by a refund order in the instant situation. The court in GTE North, 500 N.W.2d at 288, noted that refund powers allow consumers "speedy and informal" commission proceedings to obtain monies they would be entitled to, versus resort to court proceedings. Enforcement by the commission is also likely to be across the board, which would require a class action in court. Penalty pro visions do not protect consumers from overcharges. We find these policy concerns persuasive and hold that power to order a refund in the instant case may be fairly implied from article 5 of chapter 42 of the Alaska Statutes. AS 42.05.861-.441. C. APUC May Not Order a Refund of the Reasonable Portion of the Untar-iffed Rates ATU argues that a refund may not be ordered in this case, even if APUC has the power to do so, because the untariffed rates in question were reasonable. It begins by noting the purpose of APUC is to establish "just, fair, and reasonable" rates. See AS 42.05.141(a)(3). ATU argues that APUC found the rates reasonable; APUC disputes this fact,, noting that ATU relies on a staff report which stated that the rates were probably reasonable, but that the issue was irrelevant. ATU argues that since the rates were reasonable the ratepayers were not harmed, and any sanction should take the form of a civil penalty under AS 42.05.571. APUC counters that the civil penalties are not intended to be exclusive, noting the language at the beginning of the penalty statute: "In addition to all other penalties and remedies provided by law...." AS 42.05.571(a). APUC also notes that the penalty provisions are primarily for enforcement of commission orders, where a refund applies to a very different situation. Finally, it argues that untariffed rates are unreasonable as a matter of law. ATU cites Alaska Public Utilities Commission v. Greater Anchorage Area Borough, 534 P.2d 549, 558 n. 26 (Alaska 1975), for the proposition that "[rjates which do not afford a reasonable return on the value of property • used in the public service have been held to be confiscatory." ATU argues that past decisions of APUC only required a refund of the unreasonable portion of the rate charged by the utility at issue. Untariffed rates are unquestionably illegal. See AS 42.05.371 & .411(a). Neither party provides any helpful discussion of whether APUC is limited to setting a reasonable rate after a utility violation such as this. On policy grounds, a commission does not have authority to order refunds beyond what is necessary to reduce rates to reasonable levels. Statutory authority may not be implied beyond this point, as APUC's authority is limited to setting "just and reasonable" rates. If APUC wishes to penalize ATU beyond ordering the refund of unreasonable charges, AS 42.05.571 provides for civil sanctions. With such penalty authority clearly given by the legislature, APUC should not be allowed to order excessive refunds; this would result in windfalls to consumers. While APUC argues that it cannot determine what a just and reasonable rate would have been, this argument is not persuasive. If reasonable rates can be forecast into the future, they can be determined much more easily based on past data. IV. CONCLUSION APUC does have implied power to order a refund of the unreasonable portion of the untariffed rates. Therefore, the judgment of the superior court is REVERSED and the case is remanded to APUC for its determination of reasonableness and such other proceedings as may be consistent with this opinion. . The terms and conditions under which a public utility offers its services and facilities to the public shall be governed strictly by the provisions of its currently effective tariffs. AS 42.05.371. . All rates demanded or received by a public utility . for a service furnished or to be furnished shall be just and reasonable.... AS 42.05.381(a). . A public utility may not directly or indirectly refund, rebate or remit in .any manner, or by any device, any portion of the rates and charges or charge, demand or receive a greater or lesser compensation for its services than is specified in its effective tariff. AS 42.05.391(c). . A public utility may not establish or place in effect any new or revised rates, charges, rules, regulations, conditions of service or practices except after 45 days notice to the commission and 30 days notice to the public. AS 42.05.411(a). . When the commission, after an investigation and hearing, finds that a rate demanded, observed, charged or collected by a public utility for a service subject to the jurisdiction of the commission . is unjust, unreasonable, unduly discriminatory or preferential, the commission shall determine a just and reasonable rate, classification, rule, regulation, practice, or contract to be observed or allowed and shall establish it by order. AS 42.05.431(a). . Wisconsin Statute § 196.37(2) states: If the commission finds that any measurement, regulation, practice, act or service is unjust, unreasonable, insufficient, preferential, unjustly discriminatory or otherwise unreasonable or unlawful, . the commission shall determine and make any just and reasonable order relating to a measurement, regulation, practice, act or service to be furnished, imposed, observed and followed in the future. GTE North, 176 Wis.2d 559, 500 N.W.2d at 286-87 (quoting Wis.Stat. § 196.37(2)). . Statutory authority was later granted to the PSC to require utilities to pass along tax refunds. N.Y.Pub.Serv.Law § 113(2) (1977). . Such a provision automatically varies the rate charged based on changes in operating costs, such as fuel. . Alaska Statute 42.05.141(a) provides: (a) The Alaska Public Utilities Commission may (1) regulate every public utility engaged or proposing to engage in such a business inside the state, except to the extent exempted by AS 42.05.711, and the powers of the commission shall be liberally construed to accomplish its stated purposes.... (Emphasis added). . The utility cited McDaniel v. Cory, 631 P.2d 82, 88 (Alaska 1981), for the language that agencies are "creatures of statute and therefore must find within the statute the authority for the exercise of any power [they] claim." Far North Sanitation, 825 P.2d at 871. . Presumably ATU refers to AS 42.05.421(c), which provides for refunds of rates collected under interim rate increases in effect while the Commission studies the increase. That portion of the rates later found to he unreasonable or unlawful is subject to a refund order. . AS 42.05.571 — .621 allow APUC to assess civil penalties for most violations of statutes or regulations. . APUC argues that the legal maxim of expressio unius est exclusio alterius (the expression of one thing implies the exclusion of others) does not apply to this case. ATU mentions the issue briefly- APUC is correct. In Sonneman v. Hickel, 836 P.2d 936, 939 (Alaska 1992), this court noted, "While this maxim is often a useful and logical guide to the meaning of an enactment, it does not always apply." We noted Chevron U.S.A., Inc. v. LeResche, 663 P.2d 923, 930-31 (Alaska 1983), where application of the principle was declined as the court found that the resulting limitation would he contrary to the purpose of the statute. Sonneman also declined application on the same grounds. We hold that application of the maxim would also be contrary to the regulatory system here. . Support for our holding is also found in AS 42.05.421(c), supra note 11. Since APUC may order a refund in an interim rate setting, it may also do so when the utility has improperly avoided the interim rate route. . Although APUC in its order did state that "most of the rates were at reasonable levels," APUC prevails on this point for three reasons. First, this statement does not clarify which of the rates it might have thought reasonable and which not. Second, this is a general statement used as a mitigating factor, not a specific finding of reasonableness. Third, the procedures for determining reasonable rates had not been followed, as that was not the nature of the case. See. AS 42.05.411, .421. .In addition to all other penalties and remedies provided by law, a public utility and every person, and their lessees or receivers appointed by a court in any way subject to the provisions of this chapter, together with their officers, managers, agents or employees that either violate or procure, aid or abet the violation of any provision of this chapter, or of any order, regulation or written requirement of the commission are subject to a maximum penalty of $100 for each violation. Each act of omission as well as each act of commission shall be considered a violation subject to the penalty. AS 42.05.571(a).

9019752

James F. MORGAN, Sr., individually and as Personal Representative for the Estate of Martina Alurac, Deceased 10/01/99, Appellant, v. FORTIS BENEFITS INSURANCE CO., Appellee

Morgan v. Fortis Benefits Insurance Co.

2005-02-11

No. S-11000

267

271

107 P.3d 267

107

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:34:37.704673+00:00

CAP

Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

James F. MORGAN, Sr., individually and as Personal Representative for the Estate of Martina Alurac, Deceased 10/01/99, Appellant, v. FORTIS BENEFITS INSURANCE CO., Appellee.

James F. MORGAN, Sr., individually and as Personal Representative for the Estate of Martina Alurac, Deceased 10/01/99, Appellant, v. FORTIS BENEFITS INSURANCE CO., Appellee. No. S-11000. Supreme Court of Alaska. Feb. 11, 2005. Ward Merdes, Merdes & Merdes, P.C., Fairbanks, for Appellant. Robert P. Blasco, Robertson, Monagle & Eastaugh, Juneau, and Joshua Bachraeh, Rawle & Henderson, Philadelphia, for Appel-lee. Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

2100

12940

OPINION MATTHEWS, Justice. I. INTRODUCTION We are presented with the issue of whether summary judgment was properly granted to Fortis Benefits Insurance Company (For-tis) on the application of certain exclusions found in an accidental death and dismemberment insurance policy covering Martina Alu-rac (Alurae). James F. Morgan, Sr. (Morgan), Alurac's beneficiary, appeals, arguing that an issue of fact remains as to whether Alurac's death was caused by her intoxication. Because the only reasonable conclusion to be drawn from the evidence in this case is that Alurac's accident was at least indirectly caused by her intoxication, we affirm the judgment of the superior court. II. FACTS AND PROCEEDINGS In the early morning of October 1, 1999, Alurae was killed when her Subaru wagon ran off the road and struck a telephone pole near the intersection of the Old Richardson Highway and Ruby Street in North Pole. Officer Jon Miller discovered Alurae dead inside her car at 2:28 A.M. According to Miller's police report, "[tjhere were several tire marks on the Old Richardson Highway leading to the east side of Ruby St. They were arranged in a pattern that indicated that the vehicle had been going sideways prior to Ruby St. The roads were dry and there was no snow or ice on them." A pair of clogs was found under the control pedals and Alurae was found with her head and neck pressed against the passenger rear corner of the vehicle with no shoes on. According to Morgan and Guyton Harrison, Alurae had been drinking at a bar called the Refinery Lounge on the evening before the accident. The medical examiner found that Alu-rae had a blood alcohol content percentage of 0.247 at the time of her death. On October 1, 2001, Morgan filed a complaint against the Refinery Lounge and its owners, the bartender, and various insurance companies including Fortis. In his "common facts" section of the complaint, Morgan alleged that Alurae "left the Refinery with a blood alcohol content well above the legal limit in Alaska" and "got into her vehicle and drove less than a mile from the Refinery when the fatal crash occurred." Against Fortis, Morgan alleged that while an accidental death and dismemberment benefit in the amount of $25,000 had been paid, Fortis had failed to pay the additional $25,000 owed under the automobile accident benefit provision. Morgan claimed that Fortis's denial of benefits was "a breach of contract and an unfair/deeeptive trade and claim practice, made negligently and/or in bad faith, entitling plaintiffs to compensatory and punitive damages." Fortis moved for summary judgment based on the intoxication exclusion, the violation of traffic laws exclusion, and a claim that the loss was not accidental. Morgan filed his opposition to Fortis's motion for summary judgment and oral argument was held. Judge Wood entered an order granting summary judgment to Fortis. Judge Wood denied Morgan's motion for limited reconsideration finding no material issue of disputed fact as to the application of the intoxication exclusion and the violation of traffic laws exclusion. The order stated in part: Summary judgment is appropriate in this case because there is no genuine issue of material fact that Martina Alurac was (1) violating the law by driving while intoxicated, and (2) that her intoxicated driving was "directly or indirectly" the cause of her death. On the facts presented to the court, a reasonable person would regard Alurac's intoxication as a cause of the accident that led to her death and attach responsibility to it. Robles v. Shoreside Petroleum, Inc., 29 P.3d 838, 841 (Alaska 2001). The "efficient" proximate cause rule does not apply because the language of the policy exclusions is unambiguous. C.P. v. Allstate Insurance Co., 996 P.2d 1216, 1228 (Alaska 2000); State Farm v. Bongen, 925 P.2d 1042 (Alaska 1996). III. STANDARD OF REVIEW This court reviews a superior court's grant of summary judgment de novo, and will affirm only "if there are no genuine issues of material fact and if the moving party is entitled to judgment as a matter of law." In reviewing the record we draw all reasonable inferences in favor of the nonmov-ing party. IV. DISCUSSION In analyzing whether summary judgment was properly granted, it is helpful to first lay out the general framework concerning what is required of both the movant and non-movant. Initially, the moving party must show that there is no genuine issue of material fact remaining for trial and that it is entitled to judgment as a matter of law. This showing must be based on admissible evidence. Once this has been done, the burden shifts to the non-movant to produce specific facts showing that [the non-mov-ant] could produce admissible evidence reasonably tending to dispute or contradict the [movant]'s evidence, and thus demonstrate that a material issue of fact existed. In attempting to satisfy their respective burdens, the parties may utilize pleadings, affidavits, and any other materials otherwise admissible in evidence.[ ] Unsworn assertions of fact in a party's own pleadings and memoranda are not admissible evidence and cannot be relied upon to satisfy these burdens. Fortis Is Entitled to Summary Judgment Based on the Intoxication Exclusion. The superior court granted summary judgment to Fortis because there [was] no genuine issue of material fact that Martina Alurac was (1) violating the law by driving while intoxicated, and (2) that her intoxicated driving was 'directly or indirectly' the cause of her death. On the facts presented to the court, a reasonable person would regard Alurac's intoxication as a cause of the accident that lead to her death. This refers to two exclusions found in the Fortis insurance policy. Because we find that summary judgment was proper under the intoxication exclusion, we do not need to address the application of the other exclusions advocated by Fortis. The "Accidental Death and Dismemberment Insurance for You" section of the policy contains an exclusion which reads: We will not pay benefits if the loss results directly or indirectly from: your intoxication; this includes but is not limited to operating a motor vehicle while you are intoxicated. "Intoxication" and "intoxicated" mean your blood alcohol level at death or dismemberment exceeds the legal limit for operating a motor vehicle in the jurisdiction in which the loss occurs. The Automobile Accident Benefit section, which provides for a benefit of an additional $25,000, contains a provision which reads: The Exclusions listed under the Accidental Death and Dismemberment Insurance Coverage for You will also apply to the Automobile Accident Benefit. We construe exclusions of coverage narrowly. "[W]here a clause in an insurance policy is ambiguous in the sense that it is reasonably susceptible to more than one interpretation, the court accepts that interpretation which most favors the insured. Grants of coverage should be construed broadly 'while exclusions are interpreted narrowly. .' " Morgan argues that it was improper for the superior court to award summary judgment under the intoxication exclusion because Fortis failed to prove that Alurae's death was causally connected to her intoxication as required by the text of the exclusion. Morgan alleges that Fortis "must provide that Martina's intoxication was 'the' cause — not just 'a' cause." This is in direct contradiction to the text of the exclusion, which states that loss must result "directly or indirectly" from the intoxication. In State v. Arbuckle, this court applied an exclusion preventing coverage for a loss resulting "directly or indirectly from illness or disease." The insured died after unloading a truck at work exacerbated his heart condition, causing a fatal heart attack. We held that the exclusion applied even though the unloading of the truck also contributed to the insured's death. It was enough that his disease was at the very least an indirect cause. Because the intoxication exclusion also uses the "directly or indirectly" language, Fortis is not required to show that intoxication was the only cause of Alurac's death, only that it was a contributing cause. In support of its motion for summary judgment based on the intoxication exclusion, Fortis relies on the medical examiner's finding that Alurac's blood alcohol level at death was 0.247% and on Morgan's assertions in his complaint that Alurae left the bar with her blood alcohol above the legal limit and then drove away in her car. The police report states that "[t]he roads were dry and there was no snow or ice on them." The diagram of the accident shows that the road on which Alurae was driving was straight. Considering the fact that the only witness to this accident is deceased, Fortis has presented sufficient circumstantial evidence to show that Alurac's death was directly or indirectly related to her intoxication. This shifts the burden to Morgan to present evidence raising an inference that Alurac's intoxication was not a direct or indirect cause of the accident. Morgan seems mainly to rely on the argument that Fortis has not produced enough evidence to sustain its burden to prove a causal link between the intoxication and the accident by a preponderance of the evidence. Morgan argues that the accident may have been caused by Alurac's taking Tylenol 3 with codeine. In support of this, Morgan presented to the superior court a copy of a prescription written for Alurac on the day before her death for Tylenol 3, which contains codeine. Tylenol with codeine is known to impair a person's ability to drive a car. Morgan argues that the accident could have been caused by the codeine in Alurac's system instead of the alcohol. Fortis replies that the medical examiner's drug screen was negative. Also, Fortis points out that taking Tylenol with codeine and drinking alcohol produces an additional depression of the central nervous system so that the alcohol in her system would still be an indirect cause of the accident. Finally, Fortis argues that taking the drug with alcohol is not taking it as prescribed by a doctor, which would fall under the exclusion for losses directly or indirectly resulting from "the use of any drug, unless you use it as prescribed by a doctor." Even assuming that Alurac's doctor did not tell her not to drink while taking the Tylenol with codeine and that she did in fact take the codeine, it would still be unreasonable to conclude that the extremely high level of alcohol in Alurac's system did not at least indirectly cause the accident. The codeine would only make what was already an impaired state even worse. With respect to other possible causes alternative to the intoxication theory, Morgan suggests that it might have been a moose. It might have been slippery roads. It might have been a nefarious "black sedan" — and indeed, it might even have been intoxication. In any case, this question is not for the Trial Court, but for a jury to decide after hearing all the facts. The problem is that Morgan does not provide us with any of the facts that he claims the jury must hear to decide this causation issue. Mere assertions of fact and unsubstantiated suppositions are not enough to overcome a motion for summary judgment. Morgan is entitled to all reasonable inferences at the summary judgment stage, but without any admissible evidence suggesting an alternative cause for the accident or explaining how a blood alcohol level of 0.247% did not at least indirectly cause Alurac's death, it is not reasonable to infer that the intoxication exclusion does not apply. Consequently, summary judgment to Fortis was proper. y. CONCLUSION The superior court's award of summary judgment is AFFIRMED. . Holland v. Union Oil Co. of Cal., Inc., 993 P.2d 1026, 1029 (Alaska 1999). . Id. . Brock v. Rogers & Babler, Inc., 536 P.2d 778, 782 (Alaska 1975). . id. . Miller v. City of Fairbanks, 509 P.2d 826, 829 (Alaska 1973) (footnotes omitted). . Brock, 536 P.2d at 783. . D.D. v. Ins. Co. of N. Am., 905 P.2d 1365, 1368 (Alaska 1995). . Bering Strait Sch. Dist. v. R.L.J. Ins. Co., 873 P.2d 1292, 1295 (Alaska 1994) (citation omitted) (quoting Hahn v. Alaska Title Guar. Co., 557 P.2d 143, 145 (Alaska 1976)). . 941 P.2d 181, 184 (Alaska 1997). . Id. at 184-85. . Id. at 185. . French v. Jadon, Inc., 911 P.2d 20, 26 (Alaska 1996) (citing State, Dep't of Highways v. Green, 586 P.2d 595, 607 n. 32 (Alaska 1978)).

10345587

Frank McQUEARY, Appellant, v. Linda Leigh McQUEARY, Appellee

McQueary v. McQueary

1995-09-29

No. S-6216

1326

1327

902 P.2d 1326

902

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:43:34.517492+00:00

CAP

Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

Frank McQUEARY, Appellant, v. Linda Leigh McQUEARY, Appellee.

Frank McQUEARY, Appellant, v. Linda Leigh McQUEARY, Appellee. No. S-6216. Supreme Court of Alaska. Sept. 29, 1995. Sharon L. Gleason, Law Office of Sharon L. Gleason, Anchorage, for Appellant. Susan D. Mack, James T. Stanley Corporation, P.C., Anchorage, for Appellee. Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

949

5653

OPINION MATTHEWS, Justice. Frank and Linda MeQueary were divorced in 1988. The sole issue arising out of the superior court's division of their property is the valuation of the "Diamond H" ranch, a horse stabling and riding business which the couple co-owned. The ranch was encumbered by a $553,249.44 interest-free debt, payable over twenty-five years in monthly installments of $1,776.00. The superior court found that the market value of the ranch, not including the debt owed on it, was $470,323. This finding is not disputed. The superior court decided not to reduce the zero-interest debt owed on the ranch to net present value. The court simply subtracted the nominal value of the debt from the $470,323 market value figure and concluded that the ranch had a negative net equity of $115,923.42. The superior court found that Linda and Frank are both able-bodied and capable of supporting themselves. The court stated that Frank is capable of earning an annual salary of approximately $46,000 per year. The court found that Linda's sole means of support is the net income from the ranch. The court stated that the income Linda can expect to earn from the ranch is greater than Frank's potential income, and attempted to compensate for this in its division of the couple's property and debt. The court awarded Linda the ranch and $58,478 worth of other items of property, and ruled that Linda would assume the $553,-249.44 zero-interest loan on the ranch as well as another loan of $24,028.76. The court awarded Frank a $2,000 book collection and required him to pay off a loan of $8,968.22. The court split a collection of art and ivory evenly and the parties were allowed to keep their personal vehicles. Because the court did not reduce the interest-free debt on the ranch to present value, the court considered the net value of the assets and debts awarded to Linda to be negative. The superior court's decision not to reduce the zero-interest debt to present value was clearly erroneous. In our previous decisions, we have ruled that proper valuation of marital assets requires the reduction of streams of future payments to present value. See, e.g., Wainwright v. Wainwright, 888 P.2d 762, 765-66 (Alaska 1995) (trial court erred by failing to properly calculate present value of future pension benefits). When an asset or investment is valued, both the future income from the asset and the future debt payments on the asset must be reduced to present value. Under the valuation method used by the superior court in this case, the division of property would have been the same whether the interest rate on the $553,249.44 loan was zero percent, five percent, or fifteen percent. Yet the higher the interest rate, the worse off Linda would have been by assuming the debt. By failing to take the interest rate into account, the superior court improperly valued the ranch. The superior court's decision not to reduce the zero-interest debt to present value and its finding that the net value of the ranch was negative are REVERSED, and this case is REMANDED for further proceedings. On remand, the superior court should ascertain the net present value of the zero-interest loan and subtract that number from the $470,323 market value figure to arrive at the net value of the ranch. The superior court should use its sound discretion to pick between the various discount rates proposed by the experts of the parties. Cf. Matson v. Lewis, 755 P.2d 1126, 1129 (Alaska 1988). . Examining a hypothetical will make it easier to understand why the superior court's choice not to reduce the debt to present value was incorrect. Consider two physically identical houses, X and Y, which would each be worth $100,000 if no debt was owed on them. House X is encumbered by a $50,000 mortgage with an interest rate of one percent; house Y is encumbered by a $50,000 mortgage with an interest rate of fifteen percent. Clearly, a buyer would pay much more to purchase house X and assume the mortgage on it than to purchase house Y and assume its mortgage. It would be unjust to treat house X and house Y and the mortgages on them exactly the same way in a division of marital property. . In addition, the superior court's finding that the ranch had negative net value contradicts its finding that the ranch produces positive net income. A common way to value investments and assets is by analyzing the income they are expected to produce. If an investment is expected to generate positive net future lifetime income, it must have positive net present value. .Linda argues in her brief that if this case is remanded to the superior court, we should instruct the court to have Frank "reimburse the Ranch for his share of partnership contributions." Since Linda is the appellee, and she did not file a cross-appeal, we will not consider her reimbursement argument. See, e.g., Jackson v. Nangle, 677 P.2d 242, 247 n. 3 (Alaska 1984). Linda also argues that the superior court's division of property should be upheld for several equitable reasons. However, the sole issue before us in this case is the valuation of the ranch. We may not attempt to compensate for the superior court's valuation error by reweighing the equities of the property division. Linda may make her equitable arguments to the superior court on remand.

10339852

Karen D. SANDERS, Appellant, v. Thomas A. SANDERS, Appellee

Sanders v. Sanders

1995-09-08

No. S-6586

310

319

902 P.2d 310

902

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:43:34.517492+00:00

CAP

Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

Karen D. SANDERS, Appellant, v. Thomas A. SANDERS, Appellee.

Karen D. SANDERS, Appellant, v. Thomas A. SANDERS, Appellee. No. S-6586. Supreme Court of Alaska. Sept. 8, 1995. Dennis P. James and Keith A. Christen-son, Anchorage, for appellant. Jennifer L. Holland and Max F. Gruen-berg, Jr., Gruenberg and Clover, Anchorage, for appellee. Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

4467

27479

OPINION MOORE, Chief Justice. I. INTRODUCTION This dispute arises out of the divorce of Karen and Thomas Sanders. Karen appeals several aspects of the superior court's division of marital property, its order that she make payments to Thomas for the support of the couple's adult son, and its order that she pay $8500 of Thomas' attorney's fees. We affirm in part and reverse in part. II. FACTS AND PROCEEDINGS Karen and Thomas Sanders were married in 1965. They have two adult children, Kenneth and Michelle, who were over the age of eighteen when their parents permanently separated on October 1, 1992. In January of 1993, Thomas filed a complaint for divorce. After a three day trial, the superior court evenly divided the marital property. The most contentious property division issue involved the classification of a Bristol Bay limited entry fishing permit worth $150,000, which Thomas acquired during marriage. According to both Thomas and Michelle, Karen and Thomas decided that the permit should be given to their children. In January 1992, Thomas signed a notice of intent to transfer the permit to Michelle. The permit did not officially change hands until early November, however, several weeks after the Sanders' separation. Notwithstanding Karen's testimony that she thought the transfer was only temporary and not an outright gift, the trial court found that Karen and Thomas had given Michelle the permit to hold in trust for herself and Kenneth. The court therefore excluded the permit from the marital property. The court also ruled that Karen had a duty to contribute to Kenneth's support during the eight month period immediately following the parties' October 1992 separation, while Kenneth was pursuing a high school degree. Based on the formula set forth in Civil Rule 90.3, the court determined that Karen owed Thomas $5040 in retrospective support. Finding that Kenneth was unable to support himself due to his emotional problems, the court further ordered Karen to pay Thomas $500 per month toward Kenneth's maintenance for as long as Kenneth lived with his father and was unable to support himself. The court specified, however, that Karen's prospective support obligation was subject to quarterly review. Finally, the court ordered Karen to pay $8500 of Thomas' attorney's fees in order to equalize the parties' legal expenses. This appeal followed. III. DISCUSSION A The Lower Court's Support Order Karen argues that she is not liable for Kenneth's support, that the amount of support established by the court was improper, and that the court failed to establish identifiable standards for continuing review of the support payments. We review child support awards under an abuse of discretion standard. Murphy v. Murphy, 812 P.2d 960, 962-63 (Alaska 1991). Whether the trial court applied the correct legal standards .in making its determination is a question we review de novo. Lantz v. Lantz, 845 P.2d 429, 431 n. 1 (Alaska 1993). "The duty of support generally exists only until the children 'are emancipated or reach the age of majority,' which is by statute eighteen years." Streb v. Streb, 774 P.2d 798, 800 (Alaska 1989) (citations omitted); AS 25.20.020. Two exceptions to that general rule apply here. First, AS 25.24.140(a)(3) provides for the support, under special circumstances, of children who have reached their eighteenth birthday. In a divorce action a spouse may . be awarded expenses, including . (3) reasonable care for minor children in the care of the spouse and reasonable support for unmarried 18-year-old children of the marriage who are actively pursuing a high-school diploma or an equivalent level of technical or vocational training and living as dependents with the spouse or designee of the spouse, if there is a legal obligation of the other spouse to provide support. (Emphasis added.) At trial, Karen's attorneys stipulated that this provision applied to Kenneth between October 1992 and May 1993, when he was pursuing a high school diploma. This appears to be the basis for the court's order that Karen pay Thomas $5040 in retrospective child support. Second, we have held that the duty of support continues beyond the age of majority where "an adult child is incapable of supporting himself or herself by reason of a physical or mental disability." Streb, 774 P.2d at 800. While the court's prospective child support order does not cite Streb, that case was argued by the parties and thus appears to be the basis for the court's $500 per month support order. 1. The court did not err in awarding $50Jf0 in retrospective support for the period when Kenneth was pursuing a high school degree Although Karen concedes her obligation to contribute to Kenneth's support between October 1992 and May 1993, she argues that the trial court erred in computing that liability at $5040. The court calculated the retrospective support award using the formula set forth in Civil Rule 90.3, and Karen argues that the Rule does not apply to the calculation of support for an adult dependent. Karen points to Streb's statement that "Civil Rule 90.3 . does not govern an award for a handicapped adult," 774 P.2d at 801, and also notes that the unofficial commentary to Rule 90.3 states that the Rule "does not apply to set any support which may be required for adult children." Civil Rule 90.3 Commentary I.C. She urges us to calculate retrospective support using the Streb standard, which says an award should be a "fair percentage of funds actually spent on reasonable child care expenses." 774 P.2d at 801. We agree with the trial court that Rule 90.3 should apply to a determination of support mandated by AS 25.24.140(a)(3). Streb's rejection of a Rule 90.3 calculation has no relevance when support is mandated by AS 25.24.140(a)(3). That statute simply acts to postpone the age of majority, for child support purposes, of dependent children living at home and pursuing a high school or similar degree. Support payments for those children will have been calculated under Rule 90.3 until they reach eighteen years of age, and it makes sense to extend those payments under AS 25.24.140(a)(3), rather than to' employ an entirely new standard of calculation for the relatively short period in which they will be subject to the statute. 2. The court did not err in imposing on Karen a prospective support obligation Streb imposes a support obligation where "evidence [shows] that an adult child is incapable of supporting himself or herself by reason of a physical or mental disability." Streb, 774 P.2d at 800. Based mainly on the testimony of Dr. Patrick, a psychiatrist, the superior court found that Kenny needs parental support, even though he is an adult, until he accomplishes what can be accomplished at [the Division of Vocational Rehabilitation] and is able to be employed.... The support will continue so long as Kenny lives with Tom, and it will continue only so long as he is unable to fully support himself due to the emotional problems described by Dr. Patrick. Karen disputes the trial court's conclusion that Streb imposes on her a duty to support Kenneth. She directs our attention to the evidence supporting her contention that Kenneth is capable of supporting himself and complains that the court's determination of incapacity occurred without hearing testimony from Kenneth or obtaining an independent evaluation. Karen notes that AS 13.26.005 (defining "incapacitated person" for purposes of establishing guardianship)' mandates a more rigorous procedure before a determination of incapacity is made, and im plies that this procedure should have been used here. In response, Thomas points to his own testimony and the testimony of Dr. Patrick. This evidence indicated that Kenneth had a history of hospitalizations and suicide attempts, had held a series of jobs for only short periods before being fired or leaving, and suffered from "bipolar illness, mixed type, with a secondary diagnosis of learning disability." Thomas also notes that the trial court found that Ms. Sanders says that he [Kenneth] can work, but has offered no evidence of it. In fact, she's surprisingly uninformed about his present situation.... I think his difficulties are something that she has translated into anger at him, rather than accepting them for what they are. The superior court's conclusions with regard to Kenneth's abilities and his capacity for self-support amount to factual findings, and as such may be reversed only if clearly erroneous. Alaska Civil Rule 52(a). We will not reverse such determinations unless left with a "definite and firm conviction that a mistake has been made." Murphy v. Murphy, 812 P.2d 960, 964 n. 7 (Alaska 1991). There was evidence to support the trial court's findings, and they cannot be called clearly erroneous. We therefore affirm the trial court's finding that Karen was liable to make support payments to Thomas. 3. The court erred in setting the amount of prospective support Karen argues that the trial court erred by calculating her support obligation without regard to Kenneth's one-half ownership of two valuable income-generating fishing permits. There is authority for,the proposition that an adult disabled child's "ability to provide for herself out of her own means must always be considered" when determining whether a parent has a continuing duty of support for that child. Sayne v. Sayne, 39 Tenn.App. 422, 284 S.W.2d 309, 312 (1955) (ordering support for disabled 27-year-old child); see also 59 Am.Jur.2d Parent & Child § 103 (1971) (citing Sayne). We believe that the Sayne principle .is economically sound and consistent with the rule set forth in Streb. We therefore incorporate it into Streb ⅛ general rule for ordering support for an adult dependent child, and direct the superior court to reconsider Karen's support obligation in light of this principle. Even without considering Sayne, however, we would be obliged to reverse the lower court's support award, because it was calculated in violation of Streb. As noted above, Streb requires that "the [support] award should be reasonably calculated to reimburse the moving party for a fair percentage of the funds actually spent on reasonable child care expenditures." 774 P.2d at 801. In this ease, the court's finding of "funds actually spent" on Kenneth's support came from Thomas' estimated budget of $1460 per month. The court set Karen's support obligation at $500, an amount less than 50% of Kenneth's monthly expenses, in order to "motivate[] [Thomas] to help Kenny advance" toward self-sufficiency. Thus in calculating the support award, the lower court apparently assumed that Thomas would personally spend the full $1460 needed to support Kenneth. That assumption, however, ignored the fact that the court also held that Kenneth was a 50% owner of a fishing permit worth $150,000. According to Michelle's testimony, this permit produced $30,-000 per year in before-tax income to the permit-holder who fished it. Kenneth had fished the permit with his father and sister in 1992, and Michelle testified that Kenneth was expected to fish the permit again in 1994. Michelle also testified that she planned to sell the Norton Sound herring permit and split the money with Kenneth. This undisputed evidence of Kenneth's past and future income-earning capability disproves the central assumption of the court's calculation of Karen's support payments: that Thomas would be "out-of-pocket" for the entire $1460 per month needed to support Kenneth. Because the court failed to properly calculate how much Thomas would "actually spen[d] on reasonable child care expenditures," Streb, 114 P.2d at 801, the derivative figure that Karen was ordered to pay as support is also in error. Consequently, the court's calculation of Karen's support obligation was an abuse of discretion and must be reversed. On remand, the court should calculate the amount of Kenneth's $1460 per month expenses that Thomas will be forced to "actually spen[d]." Id. Karen may then be ordered to pay a "fair percentage" of that amount. Id. Karen also claims that the court "failed to articulate its basis for assessing $500 per month" in support, and failed to "set any guidelines or standards to assist [her] in determining when to request a hearing and the nature of proof required [to change the support payments]." We agree that in light of the facts of this case, the court should have differently structured the quarterly reviews of the support award. As noted, uneontested evidence indicated that Kenneth had income-earning capability, and the court found that "at some point, probably soon, Kenny will be able to at least partially support himself." Under these circumstances, we hold that the court's order should be modified to make clear that on quarterly review it will be incumbent on Thomas to demonstrate that Kenneth's disability, and thus the need for support, continues. With that modification in place, however, Karen has no basis to complain that the court's order lacks sufficient standards. The court stated that "support will continue so long as Kenny lives with Tom, and it will continue only so long as he is unable to fully support himself due to the emotional problems described by Dr. Patrick." These criteria, along with the standard set forth in Streb, provide adequate information to guide Karen during the quarterly reviews of the support order: the amount of the award will be modified if it no longer represents a "fair percentage of funds actually spent on reasonable . care" for Kenneth. Id. As the court's findings imply, modification of the payments will be warranted if Kenneth is able to "at least partially support himself," and the payments to Thomas will cease altogether if Kenneth leaves home or becomes able to "fully support himself." B. The Lower Court's Division of Property Was Not Erroneous Equitable division of marital assets by the superior court involves a three step procedure. First, the trial court must determine what specific property is available for distribution. Second, the court must find the value of this property. Third, it must decide how an allocation can be made most equitably. Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983). Karen's arguments regarding the court's division of property implicate each of Wanberg's three steps. Karen argues that the Bristol Bay permit should have been classified as marital property. She claims that the court improperly valued Thomas' PERS state retirement benefits. Finally, she contends the court erred by awarding Thomas all of the family's vehicles. We review the trial court's division of property under an abuse of discretion standard. Id. Whether the trial court applied the correct legal standard is a question we resolve using our independent judgment. Id. 1.The Bristol Bay permit The lower court found that Thomas and Karen gave the Bristol Bay permit to Michelle Sanders in constructive trust for her and her brother. We have held that a gift to a third person out of the marital property is valid when both spouses act together in making the gift. Brooks v. Brooks, 733 P.2d 1044, 1055 (Alaska 1987). "However, if both spouses do not join in making the gift, it is voidable at the option of the nonparticipating spouse." Id. Karen contends that the lower court erred in finding that an effective gift had occurred. Karen claims that there was a "dearth of evidence regarding [her] donative intent," and thus essentially argues that Brooks ' requirement that both spouses act together was not met. Second, she notes that the date when property should be classified as separate or marital is the date of separation. Ogard v. Ogard, 808 P.2d 815, 819 & n. 8 (Alaska 1991). This implies that since the permit was not officially transferred to Michelle until after the separation, the permit must be considered marital property. Finally, Karen points out that a donor must part with all present and future dominion over property before a gift inter vivos can be said to have occurred. Boston Ins. Co. v. Beckett, 419 P.2d 475, 477 (Idaho 1966). She argues that since Thomas had access to an account into which the family's fishing revenue was deposited, he did not divest himself of control' over the permit, and thus the gift should not be considered valid. But, as Thomas notes, the lower court heard sufficient testimony to allow it to conclude that Karen originally agreed that the permit should be transferred to Michelle, but then changed her mind during litigation and sought to void the gift. Additionally, Thomas' access to the bank account has no bearing on his control over a revenue-generating asset like the permit. Karen has not shown Thomas had any control over where Michelle deposited the proceeds from fishing the permit. There is no evidence that Thomas failed to fully relinquish the permit to his daughter. The final point concerns the timing of the permit's transfer. The question is whether, in light of the trial court's finding that Thomas and Karen agreed to give the permit to their children, the permit can be excluded from marital property even though it was not formally transferred to Michelle until after the separation. We believe the trial court's disposition of this issue was correct. The gift of the marital asset at issue here does not give rise to the concerns implicated by Brooks, since (according to the trial court finding, which cannot be termed clearly erroneous) Karen acceded to the transfer. We therefore affirm the trial court's classification of the Bristol Bay permit. 2. Thomas' retirement benefits Karen has forfeited her ability to complain that the court undervalued Thomas' PERS benefits, because her counsel stipulated to their value at trial. See Oregon Auto. Ins. Co. v. Watkins, 506 P.2d 179, 181 (Or.1973) (disallowing appeal of factual issue which had been subject of stipulation at trial). 3. The family vehicles The court's award of the family's vehicles to Thomas does not constitute an abuse of discretion. Karen's argument overlooks the fact that the court divided the property equally: Thomas was credited with the value of each automobile and Karen was awarded items of offsetting value. Furthermore, Karen stated that she would sell the Audi to Thomas for $2500 and that she did not want any of the other vehicles. Karen seems most upset about the loss of the Audi. But while that car may have been driven mainly or exclusively by her, it has no obvious intangible value that shows the court's financial ledger-balancing to be an abuse of discretion. C. The Lower Court Erred in Awarding Attorney's Fees Karen's final argument is that the court erred by awarding Thomas $8500 in attorney's fees. The award of attorney's fees in divorce actions is within the broad discretion of the trial court. Kowalski v. Kowalski, 806 P.2d 1368, 1372 (Alaska 1991). Nevertheless, we agree that this fee award must be reversed. Alaska Statute 25.24.140 provides that the court may order one spouse to pay an amount of fees and costs necessary to enable the other spouse to prosecute or defend the action. "The purpose of the statute is to 'assure that both spouses have the proper means to litigate the divorce action on a fairly equal plane.' " Id. (citation omitted). Thus the general rule with regard to fees in a divorce case is that [t]he relevant considerations for determining attorney's fees awards in divorce cases are the relative economic situation and earning power of each party. If the parties are in "comparable economic situations, each side should bear [its] own costs." Doyle v. Doyle, 815 P.2d 366, 373 (Alaska 1991) (citations omitted). The parties to this litigation possess relatively equivalent incomes and, in the wake of the trial court's property division, equal assets. Nevertheless, the trial court awarded Thomas $8500 in attorney's fees, explaining that counsel and the submissions indicate $25,-000 [in legal] fees from Tom, who had to bear the lion's share of the preparation. I think the record is quite convincing that . almost all of the preparation of the case was done by [Thomas' attorney].... I think the parties should split the expense of this litigation evenly, and so it takes [an] $8500 [payment by Karen to Thomas] to put them in an equivalent, position, with each paying about $16,500. Karen appeals this award as inconsistent with the general rule that equally situated parties should bear their own fees. Thomas cites Johnson v. Johnson, 564 P.2d 71, 77 (Alaska 1977), for the proposition that the amount of fees expended by each party may be considered by a court in making an award. He also notes that fees can be awarded where one party causes unwarranted delay and unnecessary costs, see Hartland v. Hartland, 777 P.2d 636, 644 (Alaska 1989), and alleges that Karen is guilty of these offenses. Thomas' citations to authority are inapposite. His attempt to defend the fee award as the result of Karen's alleged misconduct fails, because "the court must make explicit findings of bad faith or vexatious conduct and clearly explain its reasons" when it departs from the general rule that equally situated parties will bear their own costs. Kowalski, 806 P.2d at 1373. The lower court made no such findings here. Thomas is also wrong to argue that the lower court "had authority under Johnson to place the parties in an equivalent financial position where there had been inequality in fees and ef forts." In Johnson, we affirmed a trial court's decision to deny a fee award in a divorce case where marital property was divided evenly and each party was reportedly "bankrupt." 564 P.2d at 77. In other words, the trial court in Johnson refused to depart from the general rule that similarly situated parties bear their own costs. As Kowalski explains, the purpose of the fee-shifting statute in divorce actions is to "assure that both spouses have the proper means to litigate the divorce action on a fairly equal plane." 806 P.2d at 1372 (citations omitted). In this ease, the parties are equally situated economically. Thomas simply spent more resources preparing his case than Karen did preparing hers. This tactical litigation decision does not demonstrate the financial disadvantage that justifies an attorney's fee award in a divorce case. In fact, just the opposite is true: Thomas' expenditures evidence his ability to litigate the case aggressively. The attorney's fee award in this case appears to be simply an extension of the lower court's desire to divide the marriage's assets and liabilities equally. But where parties in a divorce case are equally economically situated, the default rule with regard to attorney's fees is "to each his (or her) own," not "share and share alike." We find nothing in this ease that justifies departure from that general rule. Consequently, we reverse the fee award as an abuse of discretion. IV. CONCLUSION For the reasons described above, we AFFIRM the lower court's order that Karen pay Thomas $5040 in retrospective support; the court's determination that Karen is obligated to make prospective, quarterly-reviewable support payments to Thomas on Kenneth's behalf; and the trial court's division of property. We MODIFY the court's prospective support award, however, to clarify that Thomas bears the burden of showing the need for continued support at the quarterly review sessions. Because the court failed to properly calculate how much money Thomas would actually spend on Kenneth's expenses, we REVERSE and REMAND the court's calculation of the prospective support payment. We also REVERSE the trial court's award of attorney's fees. . Plaintiffs exhibit 38 ("Child Support Guidelines Affidavit") uses Rule 90.3's formula to calculate child support based on an average of Karen's paystubs for November 1992 and May 1993. The monAly support amount, $630.00, was multiplied by eight to arrive at a $5040 award for the period encompassing October 1992 through May 1993. . Kenneth has completed the requirements for a high school diploma, owns and operates a motor vehicle, has been denied disability benefits by Social Security, and possesses the legal status of an independent adult (i.e., has no legal guardian). . Karen has also submitted an affidavit stating that Kenneth fished the Bristol Bay permit in the summer of 1994 and made approximately $30,-000. This is obviously information that was not before the trial court, since it concerns events that occurred after the trial. Karen may introduce this information at the quarterly review sessions where her support obligation will be examined, but we do not consider it here. . Karen's account of her son's post-trial income-earning activity may be correct, but as we explained above, the proper occasion for Karen to present that information is during one of the quarterly review opportunities established by the trial court. . Karen cites AS 25.20.040 in support of her claim that the court improperly ignored Kenneth's assets when it imposed the $500 per month support obligation. Alaska Statute 25.20.040 provides that, under certain circumstances, the expense of maintaining a child "may be defrayed out of income from the minor's property." The statute is unhelpful to Karen, however — mainly because it contains merely a permissive authorization, not a mandatory command, that a child's assets are available for use. AS 25.20.040. For the reasons described in the textual discussion that follows, however, we hold that Karen's more general objections to the trial court's computation of her support obligation have merit. .Sayne took care to note, however, that the fact that the child's estate must be considered in relation to the support ability of the parent does not mean that the child's property must be exhausted before contribution from the parent will be required. 284 S.W.2d at 312. . At one point in her brief, Karen implies that she is also objecting to the court's disposition of a second fishing permit, a Norton Sound herring permit which Thomas purchased with separate property and later transferred to Michelle. Karen has not briefed this argument, and thus we will not consider it on appeal. Kristich v. State, 550 P.2d 796, 804 (Alaska 1976). . This is effectively what happened, since Thomas was awarded the vehicle and credited with a $2500 asset on his side of the ledger. . Documents filed with the court show Thomas' income to be considerably higher than Karen's. Under the superior court's order, however, most of this disparity was scheduled to terminate, because Thomas was directed to sell a duplex and would consequently lose $1000 per month in rental income. . Thomas complains that Karen's "discovery responses were generally defective, forcing Tom to spend several extra hours of attorney time and money sorting through them." He also accuses Karen of forcing him to file an expedited motion and forcing him to come to a calendar call with a motion to resolve an issue to which Karen had failed to stipulate. Finally, he claims that Karen failed to pay half of the appraisals ordered in preparation for trial.

10340008

Timothy C. GUNDERSON, d/b/a Alaska Contract Motor Express, Appellant, v. UNIVERSITY OF ALASKA, FAIRBANKS, and Alaska Railroad Corporation, Appellees

Gunderson v. University of Alaska, Fairbanks

1995-09-08

No. S-6570

323

330

902 P.2d 323

902

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:43:34.517492+00:00

CAP

Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

Timothy C. GUNDERSON, d/b/a Alaska Contract Motor Express, Appellant, v. UNIVERSITY OF ALASKA, FAIRBANKS, and Alaska Railroad Corporation, Appellees.

Timothy C. GUNDERSON, d/b/a Alaska Contract Motor Express, Appellant, v. UNIVERSITY OF ALASKA, FAIRBANKS, and Alaska Railroad Corporation, Appellees. No. S-6570. Supreme Court of Alaska. Sept. 8, 1995. Lloyd I. Hoppner, Hoppner & Paskvan, P.C., Fairbanks, and Wallace M. Rudolph, Tacoma, WA, for appellant. James Sarafin, Wohlforth, Argetsinger, Johnson & Brecht, Anchorage, for appellee University of Alaska, Fairbanks. William R. Hupprich, Alaska Railroad Corporation Office of the General Counsel, Anchorage, and Gary Foster, Law Office of Gary Foster, Fairbanks, for appellee Alaska Railroad Corporation. Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

4132

26467

OPINION MOORE, Chief Justice. This case arises out of a sole source contract issued by the University of Alaska, Fairbanks campus, (UAF) to Timothy Gun-derson, d/b/a Alaska Contract Motor Express (Gunderson). UAF cancelled the contract after Alaska Railroad Corporation (ARRC) filed a formal protest, asserting that the sole source contract violated state law. See AS 36.30.300 (providing that a sole source procurement may not be awarded if a reasonable alternative source exists). Gunderson then sued both UAF and ARRC under a variety of theories. On motion by ARRC, the superior court dismissed Gunderson's claims against ARRC, ruling that ARRC was immune from suit under the Noerr-Pennington doctrine. See Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., — U.S. -, 113 S.Ct. 1920, 1926, 123 L.Ed.2d 611 (1993) (under Noerr-Penning-ton doctrine, those who petition the government for redress are generally immune from antitrust and related liability). In this appeal, Gunderson asserts that the Noerr-Pennington doctrine does not bar his claims against ARRC. He also asserts that the court improperly entered final judgment in favor of ARRC under Alaska Civil Rule 54(b). However, because we consider the issues raised in Gunderson's appeal appropriate for discretionary review under Alaska Appellate Rule 402(b), we need not consider whether the superior court erred in entering final judgment. See Alaska RApp.P. 402(b)(2) (providing that discretionary review is appropriate where an order or decision involves an important question of law on which there is substantial ground for difference of opinion and immediate review may materially advance the ultimate termination of the litigation). I. FACTS AND PROCEEDINGS In 1992 Gunderson submitted an unsolicited proposal to UAF, offering to truck coal to UAF from the Usibelli Coal Mine and to deliver this coal directly into coal hoppers at the UAF power plant in Fairbanks. Up to that time, the coal had been transported by ARRC and delivered in railcars to a siding next to the power plant. This method of delivery required UAF employees to unload coal into the hoppers: a difficult, dangerous and time-consuming job. UAF officials determined that Gunderson's proposal qualified as a "unique offer" under UAF procurement regulations and awarded Gunderson a five-year sole source contract. The contract set a price of $8.25 per ton and estimated a need for 60,500 tons per year, bringing the total contract price to just under $500,000 per year. Upon learning of this contract, ARRC filed a formal written protest with UAF. See AS 36.30.560 (providing that an interested party may protest a contract award). It asserted that the sole source contract violated both state and university procurement codes and requested that UAF cancel the contract and publicly solicit competitive bids for the job, UAF's Chief Procurement Officer, Charles Hill, denied ARRC's protest on the ground that ARRC lacked-standing to protest UAF's award of the sole source contract because ARRC was not an "interested party" as defined in AS 36.30.699. ARRC appealed this decision and requested a hearing before an independent hearing officer as authorized by AS 86.80.590. Gerald Neubert, University Architect and Acting Chief Procurement Officer for Protest, subsequently notified ARRC that a hearing would be held for the limited purpose of determining whether ARRC was an "interested party" capable of delivering and unloading coal into the UAF hoppers. The Pre-Hearing Order framed the scope of the hearing as follows: In order to show that it has standing to maintain an appeal, ARRC has the burden of proving, by a preponderance of the evidence, that at the time the University of Alaska awarded Contract 93-0012 to [Gun-derson], ARRC was able to economically provide all services required under the . contract and was willing to do so. The parties who will participate in this limited hearing are ARRC and the University of Alaska. [Gunderson] is not a party. Hearing Officer Neubert issued written findings of fact and conclusions of law shortly after the hearing. He found, in part: 11. In 1992, ARRC had equipment and manpower available at its Fairbanks rail yard to move coal cars from the UAF rail siding to the UAF power plant hoppers and to unload those coal cars. It also had the ability to subcontract these services. 12. In 1992, ARRC would have been willing to bid on a UAF proposal to provide coal transportation and unloading services to the UAF power plant using its own personnel and equipment. ARRC would have been capable of performing such services. 13. In 1992, ARRC routinely submitted bids or proposals to customers who solicited bids or proposals for transportation and related services. ARRC routinely entered into volume or "requirements" transportation contracts with customers at rates below those contained in ARRC's published tariffs. 14. If UAF had advertised for bids or proposals for coal transportation/unloading services, ARRC would have submitted a bid or proposal to provide such services. 15. UAF's award of a sole source contract to [Gunderson] has substantially affected ARRC's economic interests by depriving ARRC of an opportunity to earn in excess of $2.5 million over the term of the contract. ARRC has an economic interest in the UAF coal delivery contract. Based on these findings, the hearing officer concluded that ARRC was an "interested party" under AS 36.30.699 because it had the capability to transport and unload coal into the hoppers of the UAF power plant without the assistance of UAF personnel or equipment. He then ruled: AS 36.30.300 allows a sole source procurement if there is only one source for the required procurement. If there is a reasonable alternative source, a sole source procurement may not be awarded. Because ARRC was a reasonable alternative source for the delivery and unloading of coal, it was improper, as a matter of law, for UAF to award a sole source contract to [Gunderson], The ARRC protest was legally sufficient and should have been upheld. UAF subsequently issued a request for proposals for coal transportation and unloading services. Nine companies, including ARRC and Gunderson, submitted bids. UAF awarded the contract to Royal Contractors, the lowest bidder. Gunderson filed a formal protest with UAF, requesting that UAF cancel the contract with Royal Contractors and reinstate his contract. UAF denied this protest. In August 1993 Gunderson sued both UAF and ARRC under a variety of theories. In the fourth count of his complaint, Gunderson asserted the following claims against ARRC: [ARRC] has a monopoly of coal shipments into Fairbanks and generally into interior Alaska. [ARRC], in an attempt to maintain its monopoly, filed a frivolous protest against the issuance of the UAF contract to Gunderson. In the hearing that was subsequently held pursuant to the protest (a hearing in which UAF barred Gunder-son from participating), [ARRC] misrepresented the facts and misrepresented its intention to bid a competitive price with Gunderson. The misrepresentation by [ARRC] was for the purpose of injuring Gunderson, and excluding the trucking industry from competing with [ARRC] for the hauling of coal in [the] interior of Alaska. These acts by [ARRC] constitute a Common law tort of interference with Gunderson's contractual relationship with UAF; constitute a common law tort of interference with Gunderson's prospective advantage with UAF and other coal consumers in interior Alaska; and constitute a violation of Article A.S. § 45.50.471, 501, 531 and A.S. § 45.50.562, 45.50.576; or, in the alternative, a violation of 42 U.S.C. 1983. As a result of these common law torts and statutory violations, Gunderson has been damaged in a sum or sums to be proved at trial and is entitled to have these damages tripled pursuant to the appropriate statutory remedies. ARRC moved to dismiss these claims under Civil Rule 12(b)(6), arguing, inter alia, that the Noerr-Pennington doctrine barred Gunderson's claims against ARRC. The superior court granted ARRC's motion, ruling that ARRC was immune from suit under the Noerr-Pennington doctrine. Because the court considered materials outside the pleadings in dismissing Gunderson's claims, it treated ARRC's motion as a motion for summary judgment. On motion by ARRC, the court then entered final judgment in favor of ARRC under Alaska Civil Rule 54(b). This appeal followed. II. . STANDARD OF REVIEW We review de novo the superior court's grant of summary judgment. Kollodge v. State, 757 P.2d 1024, 1026 n. 4 (Alaska 1988). "[S]ummary judgment is affirmed if the evidence in the record fails to disclose a genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Dayhoff v. Temsco Helicopters, Inc., 772 P.2d 1085, 1086 (Alaska 1989). In reviewing the record, we draw all reasonable inferences in favor of the non-moving party. Id. III. DISCUSSION The Noerr-Pennington doctrine evolved out of two United States Supreme Court cases: Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), and United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). In these decisions, the Court held that attempts to influence legislative and executive officials were beyond the scope of the Sherman Act, reasoning that Congress did not intend federal antitrust law to regulate political activities or to infringe on the First Amendment rights of petition and association. Noerr, 365 U.S. at 136-38, 81 S.Ct. at 528-29; Pennington, 381 U.S. at 669-70, 85 S.Ct. at 1592-93; see generally John P. Lud-ington, Annotation, Application of Doctrine Exempting From Federal Antitrust Laws Joint Efforts to Influence Legislative or Executive Action, 17 A.L.R.Fed. 645 (1973). In California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972), the Court extended the Noerr-Pennington doctrine to include attempts to influence adjudicatory proceedings before administrative agencies and the courts. Id. at 510, 92 S.Ct. at 611. [I]t would be destructive of rights of association and of petition to hold that groups with common interests may not, without violating the antitrust laws, use the channels and procedures of state and federal agencies and courts to advocate their causes and points of view respecting resolution of their business and economic interests vis-a-vis their competitors. Id. at 510-11, 92 S.Ct. at 611. In his brief, Gunderson concedes that the Noerr-Pennington doctrine protects the right of a party to invoke the legal process "without fear that such action would be eon- sidered a tortious interference with prospective advantage or a violation of the State's antitrust laws." However, Gunderson goes on to argue that ARRC subverted the legal process by presenting false and misleading evidence at the April 1992 hearing. For this reason, Gunderson argues that ARRC engaged in a "sham" protest designed to destroy Gunderson's contractual relationship with UAF. The United States Supreme Court has observed that a party will be subject to federal antitrust liability if its efforts to influence governmental action are "a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor." Noerr, 365 U.S. at 144, 81 S.Ct. at 533; see also California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 511-13, 92 S.Ct. 609, 611-12, 30 L.Ed.2d 642 (1972). In California Motor, a group of California truckers instituted a series of state and federal proceedings in an effort to defeat an application for in-state operating rights filed by a group of out-of-state truckers. The out-of-state truckers subsequently filed a civil action, alleging that the California truckers had violated federal antitrust laws. In holding that the district court had erred in dismissing their complaint under the Noerr-Pennington doctrine, the Supreme Court observed: Misrepresentations, condoned in the political arena, are not immunized when used in the adjudicatory process. Opponents before agencies or courts often think poorly of the other's tactics, motions, or defenses and may readily call them baseless. One claim, which a court or agency may think baseless, may go unnoticed; but a pattern of baseless, repetitive claims may emerge which leads the factfinder to conclude that the administrative and judicial processes have been abused. That may be a difficult line to discern and draw. But once it is drawn, the case is established that abuse of those processes produced an illegal result, viz., effectively barring respondents from access to the agencies and courts. Insofar as the administrative or judicial processes are involved, actions of that kind cannot acquire immunity by seeking refuge under the umbrella of "political expression." Id. 404 U.S. at 513, 92 S.Ct. at 612. In the wake of California Motor, many courts have held that the filing of a single lawsuit may, in certain circumstances, constitute an abuse of the judicial process for the purposes of the Noerr-Pennington doctrine. See, e.g., Aydin Corp. v. Loral Corp. 718 F.2d 897, 903 (9th Cir.1983) (holding that a single action is sufficient to invoke the sham exception); Energy Conservation, Inc. v. Heliodyne, Inc., 698 F.2d 386, 389 (9th Cir.1983) (holding that a single baseless suit may be held to constitute a sham so long as some abuse of process is alleged); First Nat'l Bank v. Marquette Nat'l Bank, 482 F.Supp. 514, 520-21 (D.Minn.1979), aff'd, 636 F.2d 195 (8th Cir.1980), cert. denied, 450 U.S. 1042, 101 S.Ct. 1761, 68 L.Ed.2d 240 (1981) (holding that the filing of a single action may constitute a "sham" under the Noerr-Pen-nington doctrine if the action involved uneth ical conduct). See generally Glenn A. Guari-no, Annotation, "Sham" Exception to Application of Noerr-Pennington Doctrine, Exempting from Federal Antitrust Laws Joint Efforts to Influence Governmental Action, 71 A.L.R.Fed. 723 (1985). In Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, — U.S. -, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993), the Supreme Court established a two-part test for determining whether a particular lawsuit constitutes a "sham." First, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits. If an objective litigant could conclude that the suit is reasonably calculated to elicit a favorable outcome, the suit is immunized under Noerr, and an antitrust claim premised' on the sham exception must fail. Only if challenged litigation is objectively meritless may a court examine the litigant's subjective motivation. Under this second part of our definition of sham, the court should focus on whether the baseless lawsuit conceals "an attempt to interfere directly with the business relationships of a competitor," Noerr, supra, 365 U.S., at 144, 81 S.Ct., at 533 (emphasis added), through the "use [of] the governmental process — as opposed to the outcome of that process — as an anticompeti-tive weapon," [City of Columbia, Columbia Outdoor Advertising, Inc. v.] Omni [Outdoor Advertising], 499 U.S., [365] at 375, 111 S.Ct., at 1354 [113 L.Ed.2d 382] (emphasis in original). This two-tiered process requires the plaintiff to disprove the challenged lawsuit's legal viability before the court will entertain evidence of the suit's economic viability. Of course, even a plaintiff who defeats the defendant's claim to Noerr immunity by demonstrating both the objective and the subjective components of a sham must still prove a substantive antitrust violation. Proof of a sham merely deprives the defendant of immunity; it does not relieve the plaintiff of the obligation to establish all other elements of his claim. Id. — U.S. at -, 113 S.Ct. at 1928 (footnote omitted). However, the Court in Columbia Pictures expressly declined to decide whether the Noerr-Pennington doctrine immunizes parties who commit fraud and misrepresentation in bringing an action. In surveying the "forms of illegal and reprehensible practice which may corrupt the administrative or judicial processes and which may result in antitrust violations," we have noted that "unethical conduct in the setting of the adjudicatory process often results in sanctions" and that "[m]is-representations, condoned in the political arena, are not immunized when used in the adjudicatory process." California Motor Transport, 404 U.S., at 512-513, 92 S.Ct., at 613. We need not decide here whether and, if so, to what extent Noerr permits the imposition of antitrust liability for a litigant's fraud or other misrepresentations. Cf. Fed.Rule Civ.Proc. 60(b)(3) (allowing a federal court to "relieve a party . from a final judgment" for "fraud ., misrepresentation, or other misconduct of an adverse party"); Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 176-177, 86 S.Ct. 347, 349-350, 15 L.Ed.2d 247 (1965); id. at 179-180, 86 S.Ct., at 351-52 (Harlan, J., concurring). Id. — U.S. at -, 113 S.Ct. at 1929 n. 6. On appeal, Gunderson does not argue that ARRC's protest was "objectively baseless." Rather, he asserts, as he did below, that ARRC misrepresented its ability and intention to bid a competitive price at the April 1992 hearing. Citing footnote six of Columbia Pictures, Gunderson argues that ARRC's alleged misrepresentations at the hearing suffice to make its protest a "sham" without regard to the objective merit of its protest or ARRC's motivation. In other words, Gun-derson contends that where a party engages in misrepresentation or fraud during the judicial process, the two-part Columbia Pictures test does not apply. As the superior court observed, the Ninth Circuit recently considered and rejected this very argument. See Liberty Lake Invs., Inc. v. Magnuson, 12 F.3d 155 (9th Cir.1993), cert.0 denied, — U.S. -, 115 S.Ct. 77, 130 L.Ed.2d 32 (1994). In Liberty Lake, a property developer sued a number of business competitors, alleging that they had conspired to mount a frivolous environmental challenge to the developer's plans to market a tract of land as a regional shopping center. Id. at 156. The district court granted summary judgment in favor of the defendants, ruling, inter alia, that the defendants were immune from suit under the Noerr-Pennington doctrine. Id. On appeal, the Ninth Circuit affirmed, holding that the environmental challenge was not "objectively baseless" under Columbia Pictures and that the defendants were entitled to Noerr-Pennington immunity. Id. at 157-58. The court rejected the developer's contention that the defendants' alleged fraud and misrepresentations in the course of the litigation sufficed "to make the litigation a sham without regard to the objective merit of the lawsuit or its proponents' motivation." Id. at 158. As we read the Court's footnote 6, however, it does no more than reserve the issue of whether antitrust liability may be premised on a litigant's deceptive conduct which goes to the core of a lawsuit's legitimacy, such that it is not "genuine," either in the sense of "'having the reputed or apparent qualities or character' " (i.e., objectively "genuine") or being "'sincerely and honestly felt or experienced' " (i.e., subjectively "genuine"). Id. [— U.S.] at -, 113 S.Ct. at 1929 (quoting Webster's Third New International Dictionary 948 (1986)). Following its reservation of the question whether "fraud or other misrepresentations" may amount to "sham," the Court cited as analogous authority Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 86 S.Ct. 347,15 L.Ed.2d 247 (1965), which held that a patent procured by intentional fraud on the Patent Office could form the basis for a federal antitrust claim, id. at 176-77, 86 S.Ct. at 349-50; Justice Harlan's Walker Process concurrence which emphasized that the Court's holding reached only "deliberate fraud," id. at 179-80, 86 S.Ct. at 351-52 (Harlan, J., concurring); and Rule 60(b)(3), which allows a party to obtain relief from judgment because of its opponent's "fraud . misrepresentation, or other misconduct." In a ease involving a fraudulently-obtained patent, that which immunizes the predatory behavior from antitrust liability (the patent) is, in effect, a nullity because of the underlying fraud. Similarly, Rule 60(b)(3) enables a party to set aside an otherwise valid judgment on the ground that it resulted from an opposing party's fraudulent behavior or misrepresentation to the court. See Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil § 2860, at 188-89 (1973). Read in context with the entire [Columbia Pictures ] opinion, footnote 6 does not obviate application of the Court's two-part test for determining sham litigation in' the absence of proof that a party's knowing fraud upon, or its intentional misrepresentations to, the court deprive the litigation of its legitimacy. Id. at 158-59 (footnote omitted). We find the Ninth Circuit's reading of Columbia Pictures persuasive. Allegations of fraud and misrepresentation in the judicial process will only block Noerr-Pennington immunity when such allegations go "to the core of a lawsuit's legitimacy." Id. at 158. In this case, Gunderson's complaint charged ARRC with misrepresenting "the facts and . its intention to bid a competitive price with Gunderson" in its protest. Even assuming the truth of this charge, these misrepresentations do not go to the heart of ARRC's protest. ARRC challenged the sole source contract award to Gunderson on the ground that it was capable of providing the delivery and unloading services offered by Gunder-son. See AS 36.30.300 (providing that a sole source procurement is permitted only when there is one source for the required good or service). Gunderson has never argued that ARRC is not capable of providing these services. As noted by ARRC, the fact that ARRC prevailed in its protest and that nine companies ultimately submitted bids demonstrates the protest's legitimacy. See Colum bia Pictures, — U.S. at -, 113 S.Ct. at 1928 (noting that a successful lawsuit is "by definition a reasonable effort at petitioning for redress and therefore not a sham"). We therefore conclude that the superior court properly granted summary judgment in favor of ARRC. AFFIRMED. . AS 36.30.699 provides: In AS 36.30.560 — 36.30.695, "interested party" means an actual or prospective bidder or offeror whose economic interest may be affected substantially and directly by the issuance of a contract solicitation, the award of a contract, or the failure to award a contract; whether an actual or prospective bidder or offeror has an economic interest depends on the circumstances. . Royal Contractors bid $7.57 per ton. Gunder-son submitted the third lowest bid, at $8.18 per ton. ARRC bid $10.20 per ton, the fifth lowest bid. . Gunderson raised the following causes of action against UAF: (1) breach of contract; (2) breach of duty of confidentiality and expropriation of intellectual property; and (3) due process violations. . Thus Gunderson concedes that the Noerr-Pen-nington doctrine applies to his state antitrust law claims under AS 45.50.562-.596 (Alaska Restraint of Trade Act). He also concedes that the Noerr-Pennington doctrine may bar a party from bringing related business tort and § 1983 claims. See Video Int'l Prod. v. Warner-Amex Cable Communications, Inc., 858 F.2d 1075, 1084 (5th Cir. 1988), cert. denied, 491 U.S. 906, 109 S.Ct. 3189, 105 L.Ed.2d 697 (1989) (holding that conduct protected from antitrust liability under the Noerr-Pennington doctrine is also shielded from business tort and § 1983 claims). . On appeal, Gunderson also contends that ARRC's protest falls within the "sham" exception because he was improperly excluded from the April 1992 hearing in violation of his due process rights. However, Gunderson did not present this argument to the trial court or include this issue in his points on appeal. Therefore it is waived. See Moran v. Holman, 501 P.2d 769, 769-70 (Alaska 1972) (this court will not consider on appeal arguments which were not raised before the trial court or which were not included in statement of points on appeal). In any case, Gunderson makes no attempt to argue that ARRC affirmatively sought to exclude Gunderson from the hearing or that ARRC was involved in any way in the hearing officer's decision. As ARRC points out, in the absence of any such connection, Gunderson's exclusion from the hearing process has no bearing on its right to Noerr-Pennington immunity. . In a related argument, Gunderson contends that the superior court improperly "assumed" that the sole source contract was illegal under AS 36.30.300. Essentially, Gunderson is arguing that UAF should be able to award a sole source contract to a business which comes up with an innovative service, even if other businesses are equally capable of providing the proposed service. However, this argument has no bearing on whether ARRC is entitled to Noerr-Pennington immunity. Even if the superior court were to ultimately conclude that UAF could properly award Gunderson a sole source contract in these circumstances, ARRC would still be entitled to immunity as long as there was a legitimate basis for its protest. See Columbia Pictures,-U.S. at-n. 5, 113 S.Ct. at 1928 n. 5 (noting that a losing lawsuit does not prove that the litigation was a sham). . Because we conclude that the Noerr-Penning-ton doctrine bars Gunderson's claims, we need not address the other grounds raised by ARRC for affirming the superior court's dismissal.

10339937

Mattfi ABRUSKA, Appellant, v. DEPARTMENT OF CORRECTIONS, STATE OF ALASKA, Appellee

Abruska v. Department of Corrections

1995-09-08

No. S-6063

319

323

902 P.2d 319

902

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:43:34.517492+00:00

CAP

Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

Mattfi ABRUSKA, Appellant, v. DEPARTMENT OF CORRECTIONS, STATE OF ALASKA, Appellee.

Mattfi ABRUSKA, Appellant, v. DEPARTMENT OF CORRECTIONS, STATE OF ALASKA, Appellee. No. S-6063. Supreme Court of Alaska. Sept. 8, 1995. Mattfi Abruska, Seward, pro se. Timothy W. Terrell, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for appellee. Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

1614

10338

OPINION MOORE, Chief Justice. In this pro se appeal from a Department of Corrections (DOC) disciplinary ruling, Mattfi Abruska contends that DOC's actions during the disciplinary process deprived him of due process of law. We reverse and remand. I. FACTS AND PROCEEDINGS Mattfi Abruska is an inmate at the Spring Creek Correctional Center. On June 21, 1992, corrections officer Diane Pillars filed an incident report charging Abruska with violating 22 AAC 05.400(d)(1) (prohibiting indecent exposure). In her report, Officer Pillars stated that Abruska had deliberately exposed his genitals to her on several occasions during night-time security checks of Abruska's dorm module. On June 26, 1992, Abruska was notified of the pending charges and the scheduled disciplinary hearing date — July 8, 1992. He was also allowed to select a staff advocate to help him prepare for the hearing. Two days before the scheduled hearing, Abruska notified the disciplinary committee that he waived the assistance of a staff advocate at the hearing. He also requested that Officer Pillars and two inmates, Frank Prince and Stanley George, testify at the hearing. On July 8,1992, the disciplinary committee met briefly and then postponed the hearing for thirty working days, citing the fact that Officer Pillars was not available to testify. Abruska was notified of the new hearing date on August 10 and was. provided with a new staff advocate. This staff advocate discussed the hearing process with Abruska several days before the rescheduled hearing. Abrus-ka again requested that Officer Pillars and inmates George and Prince testify at the hearing. At the August 19th hearing, Abruska denied that he had deliberately exposed himself to Officer Pillars. Abruska did not question Officer Pillars, who was present at his request. The disciplinary chairperson denied Abruska's request to have inmates Prince and George testify on the grounds that they were not party to the incident. After the hearing, the disciplinary committee concluded that Abruska had committed the infraction and sanctioned him with one week of restriction to his living module. Abruska appealed this decision to the Spring Creek Acting Superintendent and to the Director of Institutions. Both appeals were denied. Abruska appealed this decision to the superior court, arguing that DOC's actions during the disciplinary process had violated his right to due process. Abruska also asserted that his staff advocate had refused to assist him in preparing his appeal and that this refusal had violated his right to due process. The superior court affirmed DOC's disciplinary action. This appeal followed. II. DISCUSSION This court has held that a prison disciplinary proceeding is not a criminal trial and that an inmate is therefore not entitled to the full array of constitutional rights due the accused in a criminal proceeding. McGinnis v. Stevens, 543 P.2d 1221, 1225-27 (Alaska 1975) (citing Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974)). An inmate facing a major disciplinary proceeding is, however, entitled to a number of procedural safeguards under the Due Process Clauses of the federal and state constitutions. Id. at 1225-36. Appellate courts have jurisdiction to review DOC administrative decisions which implicate an inmate's constitutional rights. Owen v. Matsumoto, 859 P.2d 1308, 1309-10 (Alaska 1993). Whether an inmate has received procedural due process is an issue of constitutional law which this court reviews de novo. Brandon v. Department of Corrections, 865 P.2d 87, 88 (Alaska 1993). A. Postponement of Disciplinary Hearing Abruska argues that he was deprived of his right to due process because the disciplinary committee postponed the July 8th hearing without adequate cause. Under 22 AAC 05.435(a), the disciplinary committee must postpone a disciplinary hearing if the accused inmate has requested the presence of the staff member who wrote the disciplinary report and the staff member is temporarily unavailable at the time of the scheduled hearing. See also 22 AAC 05.425. In this case, the disciplinary committee met briefly on July 8 and postponed the hearing for thirty working days after determining that Officer Pillars, whose presence had been requested by Abruska two days earlier, was temporarily unavailable. Abrus-ka met with his staff advocate to prepare for the August 19th hearing on August 15. Abruska contends that Officer Pillars was available on July 8 and that DOC arbitrarily decided to postpone the hearing. He also contends that he did not receive notice of the postponement until August 15,1992, and that DOC personnel fabricated documents in an attempt to show that he had received earlier notice. Abruska's arguments have little merit. The disciplinary committee's decision to postpone the original hearing comports with DOC regulations. See 22 AAC 05.435. Furthermore, Abruska has failed to show that the postponement prejudiced his ability to present a defense. B. Witnesses An inmate facing a major disciplinary hearing is entitled to call witnesses and present documentary evidence subject to certain limitations. DOC regulations provide: The chairperson of the disciplinary committee may decline, for compelling reasons, to call a witness that the accused prisoner or advocate has requested to appear, and may restrict the introduction of other evidence to avoid repetitious or irrelevant evidence or to avoid a risk of reprisal or undermining of security. 22 AAC 05.430(c). Furthermore, as we observed in McGinnis: To the extent that the calling of witnesses and presentation of evidence is repetitious or irrelevant, the chairman of the disciplinary committee is vested with the discretion under the Division's regulations, to limit testimony and the production of other evidence. 543 P.2d at 1230. In this case, Abruska contends that his right to due process was violated because the disciplinary committee refused to call inmates Frank Prince and Stanley George as witnesses. According to Abruska, Prince and George would have testified that Officer Pillars had cited them for similar conduct and that these charges were false. To the extent that this testimony would have tended to show that Officer Pillars had a history of filing similar unfounded charges against Native males, it was relevant to impeach Officer Pillars' account of the incident. The committee's chairperson thus erred in refusing to permit the proposed testimony. This error was compounded by the committee's failure to comply with the procedural requirements set forth in 22 AAC 05.420(b)(5)(A): if the prisoner or the disciplinary committee has requested the appearance of the staff member who wrote the disciplinary report, the staff member must be called into the room and questioned under 22 AAC 05.435 and 22 AAC 05.445; A plain reading of this subsection indicates that the disciplinary committee must question the staff member who wrote the disciplinary report whenever the inmate has requested the appearance of the writer of the report. Because the disciplinary committee failed to question OfScer Pillars when she was called into the hearing, it failed to comply with this requirement. Abruska was denied the opportunity to have the committee hear testimony from any of the witnesses he had requested. The committee's failure to question Officer Pillars, together with the chairperson's exclusion of the testimony of the two inmate witnesses, deprived Abruska of fundamental due process rights under the Alaska Constitution. Brandon, 865 P.2d at 90. We therefore remand this case to the superior court with directions to order the disciplinary committee to set aside Abruska's conviction and to conduct a new disciplinary hearing. C. Assistance of Staff Advocate During Appeals Process Finally Abruska asserts that he was denied due process because his staff advocate refused to assist him in preparing his internal agency appeals and his subsequent appeal to the superior court. However, nothing in the record on appeal substantiates Abruska's claim that he requested the assistance of his staff advocate at any stage of the appeals process. In any case, this argument necessarily fails because Abruska did not have a constitutional right to a staff advocate at any stage of the disciplinary process. See McGinnis, 543 P.2d at 1225-26, 1231-32. In McGinnis, this court adopted the Wolff rule regarding an inmate's right to counsel in major disciplinary proceedings and held that an inmate who is either illiterate or facing a complex case is constitutionally entitled to a staff advocate. Id. Abruska does not fall into either of these two categories. Therefore, even if Abruska's staff advocate did refuse to help him prepare Ms appeals, tMs refusal would not implicate Abruska's right to due process under either the federal or state constitution. REVERSED and REMANDED. . In his brief, Abruska repeatedly asserts that he did not intentionally expose himself to Officer Pillars. He provides a number of alternative explanations of the incident to support his claim that the exposure was inadvertent. To the extent that Abruska is challenging the disciplinary committee's finding that he committed the cited offense, this issue is not properly before this court on appeal. . This subsection requires both that the writer of the report "be called into the room" and that the writer of the report "be questioned under 22 AAC 05.435 [governing the presentation of defense witnesses and evidence] and 22 AAC 05.445 [governing the examination of witnesses by both the defendant and the disciplinary committee]." Under a straightforward reading of this language, the same subject is attributed to both verbs; or, in other words, this provision requires the committee chairperson both to call the writer of the report into the room and to question this individual. This reading is consistent with the overall organization of subsection (b)(5).

11113296

Carroll GRANT, Appellant, v. ANCHORAGE POLICE DEPARTMENT and the Municipality of Anchorage, a municipal corporation, Duane Udland, Kevin M. O'Leary, and Laren Zager, individually, Appellees

Grant v. Anchorage Police Department

2001-03-30

No. S-8844

553

559

20 P.3d 553

20

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:43:06.307332+00:00

CAP

Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.

Carroll GRANT, Appellant, v. ANCHORAGE POLICE DEPARTMENT and the Municipality of Anchorage, a municipal corporation, Duane Udland, Kevin M. O'Leary, and Laren Zager, individually, Appellees.

Carroll GRANT, Appellant, v. ANCHORAGE POLICE DEPARTMENT and the Municipality of Anchorage, a municipal corporation, Duane Udland, Kevin M. O'Leary, and Laren Zager, individually, Appellees. No. S-8844. Supreme Court of Alaska. March 30, 2001. Cathleen Nelson McLaughlin, Hagans, Ab-earn, McLaughlin & Webb, Anchorage, for Appellant. S. Lynn Erwin, Assistant Municipal Attorney, and Mary K. Hughes, Municipal Attorney, Anchorage, for Appellees. Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.

3521

22269

OPINION CARPENETI, Justice. I. INTRODUCTION Carroll Grant was terminated from the Anchorage Police Department (APD) because physical deterioration from an accidentally self-inflicted gunshot wound to his hand prevented him from performing the physical duties of a police officer. Grant did not file a grievance of his termination after his union declined to do so on his behalf. He then applied for and received permanent occupational disability from the Anchorage Police and Fire Retirement Board. Grant later filed a wrongful termination suit against the APD. Although the superior court correctly found that Grant had failed to exhaust his administrative remedies and entered summary judgment on Grant's contract-based claims, it improperly applied collateral estop-pel to preclude Grant from pursuing his disability discrimination claim. Therefore, we remand this case for further proceedings on Grant's disability discrimination claim. II. FACTS AND PROCEEDINGS Grant was an APD officer for fourteen years prior to being involuntarily terminated in 1992. Grant served as a senior patrol officer assigned to the crime prevention division. His duties did not routinely require him to respond to calls, drive marked cars; or fire weapons, although he was required to carry handcuffs and a duty weapon, and to be prepared to respond to emergency situations. In January 1987 Grant became impaired as a result of an accidentally self-inflicted gunshot wound that occurred when he was off-duty and holstering his weapon. He returned to work later in January and continued to perform his duties as an officer in the crime prevention unit. Grant was reassigned to street patrol duties in 1989 under a new department policy that rotated all officers, including senior officers, through assignments to street patrol. Despite the limitations of his left hand, Grant worked in rotations that included street patrol duty for over two years. After several visits to doctors confirmed Grant's complaints of limited strength and dexterity in his hand, he was assigned to light duty in October 1991 as a temporary accommodation to his injury pursuant to the collective bargaining agreement (CBA). Grant worked on temporary light duty assignment for about one year, primarily as a counter clerk in the records division. In March 1992 a doctor again recommended that he remain assigned to light duty because of the limited grip strength and dexterity in his left hand. In October 1992 Grant received a termination letter that gave him two weeks notice of his termination and recommended that he contact the retirement board for information on medical retirement. Grant requested a disability retirement the same day. As advised by the termination letter, Grant's employment was terminated on November 6, 1992. On November 12 Grant filed a formal application for permanent occupational disability benefits with the retirement board. In its proceedings to determine whether Grant qualified for occupational disability benefits, the retirement board examined the nature and severity of Grant's injury, whether the injury prevented Grant from performing his duties as a police officer, and the manner in which the injury occurred. In a deposition for the retirement board proceeding, Grant testified that although he was able to perform many ordinary tasks with his left hand-such as picking up a stamp off a flat surface, using a key to open a locked door, picking up a very small object like a miniature serew from a pair of eyeglasses, writing left-handed, or tying his shoes-he was unable to safely execute a forcible arrest because of the limited strength and mobility in his left hand. He testified that he was able to perform other ordinary patrol officer tasks, such as shooting a pistol with his left hand and gripping and using a baton. The retirement board awarded Grant benefits, concluding that he had adequately proved that he was permanently disabled and that his disability was occupational. Grant was a member of the Anchorage Police Department Employees Association (union). Accordingly, a collective bargaining agreement governed Grant's employment. Under the department's CBA, both the union and Grant had the right to file grievances challenging Grant's termination. After the union declined to file a grievance on Grant's behalf, Grant failed to pursue this remedy individually. Grant instead filed a complaint against APD in superior court alleging wrongful ter- ° mination, breach of contract, unlawful discrimination under AS 18.80.220(a)(1), and breach of the covenant of good faith and fair dealing. The superior court granted APD's motion for summary judgment against Grant, finding that he had not exhausted his administrative remedies and that he was collaterally estopped from claiming he was not occupationally disabled. Grant appeals. III. STANDARD OF REVIEW "We review de novo an order granting summary judgment." When reviewing a grant of summary judgment, we are required to determine whether any genuine issue of material fact exists and whether the moving party is entitled to judgment on the law applicable to the established facts. IV. DISCUSSION A. Grant Was Precluded from Making Contract-Based Claims Because He Failed to Exhaust His Administrative Remedies. The superior court dismissed Grant's contract claims because he had failed to exhaust his administrative remedies. The trial court also found that Grant had not provided any reasons justifying relief from this requirement. Grant argues that he should be excused from the exhaustion requirement because his termination was not a "grievable" claim under the CBA, the CBA's requirement that he file an individual grievance within three days of the union's decision not to represent him was unreasonable, and filing a grievance would have been futile. 1. Grant's termination claim was grieva-ble. Grant argues that the language of the CBA, together with the union's refusal to pursue his grievance, demonstrate that his termination was not grievable. Whether Grant had a grievable claim involves the proper interpretation of a contract provision and is therefore a matter of law. Grant's argument fails because his reading of one CBA provision makes another provision of the CBA a nullity. Grant interprets article 5, subsection 2(A) of the CBA to suggest that if the union declines to pursue an employee's grievance, it is not "grievable," and the grievance guidelines of the CBA do not attach. Article V, subsection 2(A) provides: A "grievance" is defined as any dispute between the Employer and an employee or the Association regarding the interpretation or violation of this Agreement which has not been resolved by prior submission of the problem through the chain of command, and which has been accepted as a grievance by the Executive Board of the Association. Grant contends that the clause "which has been accepted as a grievance by the Executive Board of the Association" means that unless a dispute is certified by the union it is not a "grievance." While the language of this subsection does suggest Grant's result when read in isolation, article 5, subsection 2(0) of the CBA suggests a different result: If the Association declines to pursue a termination grievance of a non-probationary employee and the employee still wishes to grieve the termination, he/she will notify the Chief and the Labor Relations Office, in writing, within three (8) days of receiving notification from the Association that it has declined to pursue the grievance. Upon receipt of the employee's request, the Labor Relations Officer shall select an arbitrator certified by the American Arbitration Association. The arbitrator shall hear and resolve the grievance as provided under subsections 5.2(I) through 5.2(M) above. Grant's reading of the last clause of subsection 2(A) renders all of subsection 2(0O) a nullity because in every case that the association declined to pursue an employee's termination grievance, it would not be a grievance permissible under the CBA. If this were the case, the terminated employee would always be excused from subsection 2(O)'s notice and arbitration provisions. Instead, the terminated employee would be free to immediately file a lawsuit regarding the termination. We have held that "[t]o the extent possible, all provisions in a contract should be found meaningful." Since subsection 2(0) would be meaningless under Grant's reading, the superior court correctly read the CBA as a whole to require Grant to file a grievance despite the union's refusal to file a grievance on his behalf. Since this issue is a question of law, the superior court was correct in granting APD summary judgment on this issue. 2. Grant may not challenge the CBA's three-day grievance filing period for individually-pursued claims because he did not file a grievance. Grant also argues that the factual issue of when the three-day notice period of article 5, subsection 2(0), ran was not resolved. But Grant never pursued a grievance; instead he filed suit. Therefore, the three-day deadline did not play a role in this case, and Grant may not challenge it because it did not adversely affect his rights. 3. Because the collective bargaining agreement provided a mechanism for Grant's grievance, futility did not excuse him from filing a grievance. Finally, Grant argues that attempting a grievance would have been futile. He cites Casey v. City of Fairbanks to support the proposition that the union's refusal to prosecute his grievance excuses his failure to file an individual grievance. However, Grant omits a crucial element of the Casey holding: that under the CBA in effect in Casey, the plaintiff had no other recourse if the union declined to pursue his grievance. Grant, by contrast, had a CBA that expressly allowed him to file a grievance if his union declined to represent him. Accordingly, the holding of Casey does not apply here, and the superior court properly refused to excuse Grant's failure to file a grievance. 4. Summary judgment was proper because employees whose contracts «re governed by a collective bargaining agreement must exhaust contractual remedies prior to filing suit. We have "consistently held that employees must first exhaust their contractual or administrative remedies, or show that they were excused from doing so, before pursuing a direct action against their employer." Accordingly, summary judgment was appropriate on Grant's claims because he was not excused from pursuing the available administrative redress. Our decision in Cosgen v. Municipality of Anchorage controls the analysis in this case: the facts are very similar, the relevant language of the CBA is identical, and the procedural history is the same. Cozzgen involved a wrongful termination suit filed by an APD officer who was terminated because he could no longer meet APD's minimum hearing standards for sworn officers. Interpreting the same language from the predecessor of the CBA governing this case, we affirmed the superior court's grant of summary judgment based on Cozzen's failure to exhaust his contractual remedies. Grant's claims rely on his contractual rights to employment. The CBA provides his rights and remedies. Because he fails to persuasively distinguish Coszen-instead relying on Beard v. Baum and Casey v. City of Fairbanks, which Cozzen specifically distinguishes -he cannot prevail. Accordingly, the superior court correctly granted summary judgment on Grant's contractual claims of breach of contract, wrongful termination, and violation of the covenant of good faith and fair dealing. B. The Doctrine of Collateral Estoppel Does Not Bar Grant's Disability Discrimination Claim Under AS 18.80.220(a)(1). Grant made an additional claim, under AS 18.80.220(a)(1), that APD unlawfully discriminated against him based on his disability. The superior court dismissed this claim on the grounds of collateral estoppel, ruling that Grant's assertion before the retirement board that he was occupationally disabled precluded him from claiming that he "can perform the duties of a sworn police officer." The trial court ruled that Grant could not show he was qualified to be a police officer as required by subsection .220(a)(1) and therefore he could not make out a prima facie case of disability discrimination. Grant now argues that the superior court erred in granting summary judgment on his discrimination claim because it improperly applied the doctrine of collateral estoppel. We hold that the doctrine of collateral estoppel does not bar Grant's disability discrimination claim under AS 18.80.220(2)(1). While at first blush it might appear that an employee who successfully argues that he is entitled to a disability retirement is estopped from later contending that he was able to perform the job's requirements and was discriminated against in his termination, a close examination of the doctrine of collateral es-toppel shows why it does not apply. Collateral estoppel requires an identity of issues between the two proceedings. In this case, the issues were not identical. To obtain disability retirement under AMC 03.85.120(A), Grant was required to establish that his injury prevented him from performing his assigned duties, which included arrests. APD insisted on assigning Grant to patrol work, which required him to make arrests. It terminated him because he was physically incapable of performing this assigned duty. In seeking retirement, Grant acknowledged (indeed, proved) that he could not make an arrest and conceded that this was an assigned duty. But he did not concede that he could not perform his job if APD made reasonable accommodations for his disability. We have previously held that "AS 18.80.220 imposes a duty on an employer to reasonably accommodate a disabled employee. Since the board only determined that arrests were assigned duties and did not need to consider whether Grant could perform his job if reasonable accommodations were made, that issue remained open for litigation. A recent decision of the United States Supreme Court, Cleveland v. Policy Management Systems Corporation, is particularly instructive on this point. In Cleveland, the Court considered the argument of an employee that her claim of discrimination under the Americans with Disabilities Act (ADA) should not be dismissed due to concessions that she had made in order to collect Social Security Disability Insurance (SSDI) benefits. A lower court had dismissed Cleveland's discrimination claim holding that her claim that she was "unable to do [her] previous work" and "cannot . engage in any other kind of substantial gainful work which exists in the national economy, as required to obtain SSDI benefits, estopped her from showing that she was a qualified person with a disability "who, with or without reasonable accommodation, can perform the essential functions of the employment position" in order to qualify under the ADA. The Supreme Court disagreed. The Court recognized that "an ADA suit claiming that the plaintiff can perform her job with reasonable accommodation may well prove consistent with an SSDI claim that the plaintiff could not perform her own job (or other jobs) without it. The Court ruled that it was therefore improper for the lower court to preclude the argument of discrimination or even to apply a "special negative presumption." However, the Court did note one limitation on this finding. The Court ruled that the "ADA plaintiff cannot simply ignore the apparent contradiction that arises out of the earlier . disability claim. Rather, she must proffer a sufficient explanation [in order to survive summary judgment]." Grant's case is very similar. In order to obtain occupational disability benefits under AMC 03.85.120(A), he was required to show that his injury prevented him from performing his assigned duties. The superi- or court ruled that this showing precluded his argument that he was discriminated against under AS 18.80.220, which prohibits discrimination on the basis of "physical or mental disability." This ruling overlooked our holding in Moody-Herrera that "AS 18.80.220 imposes a duty on an employer to reasonably accommodate a disabled employee." Whether Grant can perform his duties with reasonable accommodation for his disability remains an open question. As the Supreme Court noted in Cleveland, a claim that an employee can perform her job with accommodation may be consistent with the claim that she cannot perform her job without accommodations. Collateral estoppel does not bar Grant's discrimination claim. In addition, Grant does provide a sufficient explanation as to why his presentations to the retirement board do not contradict his claims of discrimination. Grant claims that the board, in finding that he could not perform his assigned duties, did not consider his claims that he could continue to serve in a different position or with some accommodation of his disability. Accordingly, we remand so that the superi- or court may consider Grant's claim that he was otherwise able to perform the "reasonable demands of the position" if reasonable accommodations are provided. C. The Superior Court Did Not Err in Granting Summary Judgment on Grant's Age Discrimination Claim. Grant's AS 18.80.220(a)(1) age discrimination claim lacks merit because he does not argue that APD discriminates against officers on the basis of age; rather, he argues that APD treats officers of similar age differently based on their seniority and rank. But there is no showing that different treatment based on seniority and rank constitutes discrimination. Grant even concedes that "[i]f a senior officer receives APD's administration's blessing, then they are placed into the detective division where they are not rotated out due to their years of experience." Thus, Grant's argument on this point is contradictory and insufficient to show age discrimination. Moreover, Grant fails to distinguish his age discrimination claim from his disability claim and provides no evidence that age was a factor in his termination. Accordingly, the trial court did not err in granting summary judgment on Grant's age-based AS 18.80.220(a)(1) claim. IV. CONCLUSION Because Grant failed to exhaust his administrative remedies and his age discrimination claim lacks merit, the superior court did not err in granting summary judgment against him. We therefore AFFIRM the judgment below on these claims. However, because it was error to apply the doctrine of collateral estoppel to Grant's disability discrimination claim, we REVERSE the entry of summary judgment and REMAND for further proceedings on that issue. . Cozzen v. Municipality of Anchorage, 907 P.2d 473, 475 (Alaska 1995) (citation omitted). . See id. (citation omitted). . See Leisnoi, Inc. v. Stratman, 956 P.2d 452, 454 (Alaska 1998). . Native Village of Eyak v. GC Contractors, 658 P.2d 756, 760 (Alaska 1983) (citations omitted). . "[NJot only should a collective bargaining agreement be read as a whole and in light of the law relating to it when made, the court must in interpreting it be particularly mindful that it does not lose sight of the broad contextual underpinnings which support the instrument." Juneau Educ. Ass'n v. City and Borough of Juneau, 539 P.2d 704, 710 (Alaska 1975) (Erwin, J., concurring) (citing Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 279, 76 S.Ct. 349, 100 L.Ed. 309 (1956). . 670 P.2d 1133 (Alaska 1983). . See id. at 1138. . Grant also cites Beard v. Baum, 796 P.2d 1344 (Alaska 1990), for the same proposition. Beard also involved a CBA that provided no other recourse to the union member when the union declined to pursue a grievance. See id. at 1349. Like Casey, it is therefore inapposite. . Cozzen, 907 P.2d at 475. . See id. at 474-76. . See id. at 474-75. . See id. at 475 & n. 6 (noting that it was not necessary to reach the issue of collateral estoppel because Cozzen's failure to exhaust available contractual remedies was dispositive). . 796 P.2d 1344 (Alaska 1990). . 670 P.2d 1133 (Alaska 1983). . See Cozzen, 907 P.2d at 476 ("Article [which is now 5.2(0)] provided Cozzen with a contractual remedy, not present in the Casey or Beard cases, which he failed to exhaust."). . Violation of the implied covenant of good faith and fair dealing is a breach of contract claim. See Knight v. American Guard & Alert, Inc., 714 P.2d 788, 791-92 (Alaska 1986) (holding that breach of the implied covenant of good faith and fair dealing expresses an enforceable breach of contract theory). As with other contractual claims under a CBA, a good faith and fair dealing claim must be pursued by grievance. . Alaska Statute 18.80.220(a)(1) provides: Except as provided in (c) of this section, it is unlawful for (1) an employer to refuse employment to a person, or to bar a person from employment, or to discriminate against a person in compensation or in a term, condition, or privilege of employment because of the person's . age, physical or mental disability . when the reasonable demands of the position do not require distinction on the basis of age, physical or mental disability.... . See State, Child Support Enforcement Div. v. Bromley, 987 P.2d 183, 192 (Alaska 1999) (quoting Jackinsky v. Jackinsky, 894 P.2d 650, 654 (Alaska 1995)). . Moody-Herrera v. State, Dep't of Natural Resources, 967 P.2d 79, 87 (Alaska 1998). . 526 U.S. 795, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999). . Id. at 807, 119 S.Ct. 1597. . 42 U.S.C. § 423(d)(2)(A). . 42 U.S.C.§ 12111(8). . See Cleveland, 526 U.S. at 799, 119 S.Ct. 1597. . Id. at 803, 119 S.Ct. 1597. . Id. at 802, 119 S.Ct. 1597. . Id. at 806, 119 S.Ct. 1597. . AS 18.80.220(a)(1). . 967 P.2d at 87. . See AS 18.80.220(a)(1).

11513543

STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION, Appellant, v. Sanda LEITCH, Appellee

State, Department of Revenue, Child Support Enforcement Division v. Leitch

2000-04-14

No. S-8680

782

786

999 P.2d 782

999

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:43:19.422880+00:00

CAP

Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.

STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION, Appellant, v. Sanda LEITCH, Appellee.

STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION, Appellant, v. Sanda LEITCH, Appellee. No. S-8680. Supreme Court of Alaska. April 14, 2000. Diane L. Wendlandt, Assistant Attorney General, Anchorage, Bruce M. Botelho, Attorney General, Juneau, for Appellant. No appearance by Appellee. Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.

2331

14410

OPINION MATTHEWS, Chief Justice. I. INTRODUCTION The question in this case is whether the Child Support Enforcement Division may seek prospective modification of a child support order where a de facto change of custody has occurred. The superior court ruled that CSED lacked statutory authority to do so. We conclude that such authority exists and therefore reverse. II. FACTS AND PROCEEDINGS Thomas McKinnon and Sanda Leitch are parents of a minor child. In March 1993 the superior court found that Sanda had primary physical custody of the child and ordered Thomas to pay child support. Notwithstanding the order, Thomas assumed physical custody of the child for various periods and received public assistance on behalf of the child during these periods. The Child Support Enforcement Division (CSED) moved for interim modification of the child support order in order to facilitate recovery of future payments from Sanda. CSED did not seek a change of custody but asked for $50 per month from Sanda "while the child receives public assistance" with Thomas. The superior court denied CSED's motion, concluding that CSED lacked the statutory authority to seek modification against an obligee under an existing support order. CSED has appealed. III. DISCUSSION A. Standard of Review Because the question of whether the trial court properly denied CSED's motion for modification turns on statutory interpretation, we review the issue de novo. In interpreting a statute, we will adopt the rule of law "most persuasive in light of precedent, reason and policy." B. Does AS 25.27.0i5 Authorize CSED's Motion for Modification? The superior court denied CSED's motion to modify the order on the ground that the agency could only act on its own if the "ob-ligor" were liable to the state for public assistance reimbursement. Since under the existing order Thomas — not Sanda — is the obligor, the court concluded that CSED lacked the statutory authority to seek modification. Alaska Statute 25.27.045 provides in relevant part: The agency may appear in an -action seeking an award of support on behalf of a child owed a duty of support -... and may also appear in an action seeking modification of a support, order, decree or judgment already entered. Action under this section may be undertaken upon application of an obligee, or at the agency's own discretion if the obligor is liable to the state under AS 25.27.120(a) or (b). CSED contends that the term "obligor" in. AS 25.27.045 includes "any noncustodial parent potentially liable to the state." CSED argues that the superior'court's ruling leaves CSED powerless to obtain public assistance reimbursement from a noncustodial parent where the parents have switched custody without modifying a governing child support order. This result, argues CSED, conflicts with CSED's rights as an assignee of a public assistance applicant "to accrued and continuing child support." We substantially agree with CSED's position. It is consistent with the statutory definition of "obligor" as "a person owing a duty of support." A "duty of support," in turn, "includes a duty of support imposed or imposable by law, [or] by a court order. . ." Thus, the term "obligor" is not limited to those parents subject to an existing court order but also includes parents owing a duty imposable by a court order. Sanda potentially falls within this description. Whether a duty of support will actually be imposed on her can only be determined after she has an opportunity to be heard on the merits of CSED's claim. Since actual imposition can only occur after proceedings on the merits, potential imposition is all that can be required when determining CSED's authority to bring a modification proceeding. Thus, CSED'was authorized under section .045 to initiate this modification proceeding at its "own discretion." Our conclusion on this point is also consistent with the statutory system under which CSED operates. CSED has the authority to collect from noncustodial parents reimbursement of public assistance paid for children. It is the assignee of "all rights to accrued and continuing child support" of public assistance applicants; it is the subrogee "to the rights of the obligee" and, as such, may seek and enforce orders of support; and it has a direct independent claim against obligors for reimbursement. CSED also has extraordinary powers to collect public assistance reimbursement, including lien rights against "all real and personal property" of a debtor, the right to proceed against a debtor's occupational and driver's licenses, and the right to order third parties to withhold and deliver a debtor's property under their control. In view of this broad authority and power, we do not believe that the legislature intended to bar CSED from seeking modifications of child support orders in cases of de facto custody changes. Unless CSED can seek modification in such cases, there is a good chance that no one will do so. Without modification, there can be no collection of public assistance reimbursement. The obligee under the order (here Sanda) has no incentive to seek modification, since she will be liable after the modification. The obligor under the order (here Thomas) may lack the incentive to seek modification because he is receiving public assistance and payments received after the modification will be applied first to reimburse CSED. We conclude, based both on the statutory definition of the relevant terms and on inferences drawn from the statutory structure, that CSED has the authority to seek the modification of support orders in cases of de facto custodial change. In its ruling, the trial court understandably relied on Hendren v. State, Department of Revenue. Like the present case, Hendren involved a de facto change of custody and an order requiring the original noncustodial parent to pay child support. We held that CSED could not obtain reimbursement from the obligee under the child support order for public assistance already paid. There were two main reasons for this conclusion. First, "[t]he term 'obligor' in AS 25.27.120(a) refers to the parent who is required to pay child support under a court order." Second, what CSED sought "constitutes a[n] [impermissible] retroactive modification of the original order." We believe that Hendren was correctly decided based on the second reason. The first reason was correct as to one usage of the term "obligor" in subsection .120(a), but we were mistaken in applying it to all usages of the term. In Hendren, CSED sought reimbursement under AS 25.27.120(a) which provides in relevant part: An obligor is liable to the state in the amount of assistance granted under AS 47.07 and AS 47.27 to a child to whom the obligor owes a duty of support except that, if a support order has been entered, the liability of the obligor for assistance granted under AS 47.25.310-47.25.420 may not exceed the amount of support provided for in the support order.... CSED argued that the obligee under the order could also be the "obligor" as that term is used in subsection .120(a) based on the general definition of "obligor" set out in section .900 ("a person owing a duty of support"). We rejected this argument based on the language of subsection .120(a), which "limits the obligor's liability to the amount of support required by the support order." The term "obligor" used in the liability limiting clause of subsection .120(a) necessarily refers to "the parent who has been ordered to pay child support." Only an existing order can provide a basis for this limitation. But the other usages of "obligor" in subsection .120(a) are not tied to an existing order. We erred in concluding that this narrow meaning also applies outside the context of the liability limiting clause. Except where the context requires otherwise, we believe that "obligor" should be understood in the broader sense of the statutory definition. Nothing in section .045 requires deviation from the statutory definition. Our discussion of the second ground in Hendren supports our decision in this case. We made it clear that our decision was limited to efforts of CSED to retroactively modify existing support orders. We encouraged CSED to seek prospective modification of the support order there in question: Because the . order has never been modified, requiring [the obligee under the original order] to reimburse CSED for past assistance constitutes a [prohibited] retroactive modification of the original order. Although CSED can seek modification of existing support orders under AS 25.27.04.5, the statutory scheme permits retroactive modification only in limited circumstances. [No such circumstances were found to exist.] In seeking a modification in this case, CSED is doing no more than what this portion of our discussion in Hendren indicated it could do. IV. CONCLUSION We REVERSE the superior court's ruling and REMAND for further proceedings consistent with this opinion. . See Hendren v. State, Dep't of Revenue, 957 P.2d 1350, 1351 (Alaska 1998). . Id. . AS 47.27.040. . AS 25.27.900(9). . AS 25.27.900(5). . See AS 25.27.140(a). . AS 47.27.040(a). . See AS 25.27.130(a). . See AS 25.27.120(a); see also State, Dep't of Revenue v. Green, 983 P.2d 1249, 1253 (Alaska 1999) ("An independent right of recovery is created by AS 25.27.120(a)."). . AS 25.27.230. . See AS 25.27.244, .246. . See AS 25.27.250. . 957 P.2d 1350 (Alaska 1998). . See id. at 1351. . See id. . Id. at 1353. . Id. at 1352. . See id. at 1351-52. . Id. at 1352. . Id. at 1352. . See id. 22. Id. (emphasis added).

11510744

Donald L. CASTLE, Appellant, v. STATE of Alaska, Appellee

Castle v. State

2000-05-05

No. A-7093

169

179

999 P.2d 169

999

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:43:19.422880+00:00

CAP

Before COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

Donald L. CASTLE, Appellant, v. STATE of Alaska, Appellee.

Donald L. CASTLE, Appellant, v. STATE of Alaska, Appellee. No. A-7093. Court of Appeals of Alaska. May 5, 2000. Rehearing Denied May 31, 2000. Marcia E. Holland, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for Appellant. W.H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

5890

35575

OPINION MANNHEIMER, Judge. On December 4, 1997, at approximately 3:30 in the morning, Fairbanks Police Officer Gary A. Yamamoto stopped a vehicle because one of its headlights was out. Donald L. Castle was a passenger in this car. Officer Yamamoto questioned the driver, Michael Browning, and found out that Browning's driver's license was revoked. As Yamamoto was taking Browning into custody, Castle got out of the car and announced that he wanted to leave. Yamamoto directed Castle to get back in the car and stay there until the officer could interview him. Yama-moto then escorted Browning back to his patrol car. While Yamamoto's attention was focused on the driver, Castle walked away from the scene. After securing Browning in his patrol car, Yamamoto began driving through the neighborhood, searching for Castle. Yamamoto discovered Castle walking along the street, on the sidewalk. The officer pulled his patrol car alongside Castle and stated, "Sir, I need to talk to you for just a-moment." At that point, Castle started running. Castlé left the sidewalk and ran into the middle of the street, right in front of Yamamoto's patrol car. Yamamoto turned on his overhead lights and gave chase. Yamamoto followed Castle for approximately three blocks. Observing that Castle was beginning to tire, the officer pulled up next to Castle, rolled down his window, and gave Castle a push into the snowbank on the side of the road. Yamamoto then got out of his patrol car and chased Castle on foot. When the officer caught Castle, the two men grappled for a few minutes, but Castle eventually submitted. Yamamoto handcuffed Castle and patted him down for weapons. Although he found no weapons, Yamamoto carried Castle back to the patrol car and searched him again for drugs. This search yielded several small plastic bags with white powder residue in them; this residue field-tested positive for cocaine. Yamamoto then arrested Castle. Castle subsequently pleaded no contest to fourth-degree misconduct involving controlled substances , reserving his right to contest the legality of the stop that led to the discovery of the cocaine. On appeal, Castle renews his challenge to the legality of the stop, but he also disputes the intensity of the search that followed the stop. He points out that, during an investigative stop, an officer may engage in only a limited body search: a pat-down for weapons. Castle argues that even if Yamamoto was justified in making the stop, the officer nevertheless exceeded his authority when he searched Castle for drugs after the weapons pat-down yielded nothing. This second argument concerning the intensity of the search is' raised for the first time on appeal; Castle did not present it to the superior court. Accordingly, we decline to address it. We turn, instead, to the issue that Castle did preserve: the legality of the stop. "[Wlhenever a police officer accosts an individual and restrains his freedom to walk away, [the officer] has 'seized' that person" for purposes of the Fourth Amendment. Moreover, a police officer's conduct may be deemed a "restraint" of a citizen's freedom even when the officer does not use force. "[T]he question of whether an investigative stop occurred [hinges on whether] the challenged police conduct would lead a reasonable person to believe that the person was not free to leave." Because the average person often feels "an obligation to respond to -[police] questions and not to walk away", a seizure occurs only when the police officer "add[s] to these inherent pressures by engaging in conduct which a reasonable [person] would view as threatening or offensive even if coming from another private citizen." For Fourth Amendment purposes, a seizure occurs whenever a police officer engages in "a show of official authority such that a reasonable person would have believed that he [or she] was not free to leave." The Alaska Supreme Court uses this same test when determining whether a seizure has occurred for purposes of the search and seizure clause of the Alaska Constitution (Article I, Section 14). Under this test, when a police officer instructs a person to sit in a patrol car, the officer "seizes" the person. That is what happened in Castle's case. When Castle announced that he intended to leave the scene, Officer Yamamoto responded by telling Castle to "hold on", to "have a seat in the car", and to wait there until the officer returned. We believe that a reasonable person in Castle's position would have interpreted this exchange as an exercise of authority — a directive to remain where he was until the officer allowed him to depart. In his dissent, Judge Coats suggests that Yamamoto's response to Castle was only a request, not a command. He points out that, according to Yamamoto's testimony, his exact words to Castle were: "Why don't you have a seat in the car. I'll be right back with you." Judge Coats concludes that, given Yama-moto's phrasing, a reasonable person in Castle's position would not have believed that Yamomoto was ordering him to stay, but only asking him to stay — a request that Castle was free to honor or decline. Given the circumstances in which Yama-moto and Castle exchanged these words, Judge Coats's interpretation of their conversation appears overly generous to the State. But even if we assume that Yamamoto's first words to Castle might reasonably be construed as a request rather than an order, there was no mistaking the tenor of Yama-moto's second colloquy with Castle. After Castle declined Yamamoto's "request" and walked away from the scene of the traffic stop, Yamamoto refused to accept Castle's decision. The officer hunted Castle through the neighboring streets, then pulled alongside Castle in his patrol car and told him, "I need to talk to you for just a moment." At this juncture (if not before), a reasonable person in Castle's position would believe that the officer was ordering him to stop and submit to questioning. At that point, a seizure occurred — or, more precisely, a seizure would have occurred had Castle followed the officer's instruction. As it happened, Castle ignored the officer's order. The actual seizure occurred a few moments later when Yamamoto chased after Castle, blocked his path with the patrol vehicle, and wrestled him to the ground. The State offers three rationales to support this seizure. First, the State argues that Castle was a witness to Browning's crime of driving with a revoked license. Second, the State argues that Castle's sudden exit from the car caused Yamamoto to reasonably fear that Castle might assault him. And third, the State argues that Castle himself committed a crime by running into the middle of the street. We discuss these three rationales in turn. But before we begin those discussions, it is important to note an argument that the State has not raised. The United States Supreme Court has ruled that, in the interest of officer safety, police officers making a traffic stop have the authority to order the driver and the passengers out of the car, even when there is no articulable reason to fear that these people might assault - the officer. Castle's case potentially raises a related but different issue: during a routine traffic stop, when there are no circumstances that would justify an investigative stop of the passenger, does a police officer nevertheless have the authority to order a passenger to remain in the car and not leave the scene? The United States Supreme Court has expressly refrained from deciding this issue. We note that the Washington Supreme Court and the Maryland Court of Appeals have ruled that police officers do not possess such authority. On the other hand, the Supreme Court of Illinois has ruled that police officers do have this authority, at least when the passenger engages in sudden movement that arouses a justified fear for the officer's safety. In the present case, the State does not argue that police officers have a general authority to detain passengers at the scene of a routine traffic stop. The. State does argue that Castle's actions at the scene of the traffic stop raised a reasonable fear for Officer Yamamoto's safety, but, as explained below, the record does not support the State's assertion. Therefore, like 'the United States Supreme Court, we expressly do not decide the question of a police officer's authority to detain passengers at the scene of a routine traffic stop for no reason other than their presence as passengers in the car. The State's argument that Yamamoto could stop Castle because Castle was a witness to a crime The State contends that Officer Yamamoto was authorized to stop Castle because the officer knew that Castle was a witness to a Crime — Browning's crime of driving with a revoked license. In Metzker v. State and in Beauvois v. State , this court recognized the authority of the police to "approach and stop a person for the purpose of investigating a crime even though the officer has no reason tó believe that the person stopped has committed the crime which is being investigated." However, the police are justified in stopping witnesses "only where exigent circumstances aré present". The facts of Beauvois provide an illustration of the exigency required to support an investigative stop of a witness. In Beauvois, the police officer knew that a robbery had just occurred in the vicinity of a campground and that the robber had fled on foot toward the campground: The time was three o'clock in the morning, when most people are asleep. The streets leading to the campground were deserted. [The officer] saw only one vehicle moving: the Corvette leaving the campground. It was reasonable to suspect that the occupants of the Coryette had been awake in the campground when the robber came through, and that they might have seen something. Under these circumstances, and especially given the recency and the seriousness of the crime, prompt investigative efforts were justified. Even though [the officer] had no other information to link the Corvette or its occupants to the robbery, he could validly stop the car and ask its occupants if they knew anything or had seen anything that might aid [the officer's investigation of the crime that had just been committed. Beauvois, 837 P.2d at 1121. Similarly, in Metzker we held that the police were justified in. stopping a motor vehicle because a passenger in that vehicle was thought to be an assault victim who had just fled the police, who was intoxicated, and who was possibly in need of medical treatment. Comparing the facts of Castle's case to the facts of Beauvois and Metzker, it is clear that no exigency supported the officer's decision to detain Castle as a witness to a crime. True, Castle was a witness to the fact that Browning had been driving a car, but Browning's crime was over. Yamamoto was not investigating an ongoing or recently committed unsolved crime, as was true in Beauvois. Moreover, Yamamoto had personally observed the offense, had apprehended the perpetrator, and had taken him into custody. Yamamoto had no reason to believe that Castle possessed knowledge that would materially aid the investigation of Browning's offense. Nor was Yamamoto acting to ensure the health or safety of a crime victim, as was true in Metzker. For these reasons, we conclude that Yama-moto's seizure of Castle can not be justified under the theory that Castle was a witness to a crime. The State's argument that Yamamoto could stop Castle because Castle's sudden exit from the vehicle caused Yamamoto to reasonably fear that Castle might assault him The State argues that Castle's sudden exit from Browning's vehicle caused Officer Yamamoto to reasonably fear that Castle might assault him. This fear, the State contends, justified Yamamoto in ordering Castle to remain at the scene and, when Castle disobeyed this order, it justified Yamamoto's decision to conduct an investigative stop to determine whether Castle was carrying any weapons. We can imagine circumstances in which a passenger's sudden movements might raise a reasonable fear of imminent assault, thus justifying an officer in frisking the passenger or in ordering the passenger to remain where the officer can observe and control them. But when Castle's suppression motion was litigated in the superior court, the State did not suggest this as a justification for the investigative stop. Moreover, the record fails to support the State's assertion that Castle's actions raised a reasonable fear of imminent assault. In the superior court, Castle's suppression motion was litigated on the pleadings; the State did not ask for an evidentiary hearing. But even judging events from the description in the State's own memorandum, the record fails to suggest that Castle's actions caused Yamamoto to fear for his safety: As [Officer] Yamamoto was taking Browning back to the patrol car after arresting Browning, Castle got out of [Browning's car] and came to the rear of it[,] where he stated, "I need to leave." Officer Yamamoto told him to hold on just a moment. He asked Castle to have a seat in [Browning's car] and told him that he would be right back with [him]. According to the State's trial court memorandum, Officer Yamamoto then turned his attention back to Browning. Yamamoto escorted Browning to the patrol car, placed him inside, and then "went back to contact Castle". Only then did Yamamoto realize that Castle had departed. The State's description of events — which tracks Officer Yamamoto's testimony at the grand jury — does not suggest that Castle posed any danger to Yamamoto, nor does it suggest that Yamamoto apprehended any danger from Castle. In short, there is nothing in the record to support the State's current assertion that Yamamoto's actions were justified by concerns for officer safety. Moreover, it must be remembered that Castle did in fact leave the scene of the traffic stop. Castle was apparently trying to put as much distance as possible between himself and the officer; the seizure occurred only after Yamamoto tracked Castle down and forcibly stopped him. By that time, any potential argument based on officer safety had lost all its force. It was Yamamoto's choice to initiate the second encounter with Castle. The State can not justify Yama-moto's seizure of Castle by arguing that Castle might have represented a potential danger to Yamamoto if both men had remained at the scene of the traffic stop. The State's argument that Yamamoto could stop Castle because Castle violated municipal law by running in the middle of the street Finally, the State argues that Yama-moto was justified in stopping Castle because Castle violated a Fairbanks municipal ordinance when he ran in the middle of the street. Fairbanks General Code § 78-241 incorporates various portions of the State's highway regulations. One of these state regulations, 13 AAC 22.175(a)' — (b), requires pedestrians walking along roadways to use a sidewalk if practicable or, if no practicable sidewalk is available, to walk on the shoulder of the road or, if there is no shoulder, to walk as near as practicable to the outside edge of the' road. The State argues that Castle violated this regulation, and thus the corresponding municipal ordinance, when he ran in the middle of the street to escape Officer Yamamoto. According to the State, Castle's commission of this offense gave Yamamoto probable cause to arrest Castle, even if Yamamoto had had no justification for stopping Castle before that time. , As we explained above, when Yamamoto commanded Castle to stay in the car and not to leave the scene of the traffic stop, this amounted to a sufficient show of authority to be deemed a "seizure". And because we have rejected the State's proffered justifications for this seizure, we conclude that Yama-moto exceeded his authority when he ordered Castle to remain at the scene. When Yama-moto later located Castle and again directed him to stop and submit to questioning, the officer still had no justification for this renewed attempt to seize Castle. And it was Yamamoto's renewed attempt to seize Castle that prompted Castle to run into the street in an attempt to escape the officer. Thus, to evaluate the State's argument, we must examine and clarify a particular aspect of the exclusionary rule: When the police violate the Fourth Amendment by unlawfully seizing or unlawfully attempting to seize a person, and the person responds by committing a crime, may the person be prosecuted for this crime notwithstanding the prior illegality? Or is the crime to be deemed a "fruit" of the police illegality, so that evidence of this crime must be .suppressed? This issue is discussed by Professors La-Fave, Israel, and King in their treatise on criminal procedure. According to LaFave, courts consistently uphold the admissibility of evidence of an attempted bribe or a physical attack on the officer making the illegal seizure. Courts often reach this result by asserting that a bribe or a physical attack is "sufficiently [a product] of free will to purge the taint" of the prior illegality. But LaFave describes this rationale as "not particularly satisfying, for it might be asked why the bribe offer is any more an act of free will than an incriminating admission or [an] attempt to dispose of the evidence, neither of which is per se untainted". Instead, according to LaFave, "the answer [lies] in the underlying deterrent purpose of the exclusionary rule": Incriminating admissions and attempts to dispose of incriminating objects are common and predictable consequences of illegal arrests and searches, and thus to admit such evidence would encourage such Fourth Amendment violations in future cases. Bribery attempts [and physical attacks], by comparison, are so infrequent and unpredictable that admission of evidence of such criminal activity . is not likely to encourage future illegal arrests and searches [.] LaFave, § 9.4(f), Vol. 3, pp. 380-81. This court relied on this discussion (from the first edition of the LaFave textbook) in Napageak v. State. , Napageak was charged with third-degree assault after he used a whale gun to threaten a police officer who entered his home illegally but peaceably. He argued that all evidence of this assault should be suppressed because the assault was a fruit of the officer's illegal entry. But this court rejected Napageak's argument and affirmed his conviction, quoting LaFave and noting that this .result "finds support in virtually every decision discussing the issue". The law has not changed in the intervening fifteen years. But, as the quoted passage from LaFave suggests, the policy behind the exclusionary rule may call for a different result when the defendant's crime is a predictable result of the police illegality. The following three cases illustrate this principle. In State v. Alexander , the defendant failed to stop at a police roadblock set up to catch drunk drivers. A police officer gave chase, pulled Alexander over, and determined that he was driving under the influence of intoxicants. Alexander argued that the roadblock was illegal and that all evidence resulting from his failure to stop at the roadblock should be suppressed. The lower court agreed with Alexander that the roadblock, as conducted by the police, had been illegal. But under Vermont law, it is a crime to fail to stop when signaled to do so by an identified police officer. Because Alexander violated this law, the lower court upheld the police officer's stop of Alexander's car and the admissibility of the resulting evidence of his intoxication. The Vermont Supreme Court acknowledged the cases holding that defendants are not entitled to suppression of evidence that they engaged in assaults or other life-threatening behavior {e.g., embarking on a high-speed chase) in response to an illegal search or seizure. But the court concluded that if failing to stop at the direction of a police officer "[were] to be treated as a 'distinct' crime, . the goal of the exclusionary rale, controlling police misconduct, [would] not be served." If a person who attempted to avoid an unlawful roadblock had no recourse to the exclusionary rale, then [p]olice could be less fastidious in establishing roadblocks or could even make random stops of drivers on less than probable cause, and when drivers failed, for whatever reason, to stop, any evidence gathered at the illegal stop could not be suppressed. The exclusionary rale requires more, and the state cannot pass a statute that effectively eviscerates a constitutional doctrine by "curing" an illegal police action. Alexander, 595 A.2d at 285. In People v. Felton , a police officer tried to illegally restrain the defendant as he walked along the street. When Felton started to run away, the police officer grabbed his arm. In response, Felton struck the police officer in the face and again tried to get away. He was quickly subdued and arrested. During the ensuing search of Felton's person, the police found several packets of cocaine, and he was charged with possession of cocaine, resisting arrest, and assault. The New York Court of Appeals held that Felton was entitled to suppression of the evidence against him. The court upheld the lower court's finding that Felton's action in striking the officer was "immediate, spontaneous, and proportionate to the officer's [unlawful] attempt to lay hands on him[.]" Thus, according to the New York high court, the taint of the officer's initial illegal attempt to restrain Felton earned over to Felton's ultimate arrest and the subsequent seizure of contraband from his person. The New York Court of Appeals reached a similar result in People v. Cantor, Cantor was returning home at 3 o'clock in the morning when he was surrounded by three plainclothes police officers who did not identify themselves. Cantor drew a pistol and pointed it at the officers, but he put the weapon away when one of the officers showed his badge. It turned out that the police did not have sufficient justification for stopping Cantor, but it also turned out that Cantor did not have a permit for his handgun,. so he. was-charged with a violation of the New York firearms laws. Cantor argued that, because the police had had no reason to stop him, the court should suppress all evidence relating to his possession of the handgun. The Court of Appeals agreed. Implicitly adopting the view that Cantor had acted reasonably- — and therefore had committed no assault — when he pulled his gun on the three unidentified men who surrounded him in the middle of the night, the court ruled that all evidence stemming from the illegal investigative stop should be suppressed. Although we have discussed Alexander, Felton, and Cantor in some detail, we do npt necessarily endorse the results in those cases. To a large extent, the proper result in a particular case will.depend upon the facts of that case. But we do endorse the principle espoused by LaFave and employed by the courts in Alexander, Felton,' and Cantor. When a defendant commits a crime in response to an illegal search or seizure, the policy of the exclusionary rule — society's interest in deterring police misconduct — must govern any decision whether to admit or suppress evidence of the defendant's crime. As this court held in Napageak, the exclusionary rule does not bar evidence of the defendant's responsive crime when that crime is an assault on an officer making a peaceable, albeit unlawful, entry! But the facts of Castle's case are considerably different. Castle did not attack Officer Yama-moto. Rather, he ran down the middle of the street at 3:30 in the morning in an attempt to get away from the officer. • - One of the major aims of the exclusionary-rule is to deter the police from engaging in the' unlawful detention or restraint of our citizens. Society's interest in deterring unlawful arrests and investigative stops would be ill-served if the police could unlawfully seize (or try to seize) someone, only to later justify themselves by proving that the victim of this unlawful seizure ran into the street, or crossed against a red light, or jaywalked, or trespassed by running across municipal park land when it was closed, or littered by throwing contraband to the ground. In such instances, "[the] defensive action by the victim can fairly be characterized as having been brought about by exploitation [of the illegal conduct]." This being so, courts should apply the exclusionary rule to deter the police from future similar misconduct. In Castle's case, we conclude that even if Castle broke the law by running into the middle of the street, his conduct was the direct result of Officer Yamamoto's unjustified attempt to seize him. We further conclude that the policy of the exclusionary rule would be undermined if we allowed Castle's conduct to form the justification for his ensuing arrest and the search of his person. Conclusion The record does not support the State's arguments that Castle could be temporarily detained at the scene of the traffic stop, either because he was a witness to a crime or because he posed á potential threat to officer safety. And we hold, as a matter of law, that Castle's act of running into the street, in apparent violation of state arid municipal law, cari not form the justification for his arrest and the search of his person. Accordingly, the cocaine found on Castle's person must be suppressed. When Castle entered his no contest plea, the State conceded that it had no case if this evidence was suppressed. The judgement of the superior court is therefore REVERSED. . AS 11.71.040(a). . See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974). . See Gray v. State, 798 P.2d 346, 350 (Alaska App.1990). . See Moreau v. State, 588 P.2d 275, 279-280 (Alaska 1978) (barring egregious circumstances, search and seizure violations can not be raised on appeal if they were not raised in the trial court). . Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968). . Ozhuwan v. State, 786 P.2d 918, 920 (Alaska App.1990). . Waring v. State, 670 P.2d 357, 364 (Alaska 1983) (quoting Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (1978), § 9.2, Vol. 3, pp. 53-54). . Rogers-Dwight v. State, 899 P.2d 1389, 1390 (Alaska App. 1995) (quoting Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983)). . Waring, 670 P.2d at 364. . See id. . See Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (authority to order passengers out of the car); Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (authority to order the driver out of the car). . See Maryland v. Wilson, 519 U.S. at 415 n. 3, 117 S.Ct. at 886 n. 3. . See State v. Mendez, 137 Wash.2d 208, 970 P.2d 722 (1999) (decided under the state constitution); Dennis v. State, 345 Md. 649, 693 A.2d. 1150 (1997) (decided under the federal constitution). . See People v. Gonzalez, 184 Ill.2d 402, 235 IlI.Dec. 26, 704 N.E.2d 375 (1998). . 797 P.2d 1219 (Alaska App.1990). . 837 P.2d 1118 (Alaska App.1992). . Metzker, 797 P.2d at 1221 (citation omitted). . Id. (listing cases). . See Metzker, 797 P.2d at 1220-21. . See Model Code of Pre-Arraignment Procedure (1975), § 110.2(l)(b). The text of this model code provision is quoted and approved in Wayne R. LaFave, Search and Seizure (3rd ed.1996), § 9.2(b), Vol. 4, p. 24. . Wayne R. LaFave, Jerold H. Israel, and Nancy J. King, Criminal Procedure (2nd ed.1999), § 9.4(f), Vol. 3, pp. 380-81. . See id. . Id. . 729 P.2d 893 (Alaska App.1986). . Napageak, 729 P.2d at 894. . Napageak, 729 P.2d at 895 n. 2. . See, e.g., Jurco v. State, 825 P.2d 909, 914 (Alaska App. 1992) (a person is not allowed to forcibly resist officers who have come to seize property under a judicial decree, and the person can be prosecuted for crimes arising from their use of force). . 157 Vt. 60, 595 A.2d 282 (1991). . Alexander, 595 A.2d at 283. . Alexander, 595 A.2d at 284. . Alexander, 595 A.2d at 285. . Id. . 78 N.Y.2d 1063, 576 N.Y.S.2d 89, 581 N.E.2d 1344 (1991) . Felton, 576 N.Y.S.2d 89, 581 N.E.2d at 1344-45. . Felton, 576 N.Y.S.2d 89, 581 N.E.2d at 1345. . See id. . 36 N.Y.2d 106, 365 N.Y.S.2d 509, 324 N.E.2d 872 (1975). . Cantor, 365 N.Y.S.2d 509, 324 N.E.2d at 875. . Cantor, 365 N.Y.S.2d 509, 324 N.E.2d at 878. . LaFave, Criminal Procedure, supra, note 21, p. 381.

11513380

David M. ODOM, M.D., Appellant, v. Hoi P. LEE, M.D., Steve E. Mancill, M.D., Jerry A. Perisho, M.D., Randall K. McGregor, M.D., Lawrence W. Stinson, Jr., M.D., Appellees

Odom v. Lee

2000-03-17

No. S-7547

755

764

999 P.2d 755

999

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:43:19.422880+00:00

CAP

Before COMPTON, Chief Justice, MATTHEWS, FABE, and BRYNER, Justices.

David M. ODOM, M.D., Appellant, v. Hoi P. LEE, M.D., Steve E. Mancill, M.D., Jerry A. Perisho, M.D., Randall K. McGregor, M.D., Lawrence W. Stinson, Jr., M.D., Appellees.

David M. ODOM, M.D., Appellant, v. Hoi P. LEE, M.D., Steve E. Mancill, M.D., Jerry A. Perisho, M.D., Randall K. McGregor, M.D., Lawrence W. Stinson, Jr., M.D., Appellees. No. S-7547. Supreme Court of Alaska. March 17, 2000. David M. Odom, M.D., pro se, Fairbanks. Ronald L. Bliss, Bliss & Wilkens, Anchorage, for Appellees. Before COMPTON, Chief Justice, MATTHEWS, FABE, and BRYNER, Justices.

5430

33454

OPINION COMPTON, Chief Justice. 1. INTRODUCTION Dr. David M. Odom and four other doctors (Defendant doctors) were parties to a contract for sharing an anesthesiology practice at Fairbanks Memorial Hospital. Following a dispute with the Defendant doctors, Dr. Odom filed suit alleging damages for breach of contract, tortious interference with a contract right, conspiracy to restrain trade, and unfair trade practices. Dr. Odom appeals pro se from the denial of his motions for continuance and to amend pleadings, and from the grant of summary judgment in favor of the Defendant doctors on all issues. We reverse the summary judgment and remand for a jury trial. II. FACTS AND PROCEEDINGS The parties to this litigation are all licensed physicians specializing in anesthesiology. They hold staff privileges at Fairbanks Memorial Hospital (FMH). They began sharing the anesthesia practice at FMH in 1989. The doctors had a contract among themselves, titled "Anesthesia Coverage Rules and Regulations" (Rotation Agreement). This contract stated each doctor's responsibility to the others in fulfilling their agreement with FMH. The agreement between the doctors collectively and FMH was titled "Fairbanks Memorial Hospital Anesthesiologist Agreement." In it the doctors are denominated the Anesthesia Staff. This, agreement incorporated the terms of the Rotation Agreement. Under this agreement, "[additional anesthesia services added or staffing requirement changes due to increased rooms, services, etc. shall be by Joint Collaboration with the anesthesia staff." Additionally, FMH agreed that it would "not solicit or recruit for the provision of anesthesia services during the period of this Agreement without first notifying the Anesthesia Staff." The five doctors would provide twenty-four-hour-a-day anesthesia coverage to FMH. Each doctor also had a separate contract with FMH that allowed the doctor to practice medicine at FMH. Two of the doctors, Hoi P. Lee and Randall K. McGregor, had practiced anesthesiology in Fairbanks before the formation of the Rotation Agreement with the other doctors. They owned Anesthesia Associates, Inc. This corporation employed a staff of Certified Registered Nurse Anesthetists (CRNAs), who assisted the doctors in the operating room. The Rotation Agreement set up a detailed rotation schedule among the doctors, and among the CRNAs, and provided for modification of the schedule. It also provided that if the doctors could not agree on a modification, the doctor wanting unscheduled time off was responsible for providing coverage during his absence. The doctors followed this procedure for approximately five years. The rotation schedule required the doctor in the "number one" position to supervise two operating rooms, each staffed by a CRNA. The second, third, and fourth doctors in the rotation each worked in one operating room with no CRNA, and the fifth doctor was off-duty. This controversy had its genesis in CRNA Kay Wilson's refusal to follow Dr. Odom's instructions during a certain type of procedure. After the third incident with CRNA Wilson, Dr. Odom approached Dr. Lee about the problem. He got no definitive response from Dr. Lee. The.specific precipitating event occurred on October 4, 1993, when Dr. Odom was choosing rooms for the following day. He realized he would be in the number one position on the rotation. He intended to use the procedure CRNA Wilson had refused to help with in the past; CRNA Wilson was assigned to work with Dr. Odom that day. Dr. Odom advised the surgical secretary that he would take only one operating room the following day, and that the second room and the CRNAs should be assigned to the number two doctor. Following this incident, the Defendant doctors sent a memo to the FMH Chief of Staff about the incident involving Dr. Odom. The same day, the, FMH Chief of Staff suspended Dr. Odom's staff privileges for twenty-four hours. The Defendant doctors also met and decided to revoke their contract with Dr. Odom. They notified Dr. Odom that they would exclude him from their new contract. After FMH reinstated his staff privileges the following day, Dr. Odom could perform services at FMH only at the request of a patient or a particular physician. He no longer received a share of the general anesthesiology practice at FMH. Dr. Odom filed suit alleging damages for breach of contract, tortious interference with a contract right, conspiracy to restrain trade, and unfair trade practices. The Defendant doctors accepted Dr. Odom back into the rotation approximately two months after the incident with CRNA Wilson, after he filed suit. After Dr. Odom's reinstatement in the rota(: schedule, FMH began administrative proceedings to revoke his hospital privileges. Dr. Odom's original attorney, Joseph Shee-han, had limited his representation of Dr. Odom to the suit against the Defendant doctors. Mr. Sheehan specifically did not want to sue FMH or expand the suit to issues beyond the breach of the Rotation Agreement. Because of this, Dr. Odom retained a different lawyer to represent him in the administrative proceeding before FMH during the first part of 1994. In June 1994, following the administrative proceeding, FMH revoked Dr. Odom's hospital privileges. Trial was set for April 1995. In October 1994 Dr. Odom sought a continuance of the trial date because he needed additional discovery for his case against the Defendant doctors. This was at a time when Dr. Odom already knew of his potential claims against FMH and its parent corporation, based on revocation of his privileges in June of that year. The superior court granted his unopposed motion for continuance; a new trial date was set for January 1996. The deadline for amending pleadings was September 1995. In July 1995 Mr. Sheehan formally informed Dr. Odom that he was withdrawing as Odom's counsel. Dr. Odom attempted to find other counsel, but initially was unsuccessful. In August the Defendant doctors filed a motion for summary judgment. On September 19 the superior court granted Mr. Sheehan's motion to withdraw. Dr. Odom sought and received a two-week extension of the deadline for his response to the summary judgment motion. On October 2 he filed a pro se cross-motion for summary judgment. On October 20, Ray Brown, a partner in the law firm of Dillon & Findley, appeared for Dr. Odom. He filed a motion to vacate the trial date and for a continuance. At oral argument, Mr. Brown told the superior court that, if it granted the motion, his firm would represent Dr. Odom and be ready for trial in nine months. The superior court denied the motion. On October 7, Mr. Brown filed a motion to supplement his summary judgment briefing, and for a Rule 56(f) continuance. The trial court denied this motion on November 15. After the November 15 ruling Brown declined to represent Dr. Odom further. Following oral argument, in which Dr. Odom appeared pro se, the superior court granted summary judgment to the Defendant doctors on three of the four claims. The court took the claim of tortious interference with contract under advisement, and considered two additional arguments that Dr. Odom had failed to raise. The superior court then granted summary judgment to the Defendant doctors on this claim as well. Dr. Odom appeals pro se the denial of the continuance and the summary judgment. III. DISCUSSION A. Breach of Contract The superior court granted summary judgment to the Defendant doctors on all of Dr. Odom's breach of contract claims. We review the superior court's decision de novo. See Farmer v. State, 788 P.2d 43, 46 n. 8 (Alaska 1990). Dr. Odom is entitled to have the record reviewed in the light most favorable to him, and to have all reasonable inferences drawn in his favor. See Metcalfe Invs., Inc. v. Garrison, 919 P.2d 1356, 1360 (Alaska 1996). There are three issues of material fact which the superior court should not have decided on summary judgment: (1) who committed the first material breach; (2) whether the Defendant doctors violated the covenant of good faith and fair dealing; and (3) whether the Defendant doctors had modified the contract, through course of dealing, to permit Dr. Odom's conduct. 1. Materiality of the breach Dr. Odom argues the superior court erred in holding that he breached the Rota tion Agreement on October 4, 1993, by refusing to cover the second operating room staffed by CRNA Wilson. Dr. Odom argues that the Defendant doctors breached the agreement first by requiring him to work with an inadequate CRNA' and by ignoring his requests to resolve the situation that had developed with CRNA Wilson. The superior court concluded that because the parties' responsibility to follow the rotation schedule was the foundation of the contract,' Dr. Odom's breach was sufficient to excuse performance by the Defendant doctors. The contract between the doctors specifically provided that each doctor had the responsibility for providing locum tenens coverage for his own absences. Had Dr. Odom been on vacation and failed to arrange for coverage in his absence, the superior court would have been correct that Dr. Odom's breach was the first material breach. The superior court concluded that because Dr. Odom was not excused from performance because of an emergency, and because he knew of his problem with CRNA Wilson, he could have provided locum tenens coverage during his absence. However, this conclusion does not address the issue of fact raised by Dr. Odom, which is that he had no choice but to accept the CRNAs provided through Anesthesia Associates, Inc., and that Anesthesia Associates, Inc. had the responsibility to supervise them. Dr. Odom argues that the Defendant doctors who had supervisory power over CRNA Wilson committed the first breach. When Dr. Odom notified Dr. Lee of the problem, Dr. Lee took no action. Dr. Odom explained he expected that when he refused to take the two operating rooms it would force the Defendant doctors to meet with him and resolve the problem. Instead the Defendant doctors met without Dr. Odom and excluded him from the contract. The answer to the question of who committed the first material breach depends on who had supervisory control over the CRNAs. If it was the corporation owned by Drs. Lee and McGregor, it was their responsibility to solve the problem with CRNA Wilson. Although Anesthesia Associates, Inc. employed the CRNAs, the Defendant doctors claim that it is each doctor's responsibility to supervise the CRNA under his control. The Defendant doctors admit the CRNAs are "nominally employed"' by the corporation, and that the corporation withholds employment taxes from the nurses' paychecks. Anesthesia Associates, Inc. billed each doctor for his use of the CRNAs and issued paychecks to the CRNAs. The superior court questioned the parties about this. Based on the superior court's questions of Dr. Odom, the superior court apparently concluded that Dr. Odom was under no obligation to use CRNA Wilson and that he could have employed a different CRNA, or even gotten another doctor, outside the Rotation Agreement, to cover his other operating room. This conclusion decides a genuine issue of material fact; whether Dr. Odom was obliged to use the CRNAs provided by Anesthesia Associates, Inc. Several facts alleged by Dr. Odom support his argument that he had no choice but to work with the CRNAs provided by the corporation. Dr. Perisho, one of the Defendant doctors, stated in an affidavit that after the incident between Dr. Odom and CRNA Wilson, the Defendant doctors told Dr. Odom, "if he would continue in the rotation under the terms of the original agreement, and work with the CRNA's as scheduled, he would be welcome back in the rotation." This statement tends to shows that the Defendant doctors believed the Rotation Agreement required accepting the CRNAs provided. Dr. Odom stated in his deposition that at the time the five doctors negotiated the initial Rotation Agreement, there was some concern about continued employment for the CRNAs that had been working with Drs. Lee and McGregor. In his affidavit, Dr. Odom states that the CRNAs were retained to ensure that they would continue to have jobs and to protect Drs. Lee and McGregor's investment in their employees. The Rotation Agreement • itself also indicates that Dr. Odom did not have any choice but to use the CRNAs. It provides for the CRNAs to provide replacements for themselves if they need time off, when they are scheduled to work. It also provides for an alteration of the rotation for the doctors if all of .the CRNAs are on vacation at the same time. • Finally, in- the memo written on the day of the incident with CRNA Wilson, the Defendant doctors indicated'to the Chief of Staff that by refusing to supervise the CRNAs, Dr. Odom had failed to uphold the Rotation Agreement. This tends to show the Defendant doctors believed that it was a provision of the Rotation Agreement to accept the CRNAs employed by Anesthesia Associates, Inc. Reviewing the facts in the light most favorable to Dr. Odom, he refused to handle two operating rooms when one room was staffed by a CRNA who had refused 'to cooperate with him during a Propofol Infusion. He asked the surgical secretary, who had filled vacancies on the anesthesia rotation for five years, to ask the number two doctor on the rotation to assume responsibility for the second operating room. He believed the matter could be resolved before the next time he was number one on the rotation and required to take both operating rooms. Dr. Odom attempted to enlist the help of Dr. Lee in correcting CRNA Wilson and failed. He believed his action of refusing to work with her would force a meeting to resolve the situation. . . Whether Dr. Odom's breach was the first material breach is a genuine issue of material fact, depending on who was responsible for supervising the CRNAs and whether Dr. Odom was obligated to work with them under the terms of the Rotation Agreement. The superior court erred in granting summary judgment on this issue. 2. Good faith Dr. Odom argues that because he was acting in good faith in seeking to call the problem with CRNA Wilson to the attention of the Defendant doctors and to rectify the problem, that the Defendant doctors acted in bad faith by treating Dr. Odom's action as breach of contract. On October 5 the Defendant doctors met without Dr. Odom and, without consulting him, they decided to exclude him from. the Rotation Agreement. The Defendant doctors' bad faith, Dr. Odom argues, is further evidenced by FMH reinstating his staff privileges in full after twenty-four hours. In a memo the Defendant doctors sent to, the Chief of Staff, they state that "[i]t is a further concern of the below signed that patient care is being jeopardized by Dr. Odom's professional practice of medicine." There is no indication whether that statement reflects their concern over Dr. Odom's refusal to follow the rotation, or whether there were other motives which caused them to contact the Chief of Staff about Dr. Odom's staff privileges at FMH. The superior court should not have resolved by summary judgment the issue of whether the Defendant doctors acted in bad faith. 3. The course of dealing Dr. Odom gave the superior court two examples of how the Rotation Agreement had been modified by a doctor's unavailability in the past. One was a medical emergency where a doctor could not leave a patient to cover his assigned operating rooms, and the other was a health emergency where one doctor was too ill to take responsibility for his rooms. The Defendant doctors argue that even if the course of dealing had changed or modified the Rotation Agreement terms for dealing with "unavailability," there is nothing to suggest that the course of dealing modification would cover a dispute over supervision of the CRNAs where Dr. Odom was clearly available. The superior court concluded that any modification that may have been made to the Rotation Agreement reached only unexpected emergencies, and that there was no factual basis to conclude it was modified to authorize Dr. Odom's behavior. It is true that Dr. Odom was available to cover both operating rooms, and that he elected not to because of his problems with CRNA Wilson. However, Dr. Odom raised a question of fact whether it was reasonable for him to assume that he could cover his operating rooms in the manner that had been used before, if in fact he was obligated to use the CRNAs provided by Anesthesiology Associates, Inc. Whether Dr. Odom's conduct was reasonable hinges on the resolution of who supervised the CRNAs and whether Dr. Odom had any other choice but to employ them under the terms of the Rotation Agreement. B. Tortious Interference with Contract The superior court granted summary judgment on this issue from the bench. The court concluded that the contract at issue was the one between the doctors and FMH. The superior court concluded that there had been no breach of any obligation running to FMH. Based on the lack of breach, the superior court determined there could be no tor-tious interference with contract. To establish a tortious interference with contract claim, Dr. Odom must show: (1) an existing contract between him and a third party; (2) the Defendant doctors' knowledge of the contract and intent to induce a breach; (3) breach; (4) wrongful conduct of the Defendant doctors which caused the breach; (5) damages; and (6) the Defendant doctors' conduct was not privileged or justified. See Geolar, Inc. v. Gilbert/Commonwealth Inc. of Michigan, 874 P.2d 937, 940 (Alaska 1994). Dr. Odom argues that the superior court was looking at the wrong contract. Since there can be no tortious interference claim among parties to the same contract, the superior court should not have considered the contract between the doctors and FMH. Dr. Odom is arguing that the Défen-dant doctors tortiously interfered with his contract for hospital privileges at FMH. Those privileges were revoked for twenty-four hours after the Defendant doctors sent a letter to the Chief of Staff, informing him that Dr. Odom had "disrupted the smooth operation of the O.R. schedule" and disregarded the Rules and Regulations. The Defendant doctors claim that Dr. Odom failed to raise this argument below. Dr. Odom's complaint is not specific about which contract he is alleging was interfered with. However, Dr. Odom did not have an opportunity to elaborate on this issue when the superior court ruled from the bench. There is no prejudice to the Defendant doctors in considering the issue. Dr. Odom's attempt to establish his claim of tortious interference was cut short when the superior court ruled from the bench, based on its apparent misunderstanding of which contract was at issue. Dr. Odom should be allowed to develop this claim on remand. C. Antitrust/Unfair Trade Practices In his complaint, Dr. Odom alleges conspiracy to restrain trade, in violation of AS 45.50.562. monopolization, in violation of 45.50.564. and unfair trade practices, in violation of 45.50.566. This court is guided by federal Sherman Act cases in construing the Alaska antitrust law. See West v. Whitney-Fidalgo Seafoods, Inc., 628 P.2d 10, 14 n. 6 (Alaska 1981). Claims brought under AS 45.50.562 are also referred to as Sherman Act § 1 claims; claims under AS 45.50.564 have been termed Sherman Act § 2 claims. Section 1 of the Sherman Act prohibits unreasonable restraints on trade. See 15 U.S.C. § 1 (1997); Business Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717, 723, 108 S.Ct. 1515, 99 L.Ed.2d 808 (1988) (recognizing that § 1 of the Sherman Act "was intended to prohibit only unreasonable restraints of trade"). Federal courts have interpreted this prohibition two ways: (1) under a per se rule, where certain activities are considered illegal, with no requirement to prove actual damage to competition, or (2) under the "rule of reason." See Federal Trade Comm'n v. Indiana Fed. of Dentists, 476 U.S. 447, 457-58, 106 S.Ct. 2009, 90 L.Ed.2d 445 (1986). Dr. Odom's brief criticizes the superior court for applying "some nebulous 'rule of reason' not recognized in any authority on the subject." The rule of reason has been uniformly adopted by federal courts, and there is a presumption in favor of applying this standard. See Business Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717, 726, 108 S.Ct. 1515, 99 L.Ed.2d 808 (1988). Under the rule of reason test "[ajfter the claimant has proven that the conspiracy harmed competition, the fact finder must balance the restraint and any justifications or pro-competitive effects of the restraint in order to determine whether the restraint is unreasonable." Oltz v. St. Peter's Community Hosp., 861 F.2d 1440, 1445 (9th Cir.1988). A contract between a hospital and a group of anesthesiologists is not considered a per se violation of the Sherman Act. See Jefferson Parish Hosp. v. Hyde, 466 U.S. 2, 104 S.Ct. 1551, 80 L.Ed.2d 2 (1984). The rule of reason thus applies to this case. Sherman Act cases of this kind generally must be determined on the facts of each case. See Maple Flooring Mfrs. Ass'n v. United States, 268 U.S. 563, 579, 45 S.Ct. 578, 69 L.Ed. 1093 (1925). This court has noted the United States Supreme Court's admonition that summary judgment should be used sparingly in antitrust litigation. See KOS v. Alyeska Pipeline Serv. Co., 676 P.2d 1069, 1073 (Alaska 1983) (citing Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962)). When an antitrust plaintiff has established a prima facie case, he should have an opportunity to prove the necessary supporting facts at trial. See id. To establish a prima facie case of unlawful restraint of trade Dr. Odom must initially prove three elements: "(1) an agreement or conspiracy among two or more persons or distinct business entities; (2) by which the persons or entities intend to harm or restrain competition; and (3) which actually injures competition." Oltz, 861 F.2d at 1445. Only after Dr. Odom proves these three elements is it incumbent upon the fact finder to "balance the restraint and any justifications or pro-competitive effects of the restraint in order to determine whether the restraint is unreasonable." Id. An attachment to an affidavit Dr. Odom filed with his Verified Complaint, and re-filed in connection with the summary judgment proceedings, discloses that on the day Dr. Odom stated he would not work with CRNA Wilson until problems he perceived with her performance were resolved, Dr. Keith B. Gianni, Chief of Staff at FMH, summarily revoked Dr. Odom's hospital privileges, without prior notice. This was done at the request of the Anesthesia Department, which consisted of the contract Anesthesia Staff, i.e., the Defendant doctors, that had the Anesthesiologist Agreement with FMH. Their unverified memorandum to Dr. Gianni, which listed as its subject "Physician Behavior," stated no more than that "[Dr. Odom's] behavior has disrupted the smooth operation of the O.R. schedule and is in disregard of the Rules and Regulations, to which we have all agreed and signed." In a similarly con-clusory manner they state that "[i]t is further a concern of the below signed that patient care is being jeopardized by Dr. Odom's professional practice of medicine." Apparently Dr. Gianni made no independent verification of the issues raised by the contract Anesthesia Staff. The afternoon following the episode involving Dr. Odom's admitted refusal to work with CRNA Wilson, Dr. Per-isho, Chairman of the FMH Department of Anesthesia,, one of the contract Anesthesia Staff as well as a Defendant doctor, sent a memorandum to Dr. Odom. The memorandum recites that he and Drs. Mancil, Lee, McGregor, and Stinson, who constituted the contract Anesthesia Staff under the Anesthesiologist Agreement with FMH, had met and decided that: 1. Dr. Odom has violated anesthesia contract [with FMH] and rules and regulations [of the Anesthesia Staff]. 2. The [Anesthesia Staff] wishes not to continue Dr. Odom as a party to the agreement [with FMH]. 3. Effective immediately Dr. David Odom will be an independent and solo practitioner with responsibility to maintain privileges according to the medical staff bylaws. He may do cases on request both scheduled and emergency. It should be understood that if Dr. Odom is not specifically requested, Anesthesia [S]taff as part of the [Anesthesiologist [A]greement will provide the anesthesia services and follow the revised rules and regulations parallel to the past. 4. Issues regarding quality assurance review and recommendations made to Dr. Odom must continue to be addressed by Dr. Odom. The next day Dr. Gianni, Chief of Staff, sent Dr. Odom a memorandum in which Dr. Gian-ni stated that "[y]our summary suspension issued yesterday has expired and I have elected not to continue it." The crisis that presumably had justified Dr. Odom's summary suspension without notice, and thus terminated Dr. Odom's responsibilities under the Anesthesiologist Agreement, had thus resolved. However, Dr. Gianni also stated that "[y]ou have your former privileges in full; specifically, you may render anesthesia care when so asked by another physician or patient." In his affidavit, Dr. Odom swears that: After the meeting with the Defendants, I met with Gingerich to determine whether FMH would continue to allow me to practice and, more particularly, would the hospital provide me with a pro-rated portion of the anesthesia practice. Gingerich advised me that my privileges at the hospital would remain valid, however, the hospital would not give me a pro-rated portion of the anesthesia practice, since it had a contract with the Defendants. Gingerich did indicate that if I was specifically name requested by a physician, hospital staff would permit the scheduling. The effect of Defendants' conduct was to eliminate my practice of medicine in Fairbanks. According to this affidavit, Dr. Odom later sent a letter to Gingerich requesting that I be permitted to continue sharing on'a pro-rated basis in the anesthesia practice at FMH and that steps be taken to resolve the dispute between myself and the Defendants.... Gingerich did not respond in writing to my correspondence, however, verbally he told me that he would not intercede and would not allow me a pro-rated portion of the anesthesia practice. In the same affidavit, Dr. Odom swears that: The gross value of anesthesiology services provided at FMH, is approximately Three Million ($3,000,000) Dollars per year. In the past five years, surgeons have not been permitted to name request anesthesiologists. Although this practice has changed, neither the surgeon nor the patient is advised that they have a choice of anesthesiologists, the names of the anesthesiologists, or the rates which each anesthesiologist charges. Because of past practice and the present lack of information, almost all anesthesia will go to the Defendants because FMH does not provide or permit otherwise. The Defendants have had a contract with FMH every year that I have been here, since 1989, except for 1991 and 1992. Despite not having a contract in 1991 and 1992, the anesthesiologists continued the rotation' system and pro-rated the anesthesia practice. During these years, total gross revenues have been about the same — meaning that each anesthesiologist receives approximately Five Hundred Thousand ($500,000) Dollars annually. Since I am now precluded from the Anesthesia Agreement, my portion of these gross revenues (approximately Five Hundred Thousand ($500,000) Dollars) is being taken by the Defendants and divided among themselves — essentially each of them picks up another One Hundred Thousand ($100,000) Dollars, at my expense. The Defendant doctors argued to the superior court that the "Anesthesiologist Agreement at issue provided benefits to the community outweighing any concomitant restraint on commerce." The superior court agreed, determining that the Anesthesiologist Agreement did not constitute a conspiracy in restraint of trade: It's not clear to me, and it's not necessary to decision in this case, whether that contract — now we're talking about again the contract between the [anesthesiologists] and FMH — would be viewed as an antitrust violation outside the context of this case. But the specific context of this case, that is contract for the provision of medical services, makes it pretty clear to me that no such violation occurred here, even color-ably. It's certainly in the public interest that the coverage that we're talking about here be provided reliably and constantly. It's pretty clear that, given the rule of reason, there is no anti-trust violation even though there may have been some combination that somehow acted to restrict free trade and free competition in the area. See Oltz, 861 F.2d at 1449 (noting that "[t]he rule of reason requires an evaluation of each challenged restraint in light of the special circumstances involved"). Viewing the record in the light most favorable to Dr. Odom, and drawing all reasonable inferences in his favor, a jury could find that the Defendant doctors had engaged in a conspiracy to restrain trade, had attempted to monopolize the anesthesiology practice at FMH, and had engaged in trade practices the effect of which was substantially to lessen competition or tended to create a monopoly in the anesthesiology practice at FMH. Thus Dr. Odom has presented sufficient evidence to establish prima facie statutory causes of action against the Defendant doctors. In briefing before this court, the Defendant doctors note that the rule of reason "requires an evaluation whether, under all the circumstances of the case, the restrictive practice imposes an unreasonable restraint on competition." As noted, they argue that the public interest benefits flowing from the Anesthesiologist Agreement satisfy the rule of reason. Dr. Odom has sworn that during a two-year interval there was no contract between the anesthesiologists and FMH, from which it could be inferred that any public interest benefits flowing from the contract, which largely consisted of the assurance of reliable and constant anesthesiology coverage at all times, could be achieved without a contract. He also has sworn that it was the practice of FMH to prohibit surgeons from "name requesting" an anesthesiologist, a practice that had been replaced by the policy of simply not advising surgeons or patients that they could "name request" an anesthesiologist. Balancing the restraint of competition against the public interest also is a question of fact to be determined by the jury. It is not a determination to be made on summary judgment. IV. CONCLUSION The summary judgment is REVERSED and the case is REMANDED for further proceedings consistent with this opinion. EASTAUGH, Justice, not participating. .In view of our reversal of the summary judgment, we need not address the denial of the motions for continuance and to amend pleadings. . A sixth doctor, Lawrence W. Stinson, joined the group later. . In 1991 and 1992, the sharing was not pursuant to the formal agreement with FMH later herein described. . The procedure CRNA Wilson refused to cooperate in is called Propofol Infusion. This type of anesthesia is administered through die blood stream rather than through the respiratory system. There is no dispute about Dr. Odom's use of this procedure. . The other doctors point out in their briefing that Dr. Odom filed a second suit in Fairbanks superior court, Odom v. Fairbanks Memorial Hospital et al., Case No. 4FA-95-3001. In that suit Dr. Odom raises claims similar to the ones included in this suit, but which stem from the administrative proceeding in which FMH revoked his staff privileges. The other doctors are included among the fifteen defendants in that case. That case is now on appeal to this court, docketed as 999 P.2d 123 (Alaska 2000). We make no determination of the effect of our resolution of this case on the issues raised in that appeal. . There were three CRNAs employed by Anesthesia Associates, Inc. at the time of this dispute. Dr. Odom requested the third CRNA replace Wilson on October 5. However, the third CRNA was unavailable. . AS 45.50.562 provides: Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce is unlawful. . AS 45.50.564 provides: It is unlawful for a person to monopolize, or attempt to monopolize, or combine or conspire with another person to monopolize any part of trade or commerce. . AS 45.50.566 provides: It is unlawful for a person to . make a . contract for sale of . services, . on the condition, agreement, or understanding that the . purchaser will not use or deal in the . service of a competitor or competitors of the . seller, if the effect of the . contract for sale, or of the condition, agreement, or understanding may be substantially to lessen competition or tend to create a monopoly in any line of commerce.

10340302

STATE of Alaska, Appellant, v. Frank STEFFENSEN, Appellee

State v. Steffensen

1995-09-15

No. A-5041

340

343

902 P.2d 340

902

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:43:34.517492+00:00

CAP

Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

STATE of Alaska, Appellant, v. Frank STEFFENSEN, Appellee.

STATE of Alaska, Appellant, v. Frank STEFFENSEN, Appellee. No. A-5041. Court of Appeals of Alaska. Sept. 15, 1995. Review Denied Nov. 20, 1995. Cynthia L. Herren, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for appellant. Marcia E. Holland, Assistant Public Defender, Fairbanks, and John B. Salemi, Public Defender, Anchorage, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

1831

11724

OPINION MANNHEIMER, Judge. The State of Alaska appeals the superior court's decision to grant post-conviction relief to Frank Steffensen. As explained in more detail below, we remand this ease to the superior court for further proceedings. In 1988, Steffensen was charged with third-degree misconduct involving a controlled substance (possession of cocaine), AS 11.71.030(a). The cocaine was discovered on Steffensen's person after he was arrested on an outstanding bench warrant. Steffensen ultimately pleaded no contest to the cocaine charge. In his subsequent petition for post-conviction relief, Steffensen claimed that he had received ineffective assistance of counsel because his attorney did not seek suppression of the cocaine by attacking the legality of Steffensen's arrest. Superior Court Judge Mary E. Greene agreed with Steffensen that a competent attorney would at least have researched such a motion. Judge Greene further concluded that there was at least a reasonable possibility that the suppression motion would have been granted if it had been filed. Based on these findings, Judge Greene ordered that Steffensen be allowed to withdraw his plea. We agree with Judge Greene that the theory of suppression argued by Steffensen in his petition for post-conviction relief was reasonably apparent from existing search- and-seizure case law. However, a defense attorney's failure to pursue a potentially dis-positive motion is not always a sign of incompetence. Depending on the circumstances of the ease, an attorney may have sound reasons not to pursue such a motion. For example, during his testimony at the hearing in this case, Steffensen's attorney suggested that he might have knowingly refrained from filing the suppression motion because he intended to negotiate a "package deal" that would resolve several criminal charges pending against Steffensen, and because he felt that the State would probably insist on the same negotiated sentence regardless of whether he was successful in knocking out any one charge. The defense attorney's testimony only suggests, and does not establish, this possible explanation of his inactivity. Nevertheless, if Steffensen's attorney had a valid tactical reason for failing to pursue the suppression motion, then his failure to pursue the motion would not constitute ineffective assistance of counsel. Tucker v. State, 892 P.2d 832, 834 (Alaska App.1995); Steffensen v. State, 837 P.2d 1123, 1126-27 (Alaska App.1992). Even assuming that the defense attorney had no valid reason for failing to pursue the suppression motion, the question remains whether Steffensen was prejudiced by his attorney's inaction. On appeal, the State argues that Steffensen's arrest was legal under the facts of this case and that the proposed suppression motion would have been denied. Steffensen, for his part, argues that his arrest was illegal and that the superior court would have suppressed the evidence against him if the proposed motion had been filed. Both parties' arguments are premature; the superior court has never ruled on Steffensen's proposed suppression motion. In her decision, Judge Greene did not reach the merits of Steffensen's suppression motion; she merely found that there was at least a reasonable possibility that the motion would have been granted if it had been filed and heard. It is evident that the number of color-able suppression motions (those that have some possibility of success) is greater than the number of winning ones. Many colorable motions are ultimately denied because, under the law and the facts of the case, they turn out to be meritless. If criminal convictions were overturned based merely on a showing that the defense attorney inexcusably failed to file a colorable (but ultimately meritless) motion, many convictions would be overturned for no good reason. That is, a defendant is not prejudiced by a defense attorney's failure to file a suppression motion if, after the motion is fully heard, the court finds that the motion should be denied. Judge Greene's findings — (1) that Steffensen's attorney failed to investigate a suppression motion, (2) that this motion had at least a colorable chance of success, and (3) that this motion would have been dispositive if granted — are not a sufficient basis to allow Steffensen to withdraw his plea. Under Risher v. State, 523 P.2d 421, 425 (Alaska 1974), even after a defendant demonstrates that his or her attorney failed to act competently, the defendant must additionally demonstrate that there is at least a reasonable possibility that the attorney's lack of competency contributed to the defendant's conviction. Applying this standard to the facts of Stef-fensen's case, we conclude that Risher requires proof that the proposed suppression motion would have been granted and, additionally, that there is at least a reasonable possibility that the outcome of the trial court proceedings would have been different had the evidence been suppressed. In Tucker, 892 P.2d at 834, this court reviewed a similar post-conviction relief claim and declared that the defendant had failed to establish grounds for relief because he had "failed to establish that the warrantless seizure of his clothing was unlawful" and because the defendant had "similarly failed to create a reasonable doubt as to whether suppression of the clothing would have altered the jury's decision". In an analogous case, the United States Supreme Court stated: Where defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must . prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence[.] Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 2582, 91 L.Ed.2d 305 (1986). In the quoted passage, the Supreme Court refers to a "reasonable probability" that the verdict would have been different. This phrasing comes from Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). In Alaska, under the Risher test, the question is whether there is a "reasonable possibility" that suppression of the challenged evidence would have led to a different result, because Risher holds that it is the defendant's burden to create a reasonable doubt concerning whether he or she was prejudiced by the trial attorney's incompetence. State courts are split concerning whether to require proof that a defense attorney's incompetence had a "reasonable probability" of affecting the verdict (the Strickland test) or a "reasonable possibility" of affecting the verdict (the Risher test). However, regardless of which standard of proof courts apply, the courts unanimously agree that when a defendant asserts ineffective assistance of counsel based on his or her attorney's failure to challenge the government's evidence, the defendant must show that the proposed challenge would have been successful and then the defendant must show that the objectionable evidence might have affected the verdict. See State v. Berryman, 178 Ariz. 617, 622 & n. 3, 875 P.2d 850, 855 & n. 3 (App.1994), review denied (Ariz.1994) (To show ineffective assistance of counsel, the defendant must show that the proposed suppression motion would have succeeded and that, with the challenged evidence suppressed, there is a reasonable possibility that the result at trial would have been different.); State v. Kasten, 170 Ariz. 224, 228-29, 823 P.2d 91, 95-96 (App.1991), review denied (Ariz.1991) (the defendant must show that the suppression motion would have been granted); Huck v. State, 124 Idaho 155, 158-59, 857 P.2d 634, 637-38 (App.1993); State v. Richardson, 114 N.M. 725, 727-28, 845 P.2d 819, 821-22 (App. 1992), cert. denied, 114 N.M. 550, 844 P.2d 130 (1992); State v. Thompson, 69 Wash.App. 436, 848 P.2d 1317, 1321 (1993). See also People v. Mattson, 50 Cal.3d 826, 268 Cal.Rptr. 802, 836, 789 P.2d 983, 1017 (1990), cert. denied, 498 U.S. 1017, 111 S.Ct. 591, 112 L.Ed.2d 595 (1990) ("A claim of ineffective assistance of counsel based on a trial attorney's failure to make a motion or objection must demonstrate not only the absence of a tactical reason for the omission . but also that the motion or objection would have been meritoriousf.]"). Thus, two issues remain to be resolved in Steffenseris post-conviction relief litigation: (1) whether Steffenseris attorney had a valid tactical reason to refrain from pursuing the proposed suppression motion; and (2) whether the proposed suppression motion is, in fact, meritorious. (Under the facts of this case, suppression of the cocaine obviously would affect the outcome of the criminal proceeding against Steffensen.) These two unresolved issues turn on questions of fact that have not been fully litigated. We therefore remand this ease to the superi- or court. This case is REMANDED to the superior court for further proceedings in light of this opinion. We do not retain jurisdiction of this ease. Before COMPTON, C.J., and RABINOWITZ, MATTHEWS, MOORE and EASTAUGH, JJ. ORDER On consideration of the petition for review filed on September 11, 1995, and the response filed on October 10, 1995, IT IS ORDERED: The petition for review is DENIED. Entered by direction of the Supreme Court at Anchorage, Alaska on November 20, 1995. . The requirement that the merits of the proposed suppression motion be demonstrated conclusively (rather than to some lesser degree of certainty) appears grounded on the recognition that, once the facts are determined, a suppression motion presents a question of law that is susceptible of a conclusive answer. On the other hand, any ensuing assessment of how the fact-finder would have viewed the case if the challenged evidence had not been presented necessarily involves a weighing of probabilities. . See State v. Richardson, 114 N.M. 725, 729, 845 P.2d 819, 823 (1992), cert. denied, 114 N.M. 550, 844 P.2d 130 (1992), holding that when a defendant's trial attorney appears to have acted incompetently but the record does not resolve whether the attorney had a justifiable tactical reason for the action/inaction, an appellate court's proper course is to remand the case to the trial court for a hearing on this issue. Compare the approach taken in In re Neely, 6 Cal.4th 901, 26 Cal.Rptr.2d 203, 205, 864 P.2d 474, 476 (1993), where the California Supreme Court, after determining that there were colorable grounds for the defendant's proposed suppression motion, appointed a superior court judge to be a "referee" (that is, a special master) and directed the referee to hold a hearing into (1) the factual merit of the defendant's proposed suppression motion and (2) the reasons why the defendant's trial attorney refrained from filing the motion. After making these findings, the referee sent the case back to the supreme court.

10403243

Otto VIENNA, Francis Lohof, Tom Kirby, Katherine Chaisson, Carl Godtland, Marvin Mills, James McCleary, Thomas Estabrook, and Don Davis, Individually and as Class Representatives, Appellants, v. SCOTT WETZEL SERVICES, INC., Providence Washington Insurance Company, Industrial Indemnity Insurance Company, Aetna Life & Casualty, and Crawford & Company, Appellees; AETNA CASUALTY & SURETY COMPANY, and Morrison-Knudsen Company, Appellants, v. Eugene SULKOSKY, Appellee

Vienna v. Scott Wetzel Services, Inc.

1987-07-24

Nos. S-1289, S-1290, S-932

447

453

740 P.2d 447

740

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:43:14.099706+00:00

CAP

Before RABINOWITZ, C.J., and BURKE, MATTHEWS and COMPTON, JJ.

Otto VIENNA, Francis Lohof, Tom Kirby, Katherine Chaisson, Carl Godtland, Marvin Mills, James McCleary, Thomas Estabrook, and Don Davis, Individually and as Class Representatives, Appellants, v. SCOTT WETZEL SERVICES, INC., Providence Washington Insurance Company, Industrial Indemnity Insurance Company, Aetna Life & Casualty, and Crawford & Company, Appellees. AETNA CASUALTY & SURETY COMPANY, and Morrison-Knudsen Company, Appellants, v. Eugene SULKOSKY, Appellee.

Otto VIENNA, Francis Lohof, Tom Kirby, Katherine Chaisson, Carl Godtland, Marvin Mills, James McCleary, Thomas Estabrook, and Don Davis, Individually and as Class Representatives, Appellants, v. SCOTT WETZEL SERVICES, INC., Providence Washington Insurance Company, Industrial Indemnity Insurance Company, Aetna Life & Casualty, and Crawford & Company, Appellees. AETNA CASUALTY & SURETY COMPANY, and Morrison-Knudsen Company, Appellants, v. Eugene SULKOSKY, Appellee. Nos. S-1289, S-1290, S-932. Supreme Court of Alaska. July 24, 1987. Chancy Croft, Anchorage, for appellants in nos. S-1289, S-1290. Allan E. Tesche, Randall J. Weddle, Faulkner, Banfield, Doogan & Holmes, Anchorage, for Scott Wetzel Services, Inc., Indus. Indemnity Ins. Co., and Aetna Life and Cas., appellees in nos. S-1289, S-1290, and Aetna Cas. & Surety Co. and Morrison-Knudsen Co., appellants in no. S-932. Patricia L. Zobel, Schaible, Staley, DeLi-sio & Cook, Inc., Anchorage, for Providence Washington Ins. Co., appellee. Robert L. Eastaugh, Delaney, Wiles, Hayes, Reitman & Brubaker, Inc., Anchorage, for Crawford & Co., appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS and COMPTON, JJ.

4053

25231

OPINION RABINOWITZ, Chief Justice. In Alaska Pac. Assurance Co. v. Brown, 687 P.2d 264 (Alaska 1984), we affirmed the superior court's determination that AS 28.30.175(d) is unconstitutional. The superior court had concluded that the statute unconstitutionally reduced compensation benefits of injured workers who choose to reside outside of Alaska. Id. at 268 & n. 3. However, we reversed the superior court's award of damages retroactive to the date of the enactment of AS 23.30.175(d) and held that those workers who were parties to the litigation could be awarded damages prospectively from the effective date of the superior court's decision. Id. at 274-76 & n. 19. The principal issue in these consolidated appeals is the extent to which, if any, our decision in Brown should be applied retroactively to those injured workers who were non-parties to the Brown litigation and who seek damages for compensation underpayments. We hold that Brown retroactively applies to the date of the superior court Brown decision to those non-party workers whose claims remain open to adjudication and to those who have preserved the issue for appeal. I. PROCEEDINGS. A. Otto Vienna. Appellants in Otto Vienna are workers who suffered work-related injuries in Alaska and filed claims for workers' compensation benefits, were paid temporary total disability compensation, and resided outside of Alaska for at least some period of time between December 12, 1981 (the date of the superior court's decision in Brown), and February 17, 1984 (the date of this court's decision in Brown). Appellees are insurers and adjusters who, until the issuance Brown, either paid as insurers paid, or recommended payment of as adjusters, compensation benefits at the out-of-state rate subsequent to the superior court's ruling in Brown that AS 23.30.175(d) was unconstitutional. The injured workers, individually and as a class, sought damages for compensation underpayments between December 12, 1981 and February 17, 1984. In the context of a motion for summary judgment, the superior court held that the superior court Brown decision was not binding on the insurers and adjusters; that AS 23.30.-175(d) remained validly enacted as to carriers who were not parties to the Brown case until this court issued its decision in Brown; that this court's opinion in Brown precluded any award of damages against the insurers and adjusters for their compliance with AS 23.30.175(d) prior to February 17, 1984; that the insurers and adjusters complied with Brown by paying to their out-of-state compensation recipients benefits calculated at the Alaska rate after February 17, 1984; and that Brown is to be applied prospectively as to all non-parties to the Brown litigation. B. Sulkosky. In October 1982, Sulkosky suffered a work related injury in Alaska and received workers' compensation benefits. He appealed the decision of the Alaska Workers' Compensation Board (board) denying his claim for compensation at the Alaska rate for the period of October 24, 1982 through August 30, 1983. During that period he resided outside of Alaska and was compensated at the lower out-of-state rate. He filed his appeal in the superior court eight days before our decision in Brown, and properly raised the compensation issue in his points on appeal to the superior court. Based on its finding that Brown should be applied retroactively to December 12, 1981, the superior court reversed the decision of the board, directing it to pay Sulkosky at the Alaska rate for the period in which he resided out-of-state. II. PROSPECTIVE OR RETROACTIVE EFFECT? The superior court in Brown declared AS 23.30.175(d) unconstitutional and imposed damages from the effective date of its enactment (September 22,1976). As indicated at the outset we affirmed the superior court's ruling that, under the equal protection clause of Alaska's constitution, AS 23.30.175(d) was unconstitutional, but we reversed its retroactive award of damages to the date of the enactment of AS 23.30.175(d). In our opinion in Brown we stated in part that: [T]he prospective effect of the superior court's judgment is unaffected . [by our holding that private entities who regulate their behavior in good faith compliance with a validly enacted law cannot be legally responsible for constitutional defects of the law].... From and after the effective date of the judgment appellant and the other class members are entitled to the payments they would have received except for the unconstitutional provisions of § 175. In Commercial Fisheries Entry Comm'n v. Byayuk, 684 P.2d 114 (Alaska 1984), we addressed the question of whether State, Commercial Fisheries Entry Comm'n v. Templeton, 598 P.2d 77 (Alaska 1979), should be applied prospectively or retroactively. In Byayuk we noted that Templeton itself "did not specifically deal with this issue beyond applying the rule to the litigants in that case." Similarly, in Brown we did not specifically treat the retroactivity issue beyond holding that partial retroactivity applied to the parties. There is no rule concerning retroactivity articulated in Alaska's constitution. Each case must be decided on its unique facts. "Concerning civil cases, this court has held that retroactivity is the rule and prospectivity is the exception." In this regard in Plumley v. Hale, 594 P.2d 497, 502 (Alaska 1979) (footnote omitted), we said: Absent special circumstances, a new decision of this court will be given effect in the case immediately before the court, and will be binding in all subsequent cases in which the point in question is properly raised, regardless of the fact that the events to which the law is applied occurred prior to the actual decision of the Court. In a number of our cases however, we have recognized that on occasion, the interests of justice may demand that a new rule of law only be applied prospectively. In order to provide an analytical framework for future cases we announced, in Byayuk, four criteria for determining re-troactivity: 1) whether the holding either overrules prior law or decides an issue of first impression whose resolution was not foreshadowed; 2) whether the purpose and intended effect of the new rule of law is best accomplished by a retroactive or a prospective application; 3) the extent of reasonable reliance upon the old rule of law; and 4) the effect on the administration of justice of a retroactive application of the new rule of law. Application of the criteria to the record in the instant case persuades us that no reasons have been shown which require deviation from the normal rule of retroactivity. The first Byayuk criterion establishes a threshold test to determine whether a purely prospective application of a new rule of law is at issue. In Warwick v. State ex rel. Chance, 548 P.2d 384, 394-95 (Alaska 1976), we went beyond this threshold criterion to consider the remaining criteria for determining retroactivity, where this court had not previously been called upon to interpret the provision in question and the construction of the provision was "subject to rational disagreement." In our view this threshold test has been met in the case at bar, since this court had not addressed the question of the constitutionality of AS 23.30.175(d) prior to our decision in Brown and it can be said that the issue was one "subject to rational disagreement." Thus the threshold Byayuk test has been met. Once the threshold test has been satisfied, then the purpose and intended effect of the Brown decision must be analyzed. As we observed in Byayuk, "[t]his is the single most important criterion to use in determining whether to apply a new rule of law retroactively or prospectively." The workers argue that the purpose and intended effect of the Brown decision was the invalidation of the impermissible distinction between Alaska residents and nonresidents as well as the elimination of a penalty against the right to travel among the states. They contend that the intended purpose and effect of Brown are better effectuated by retroactive application. The primary purpose of Brown was to overcome the penalty imposed on those injured workers who traveled out of Alaska and thus faced reduced workers' compensation benefits. Brown was intended to compensate those penalized workers, by awarding them the difference between the Alaska rate of workers' compensation and the out-of-state rate which had been previously denied to them. Of additional significance is the fact that in Brown we sought to balance the compensatory interest of the Brown class members with the reliance interest of Alaska Pacific Assurance Company (ALPAC) by giving the decision retroactive effect to the date of the superior court's decision. Here the same interests are involved. Both ALPAC and non-party insurers were aware of the possibility of this court's affirming the superior court Brown decision holding AS 23.30.175(d) unconstitutional. After the superior court's decision in Brown the non-party insurers' reliance on the continuing validity of AS 23.30.175(d) paralleled that of ALPAC's reliance. Moreover, the same inequity results to both Brown class members and other non-party workers who were denied the in-state rate of compensation. Therefore, in order to effectuate the intent and purpose of Brown we conclude that the same balance should be struck in the present case for both non-party workers and non-party insurers. The third criterion to be applied under the Byayuk test is the extent of reasonable reliance by the non-party insurers upon AS 23.30.175(d). Although we think it debat able whether it can be said that the non-party insurers reasonably relied on the constitutionality of AS 23.30.175(d) after the superior court's decision in Brown, we are of the further view that the weight to be given to any such reasonable reliance is of "minimal importance where the purpose and intended effect of the new rule of law clearly justifies retroactive application." Thus, given our view as to the intended effect and purpose of Brown we think that retroactive application of Brown to non-party workers in the instant case is appropriate. As was noted by Justice Matthews in his dissenting opinion in Suh v. Pingo, 736 P.2d 342 at 348 (Alaska, 1987): An insurer's reliance interest is insufficient to compel prospective application of a change in the law unless the insurer presents a compelling case of grave financial consequences. No such showing has been presented in this case. The last Byayuk criterion remaining to be examined in the context of this case is the effect on the administration of justice of a retroactive application of Brown to non-party insurers. As was noted in Bya-yuk, "[t]his factor is useful in determining not only whether a new rule should apply retroactively but also how far the application should extend." In large measure application and analysis of this last Byayuk criterion to this case is controlled by our discussion of the third Byayuk criterion — the extent of reasonable reliance by non-party insurers. In short, we conclude that any negative impact retroactive application of Brown would have on the administration of justice is outweighed by the "fundamental inequity" which would result if injured workers were to be permanently deprived of full compensation. Given the foregoing we conclude that our decision in Brown should be accorded retroactive application to non-party workers and insurers in the instant case to the date of the superior court Brown decision. Our holding is limited to those workers whose claims remain open to adjudication and to those who have preserved the issue for appeal. III. ARE THE ADJUSTERS LIABLE FOR INSUFFICIENT PAYMENT OF COMPENSATION IF BROWN IS ACCORDED RETROACTIVE APPLICATION? The adjusters separately argue that they should not be liable for the reduction of benefits or the relief sought by the workers because as adjusters they are distinct from insurers under state law. They further argue that under principles of agency they are not liable for contracts made with employers for undisclosed or partially disclosed principals, i.e., the insurance carriers, because they never entered into a contract or made a contract on behalf of an insurer. Moreover, they argue that because employers must by law provide the name of the insurer, there is no undisclosed principal, the undisclosed agency doctrine does not apply, and therefore the insurer is liable for the payment of claims. In State v. Appleton & Cox, 703 P.2d 413, 414 (Alaska 1985), we said: "When the agent of the insurer acts in an authorized nontortious manner he is not personally liable to the insured for his acts or for any contracts which he makes on behalf of his disclosed principal." 4 G. Couch, Cyclopedia of Insurance Law 2d § 26A:288, at 552 (Rev. ed. 1984) (footnote omitted). Accord Restatement (Second) of Agency § 320 (1958); but cf. id. § 321, 322 (agent liable if principal undisclosed). In Appleton the state was furnished with a statement that the state would be covered, and which mistakenly identified the insurer as Appleton & Cox/Lloyds, London. Id. at 413. Appleton & Cox was a surplus lines insurance broker. Id. The state contended that Appleton & Cox was liable as an agent of an undisclosed principal. Id. at 414. We held Appleton & Cox not liable, stating: "Assuming the existence of an agency relationship, we nevertheless conclude the principals' [sic] identity is disclosed in the policy and the certificate of insurance, therefore Appleton & Cox is not personally liable." Id. Under AS 23.30.060(a) an employer is conclusively presumed to have elected to pay compensation directly to employees for injuries sustained, unless notice is provided to the employee in writing indicating that the employer has workers' compensation insurance. The notice of insurance must be posted in at least three conspicuous places at the place of employment, identifying the insurer, the insurer's address and the period covered by the insurance. AS 23.30.060. Therefore, as in Appleton the identity of the principal would be disclosed as either the insurer by posted notice or the employer by legislative decree. Therefore, assuming the adjuster is the insurer's agent, the adjuster would be an agent of a disclosed principal "not personally liable to the insured for his acts or for any contract which he may make on behalf of the disclosed principal," unless he acts in a tor-tious manner. See also Continental Ins. Co. v. Bayless & Roberts, 608 P.2d 281, 287-288 (Alaska 1980) (an adjuster in the circumstance of a disclosed principal will only be held liable for its own tortious conduct). Here there is no tortious behavior alleged, but merely compliance with the insurers' position as to the continuing validity of section 175(d). Because the adjusters are not undisclosed agents and have not committed any tortious act against the insured injured workers, we reverse the superior court's denial of the adjusters' motion for summary judgment. The decision in Otto Vienna is REVERSED and REMANDED for further proceedings; the decision in Sulkosky is AFFIRMED. . As noted in Brown, 687 P.2d at 267 n. 1, this provision was amended in 1982 along with the whole of AS 23.30.175. Former section .175(d) was reclassified as section .175(c). Id. For the sake of convenience we will use only section .175(d) in this opinion, with the understanding that both old and new versions are included in this reference. . Also at issue on appeal in Otto Vienna is whether insurance adjusters are liable for compensation underpayments. .Additionally, the superior court held that the adjuster's theory in seeking summary judgment was mooted by its grant of summary judgment on the rationale that Brown would not be accorded retrospective application to non-parties. The adjusters' subsequent motion to amend the judgment and grant them summary judgment based on their status as adjusters was denied by the superior court. . Brown, 687 P.2d at 269; see ch. 252, § 5, SLA 1976. . Brown, 687 P.2d at 274-76. . Id. at 276 n. 19. . Byayuk, 684 P.2d at 117. . See Brown, 687 P.2d at 275-76 & n. 19. . Byayuk, 684 P.2d at 117. . Id. . Id. (citing Plumley v. Hale, 594 P.2d 497, 502 (Alaska 1979)). . Id. . Id. . While the superior court in Brown found section 175(d) unconstitutional, another superi- or court upheld section 175(d), McCracken v. State, No. 77-8481 Civ. (Alaska Super., 3rd Dist., Anchorage, June 14, 1979), against a challenge under the privileges and immunities clause; moreover, the State of Alaska Division of Insurance, the agency charged with regulating insurance rates for workers' compensation coverage, did not consider the superior court decision in Brown to constitute a change in law allowing an increase in workers' compensation insurance rates. . Byayuk, 684 P.2d at 118. . See Brown, 687 P.2d at 273-74. . See id. at 275-76 & n. 19. . See id. at 276 n. 19. . As to this criterion we said that in Byayuk that: The next criterion is closely related to the threshold test in substance although not in purpose. In this instance the extent of reliance on an old rule of law is used to further weigh the merits of a prospective versus a retrospective application and also to set the limits of retroactivity. In other words, rather than setting forth a determinative test, as the threshold criterion does, this criterion is used as a balancing factor. We note that this criterion is generally designed to protect persons who innocently rely on judicial or legislative law rather than agencies which rely upon their own regulation.... [T]his factor is of minimal importance where the purpose and intended effect of the new rule of law clearly justifies a retroactive application. 684 P.2d at 119 (emphasis added). . Byayuk, 684 P.2d at 119. . The following footnote accompanied this portion of Justice Matthews' dissent. 2. Compare EEOC v. Texas Industries, 782 F.2d 547, 552 (5th Cir.1986) (finding no substantial inequity where fiscal soundness of health insurance plan would not be jeopardized by retroactive relief where the overruling law "should have been seen as, at the least, a significantly realistic possibility"), with Los Angeles Dep't of Water & Power v. Mankart, 435 U.S. 702, 719-22, 98 S.Ct. 1370, 1380-82, 55 L.Ed.2d 657, 672-74 (1978) (noting possible devastating effect of retroactive relief on fifty million Americans), and Arizona Governing Comm. v. Norris, 463 U.S. 1073, 1105-07, 103 S.Ct. 3492, 3510-11, 77 L.Ed.2d 1236, 1262-63 (1983) (noting devastating re-suits of holding employers liable retroactively). Professor Keeton's persuasive rationale for retrospective overruling in civil cases was also alluded to by Justice Matthews in his dissent. Suh, 736 P.2d 342 at 348-349, Professor Keeton writes: It is sometimes suggested that retrospective overruling in tort cases is unfair not only to the uninsured institutions but also to the liability insurers whose rates have been set in reliance on precedent and to the group of policyholders who will pay higher than the compensatory premiums in order to make up for the losses the insurers suffered by collecting inadequate premiums over the period to which the overruled decision retrospectively applies. But the implications of. this view make it wholly unacceptable. First, its general acceptance would in effect disable courts from creative decisions in accident law. Second, the need for protection of the reliance interest is much less significant in this context than in the context of uninsured institutions, since the risk of disastrous impact upon a particular insurer is so much less serious. Some guarantee of this appraisal appears in the fact that ordinarily it is impossible to trace the impact of particular legal doctrines upon liability insurance rates. Keeton, Creative Continuity in the Law of Torts, 75 Harv.L.Rev. 463, 492-93 (1962) (emphasis added, footnote omitted). .Byayuk, 684 P.2d at 119 (citing State v. Glass, 596 P.2d 10, 14 (Alaska 1979)). We further noted that "[a] change in the law or the formation of a new rule will invariably lead to some inequitable results." Id. . Compare Justice Matthews' dissent in Suh, 736 P.2d 342 at 349, where he writes in part: Moreover, any unfairness to the insurer, which is compelled to pay benefits that were not foreseen in the insurance rate structure, is at least equally balanced by the unfairness which each claimant is forced to suffer when he does not receive the benefits which the law, properly construed, affords him, and which the legislature intended to provide. Every dollar saved by an insurance carrier under an improper construction of the law is a dollar taken from the legal entitlement of a claimant. We have previously said that the Workers' Compensation Act should be liberally construed in favor of claimants. Hood v. State, 574 P.2d 811, 813 (Alaska 1978). When the equities are evenly divided this rule of construction requires a decision in favor of the claimants. . Compare Griffith v. Kentucky, 479 U.S.-, -, 107 S.Ct. 708, 716, 93 L.Ed.2d 649, 661 (1987) (holding "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past."); Farleigh v. Municipality of Anchorage, 728 P.2d 637, 640-41 (Alaska 1986) ("where a new rule serves to ensure defendants a fair trial, it must be retroactively applied at least to any case which was not finally disposed of at the time the rule was announced, provided that the defendant raised the point in the trial court."). In Kaatz v. State, 540 P.2d 1037, 1050 (Alaska 1975) we made the new comparative negligence system retroactively applicable to all cases in which the issue could be timely raised, namely: (a) in the retrial of Kaatz itself; (b) in any trial beginning after the date of the Kaatz opinion, regardless of when the cause of action arose; (c) in any case pending on direct appeal when the Kaatz opinion was issued, so long as the plaintiff had asserted his entitlement to comparative negligence at trial and had preserved the point as a point on appeal; and (d) in any trial in progress on the date of the Kaatz opinion. . AS 23.30.060 states: Election of direct payment presumed, (a) An employer is conclusively presumed to have elected to pay compensation directly to employees for injuries sustained arising out of and in the course of the employment according to the provisions of this chapter, until notice in writing of insurance, stating the name and address of the insurance company and the period of insurance, is given to the employee. (b) The notice shall be posted and kept on the premises of the employer or on the premises where the employer's operations are being carried on in three conspicuous places, at the office of the employer, at the mess house or boarding house if there is one, and in some conspicuous place on the premises or works. The notice shall be substantially in the following form, and the signature shall be witnessed by two witnesses: EMPLOYER'S NOTICE OF INSURANCE To the employees of the undersigned: You and each of you are hereby notified that the undersigned is insured in the . Insurance Company, whose address is . and that the period covered by the insurance.in accordance with the terms, conditions and provisions to pay compensation to employees of the undersigned for injuries received as provided in the Act of the State of Alaska, known as the "Alaska Workers' Compensation Act." Signed. Witness: . Moreover, the acts of an adjuster do not normally create a contract obligation with the insured. 16A J. Appelman, Insurance Law and Practice § 8839.25, at 93 (rev. ed. 1981) ("While insurance adjusters had a duty to their principals, the insurance companies, to perform whatever tasks were assigned to them, such duty did not serve to create a contractual obligation between them and the insureds.").

10403261

Daniel R. DeNARDO, Appellant, v. STATE of Alaska, Appellee

DeNardo v. State

1987-07-31

No. S-1260

453

457

740 P.2d 453

740

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:43:14.099706+00:00

CAP

Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

Daniel R. DeNARDO, Appellant, v. STATE of Alaska, Appellee.

Daniel R. DeNARDO, Appellant, v. STATE of Alaska, Appellee. No. S-1260. Supreme Court of Alaska. July 31, 1987. Rehearing Denied Aug. 26, 1987. Daniel R. DeNardo, Anchorage, pro se. Marc W. June, Birch, Horton, Bittner, Pestinger & Anderson, Anchorage, for ap-pellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

2176

13527

OPINION RABINOWITZ, Chief Justice. Daniel DeNardo appeals from the superi- or court's dismissal of his complaint with prejudice. The superior court grounded its dismissal on the doctrine of res judicata. We affirm. I. BACKGROUND. The State of Alaska terminated Daniel DeNardo's employment in 1978 at the request of the Alaska Public Employees Association (APEA). The collective bargaining agreement between APEA and the state then in effect for general government employees required the state to terminate any such employee who failed to comply with the agency shop provisions of the agreement upon APEA's request for termination. APEA requested DeNardo's termination based on his alleged failure to pay the APEA dues or agency fees he owed under the terms of the agreement. In July 1978, DeNardo filed unfair labor practice charges against APEA with the state Labor Relations Agency. Subsequent to a hearing held in October 1978, the agency issued a decision on January 8, 1979, finding DeNardo delinquent in his payment of agency shop fees at the time of his termination and therefore determining that the state had discharged him for just cause. DeNardo neither requested agency reconsideration of this decision nor appealed it to the superior court. In April 1980, DeNardo instituted suit in the superior court against APEA, its former director (Patrick Murphy), and the state for the "taking and conversion" of his fourteenth amendment property interest in employment. On September 2, 1980, the superior court entered summary judgment against him, dismissing the action with prejudice, based on his failure to appeal the agency decision. This court affirmed without opinion. DeNardo v. Murphy, Memorandum Opinion and Judgment No. 93 (Alaska, July 28, 1981). The United States Supreme Court denied certiorari and dismissed the appeal, DeNardo v. Murphy, 454 U.S. 1096, 102 S.Ct. 667, 70 L.Ed.2d 636 (1981), and thereafter also denied DeNardo's petition for rehearing. DeNardo v. Murphy, 455 U.S. 1038, 102 S.Ct. 1743, 72 L.Ed.2d 156 (1982). DeNardo filed a second action against the same defendants in federal district court in June 1982. The federal court held that "the Alaska state courts provided De-Nardo with a full and fair opportunity to present his claims, and the decisions of the Alaska Superior and Supreme Courts must be given res judicata effect." The federal court rejected DeNardo's arguments that the doctrine of res judicata should not apply because the prior Alaska decisions were void, because they were either erroneous or based on legal principles which have since been changed, and because Alaska's "savings statute" allowed him to bring the federal court action. DeNardo filed the present suit in superi- or court in April 1984, based upon the same facts as those involved in the prior actions. He now argues specifically that the agency decision is void because one of the board members who signed the decision was not present at the hearing and that another who participated in the decision had a conflict of interest. He appears to contend that these actions deprived him of due process and resulted in an unconstitutional impairment of his employment contract. The superior court dismissed the complaint with prejudice as barred by the doctrine of res judicata on January 24,1985. DeNardo subsequently filed this appeal. II. DOES RES JUDICATA PRECLUDE LITIGATION OF DeNARDO'S CLAIMS? DeNardo attempts to characterize. his claim as one for a denial of his due process rights, based on the Labor Relations Agency's failure to follow the proper procedures in regard to the hearing held on his unfair labor practice charges, and for an unconstitutional impairment of his employment contract. However, DeNardo has twice previously sued the state to recover money damages allegedly incurred as a result of his discharge from employment. The superior court in this case did not reach the merits of DeNardo's claims but disposed of them on res judicata grounds. Under the doctrine of res judica-ta, a judgment on the merits of the controversy bars subsequent actions between the same parties upon the same claim. Drickersen v. Drickersen, 546 P.2d 162, 169 (Alaska 1976) (quoting IB J. Moore, Moore's Federal Practice ¶ 0.405, at 621 (2d ed. 1980)); accord, Calhoun v. Greening, 636 P.2d 69, 71-72 (Alaska 1981); Engebreth v. Moore, 567 P.2d 305, 307 (Alaska 1977). The doctrine implements "the generally recognized public policy that there must be some end to litigation and that when one appears in court to present his case, is fully heard, and the contested issue is decided against him, he may not later renew the litigation in another court." Drickersen, 546 P.2d at 169 (citations omitted), quoted in Engebreth, 567 P.2d at 307. It is settled that res judicata precludes relitigation by the same parties, not only of claims raised in the first proceeding, but also of those relevant claims that could have been raised. Calhoun, 636 P.2d at 72; see also Pankratz v. State, Dep't of Highways, 652 P.2d 68, 74 (Alaska 1982). The claims extinguished by the first judgment include "all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction . out of which the action arose," State v. Smith, 720 P.2d 40, 41 (Alaska 1986) (quoting with approval Restatement (Second) of Judgments § 24(a) (1982)); a mere change in the legal theory asserted as a ground for recovery will not avoid the preclusive effect of the judgment. Id.; Pankratz, 652 P.2d at 74. Application of these principles of claim preclusion suggest that DeNardo cannot maintain the present action. His prior state court case, as well as the case brought in federal court, involved the same parties: DeNardo as plaintiff and the state as a defendant. Each arose from the same "transaction": DeNardo's discharge from employment in 1978 and the subsequent unfair labor practice proceeding before the Labor Relations Agency. The "nucleus of facts" and the evidence presented in this case would be identical to that which would have been adduced in the prior actions had they proceeded to trial. See Harris v. Jacobs, 621 F.2d 341, 343 (9th Cir.1980) (listing these as among the factors determining identity of the causes of action for purposes of res judicata). Our decisions make clear that the fact that DeNardo now frames his claim in terms of constitutional violations rather than tort or civil rights does not lift the bar to relitigation resulting from the first judgment. We also find the decision in Hixon v. Morse, 120 Ariz. 356, 586 P.2d 201 (Ct.App. 1978), persuasive on this issue. In Hixon, the plaintiff's claim arose from the termination of his worker's compensation benefits by administrative decision. The court of appéals had previously affirmed the dismissal of the complaint, holding that the trial court lacked jurisdiction because the plaintiff's remedy lay in requesting a hearing before the agency and that the complaint failed to state a claim upon which relief could be granted. See Hixon v. State Compensation Fund, 115 Ariz. 392, 565 P.2d 898, 899 (Ct.App.1977). In the subsequent action, the plaintiff embellished his complaint with additional allegations in an apparent attempt to correct the pleading deficiencies which the court of appeals had identified. See Hixon v. Morse, 586 P.2d at 202. The trial court granted defendants' motion for summary judgment on the ground that res judicata barred the claim, and the court of appeals again affirmed: Regardless of the additional allegations, appellant's claim arises solely from the termination of his workmen's compensation benefits by an administrative decision, for which the exclusive remedy for review lay with the Industrial Commission of Arizona. As such, it is barred by the judgment of dismissal on the identical underlying facts in the previous case. Id. at 202-03 (citations omitted). Cf. Southern Pac. Transp. v. Public Utils. Comm'n, 716 F.2d 1285, 1289 (9th Cir. 1983), cert. denied and appeal dismissed, 466 U.S. 936,104 S.Ct. 1908, 80 L.Ed.2d 457 (1984) (denial, without hearing or opinion, of petition for review of agency decision constitutes denial on the merits and is accorded res judicata effect). Because we have concluded herein that all of the prerequisites for application of res judicata have been met, DeNar-do cannot maintain his claim unless an exception to the doctrine allows continuation of this litigation. Such an exception exists with respect to a void judgment, which is subject to collateral attack. See Holt v. Powell, 420 P.2d 468, 471 (Alaska 1966). A judgment is void where the state in which the judgment was rendered had no jurisdiction to subject the parties or the subject matter to its control, or where the defendant was not given proper notice of the action and opportunity to be heard, or where the judgment was not rendered by a duly constituted court with competency to render it, or where there was a failure to comply with such requirements as are necessary for the valid exercise of power by the court. Id. (footnotes omitted). None of these conditions exists in the case at bar. Furthermore, it is well established that a decision is not subject to collateral attack if it is merely erroneous rather than void. See Restatement (Second) of Judgments § 17 comment d (1982); e.g., Moffat v. Moffat, 27 Cal.3d 645, 165 Cal.Rptr. 877, 882, 612 P.2d 967, 972 (Cal.1980) (en banc); Bresolin v. Morris, 86 Wash.2d 241, 543 P.2d 325, 328 (1975). Thus, even if the decision of the Labor Relations Agency were void because the agency committed the procedural errors alleged by DeNardo, the superior court judgment affirming the agency decision on the merits would then be erroneous, not void, and the judgment would still have res judicata effect. See Southern Pac. Transp., 716 F.2d at 1290 (rejecting argument that agency decision should not preclude subsequent action because agency had lacked jurisdiction, on grounds that supreme court's denial of review, not the agency decision itself, was given pre-clusive effect). In the case at bar, moreover, the initial superior court judgment affirmed the agency decision based on De-Nardo's failure to file a timely appeal; the validity or invalidity of the underlying agency decision is thus irrelevant to the validity of the subsequent affirmance. III. CONCLUSION. We conclude that the prerequisites for application of the doctrine of res judicata to DeNardo's claims have been met here. In DeNardo's original action, we affirmed the judgment of the superior court, which was a dismissal with prejudice. No persuasive legal argument has been advanced to permit DeNardo to re-open the original matter. DeNardo has had "a full and fair opportunity" to present his constitutional due process and impairment of contract claims to the state courts. He should have timely appealed the agency decision or made a collateral attack on the decision when he first filed suit in state court if he desired judicial consideration of these issues. Because DeNardo failed to raise them in the appropriate proceeding, he is barred from raising them now. We will not permit him to prolong this litigation by splitting his case and pursuing a series of individual claims. The record here represents precisely the circumstance in which principles of res judicata should apply. AFFIRMED. . AS 44.62.520 provides, in relevant part, that an agency decision becomes effective thirty days after delivery or mailing to the respondent unless reconsideration is ordered within that time. The agency's power to order reconsideration upon petition of a party expires at the end of that thirty-day period. AS 44.62.540. A party's failure to seek agency reconsideration does not affect his right to appeal to the superior court, AS 44.62.560, but that appeal must also be filed within thirty days of the delivery or mailing of the agency decision (or within thirty days of the decision upon reconsideration). Alaska App.R. 602(a)(2) (previously Rule 45(a)(2)); see Owsichek v. State, Guide Licensing & Control Bd., 621 P.2d 616, 621 & n. 9 (Alaska 1981) (appellate rules supersede statutory provision allowing 60 days to file appeal to superior court). Thus, the time for DeNardo to seek reconsideration or review of the agency decision expired in February 1979. . AS 44.62.500(a)(2) provides that a member of an administrative agency subject to this rule who has not heard the evidence in a contested case before the agency may not vote on the decision. . This conclusion gains support from a factually analogous case in which a federal court observed that res judicata would apply where an employee unsuccessfully first sues for wrongful discharge and then files a second action alleging that his discharge violated his constitutional rights, because "the wrong for which vindication is sought in the later suit is essentially the same wrong which prompted the first action." Solar v. Merit Sys. Protection Bd., 600 F.Supp. 535, 536 (S.D.Fla.1984) (ultimately holding res judicata inapplicable on other grounds). . The same reasoning applies with respect to our affirmance of the superior court's decision.

10409716

STATE of Alaska, Petitioner, v. Kimberly PATTERSON, Respondent

State v. Patterson

1987-07-31

No. S-1316

944

949

740 P.2d 944

740

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:43:14.099706+00:00

CAP

Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

STATE of Alaska, Petitioner, v. Kimberly PATTERSON, Respondent.

STATE of Alaska, Petitioner, v. Kimberly PATTERSON, Respondent. No. S-1316. Supreme Court of Alaska. July 31, 1987. Robert D. Bacon and David Mannheimer, Asst. Attys. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Harold M. Brown, Atty. Gen., Juneau, for petitioner. Linda K. Wilson, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for respondent. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

3789

23486

OPINION RABINOWITZ, Chief Justice. We granted this petition for hearing to address the question of whether the statutory definition of the insanity defense in AS 12.47.010(a) encompasses both prongs or only the first prong of the traditional M'Naghten insanity defense. I. FACTS AND PROCEEDINGS. Kimberly Patterson was charged with first-degree robbery for pointing a loaded gun at a man at the Anchorage International Airport and demanding money from him. At trial, Patterson did not contest the state's proof that she committed these acts, but instead relied on the affirmative defense of insanity, arguing that she was not guilty by reason of insanity under AS 12.47.010(a) because she was "unable, as a result of mental disease or defect, to appreciate the nature and quality of [her] conduct." The jury found Patterson "guilty but mentally ill" under AS 12.47.-030(a). The superior court instructed the jury that in order to find Patterson not guilty by reason of insanity, it had to find that, because of a mental disease or defect, she did not understand that she was performing the physical acts which comprise the elements of the crime with which she was charged; that is, that she was threatening another person with a gun in an attempt to take his money. The jury apparently found that Patterson did not come within this interpretation of AS 12.47.010(a), and returned a verdict of "guilty but mentally ill" under AS 12.47.030(a). On appeal Patterson argued, inter alia, that the Alaska Legislature's 1982 revisions of the statutory scheme relating to mental disease or defect as it affects criminal responsibility, AS 12.47.010-.130, violate her state and federal constitutional guarantees of due process, equal protection, and protection against cruel and unusual punishment. She believes that AS 12.47.010 permits her to be adjudged guilty in the absence of any conscious wrongdoing or criminal intent on her part. The court of appeals rejected this argument, noting that the insanity defense exists separate from, and in addition to, the defendant's right to produce psychiatric evidence to show diminished capacity under AS 12.-47.020, and holding that "[t]he defendant cannot be found guilty or guilty but mentally ill unless the state first proves all of the elements of the offense, including the mens rea, beyond a reasonable doubt." Patterson v. State, 708 P.2d 712, 714 (Alaska App.1985). The court of appeals did, however, reverse Patterson's conviction on the ground that one of the superior court's jury instructions merged the insanity defense with the element of mens rea required for a robbery conviction, making it impossible to determine whether the jury actually found that Patterson acted with the requisite mens rea. Id. at 714-15. The court of appeals then went on to rule that the superior court in its jury instructions had interpreted AS 12.47.010(a) too narrowly. Id. at 715-17. The superior court read AS 12.47.010(a) to incorporate only the first prong of the traditional M'Nagkten insanity test, that the defendant did not understand the basic nature and quality of his or her conduct. Id. at 716. This reading of the statute thus excluded the second prong of the M'Naghten test, which allows the defendant to be found not guilty by reason of insanity if the defendant did not understand that the conduct was wrong. The court of appeals held that the correct interpretation of AS 12.47.-010(a) included both prongs of the M'Naghten test — that defendant could be found not guilty by reason of insanity either if the defendant was not aware of the physical acts he or she was performing, or if he or she did not understand the wrongfulness of those acts. Id. at 717 & n. 3. We subsequently granted the state's petition for hearing from this ruling of the court of appeals concerning the insanity test. II. DOES THE STATUTORY DEFINITION OF THE INSANITY DEFENSE IN AS 12.47.010(a) INCORPORATE BOTH PRONGS OR ONLY THE FIRST PRONG OF THE M'NAGHTEN TEST? The state argues that the court of appeals' ruling that AS 12.47.010(a) encompasses both prongs of the M'Naghten test cannot be reconciled with the statute's unambiguous legislative history. It maintains that the court erroneously invoked the canon of construction that a re-enacted statute is presumed to incorporate the judicial interpretation which preceded its re-enactment, because the legislature's expressed intent conflicts with such prior judicial interpretation. The state contends that the position taken by this court in Chase, that the two prongs of the M'Naghten test are indistinguishable, was rejected by the legislature, and, specifically, that the House Judiciary Committee report expressly disavowing the second prong of M'Naghten deserves particular interpretive weight since the House voted to adopt it as the official commentary on the bill and the Senate voted to publish it. The state also points out that, prior to reporting the bill and commentary to the full House, the House Judiciary Committee directed written questions concerning the bill's intended effect to the executive branch, and received a response from the Department of Law which reaffirmed the executive's intent in proposing the bill to enact only the first M'Naghten prong. We think the state's arguments are persuasive and thus disapprove of the court of appeals' construction of AS 12.47.010(a). The House Judiciary Committee report without doubt supports the state's position that the legislature intended to adopt only the first prong of M'Naghten. See supra note 8. The state's second contention, that the legislature in re-enacting the insanity defense should not be presumed to have endorsed the judicial gloss of Chase gains credence from the report's avowed intent that the bill should work a significant change in the law by restricting the types of mental diseases or defects to which the insanity defense will apply. In addition, the executive branch, which proposed the statutory revision which led to the enactment of AS 12.47.010(a), formally indicated its view that the principal problem at which the change was aimed is that "the definition of insanity has been overly broadened." Department of Law Letter at 1. It was also noted that "a defendant's subjective appreciation that what he is doing is wrong . is only in rare instances required by the criminal law," and that [t]he proposed bill draws the line in the same way for the insanity defense. A person may claim that he did not understand that he was committing the acts that constituted the crimes. He may not claim, however, that his mental illness caused him not to appreciate the wrongfulness of his conduct. Id. at 2. We consider the foregoing to contradict the view expressed in Chase that the ability to know the nature and quality of an act is indistinguishable from the ability to understand its wrongfulness, see Chase, 369 P.2d at 1002-03, and thereby to substantiate the state's argument that the legislature in enacting AS 12.47.010(a) intended to reject Chase. A final argument suggested by the state which militates against Patterson's position is that construing AS 12.47.010(a) to include the second M'Naghten prong would cause it in large part to duplicate AS 12.47.-030(a), which provides that a "guilty but mentally ill" verdict should be rendered if a defendant lacks the "substantial capacity" to appreciate the wrongfulness of his or her conduct. Thus, if Patterson's position were accepted, a defendant unable to appreciate the wrongfulness of his or her conduct might either be acquitted under section .010(a), or convicted, subject to mandatory treatment provisions, under section .030(a). In light of the principle that "[wjhere a reasonable construction of a statute can be adopted which realizes the legislative intent and avoids conflict or inconsistency with another statute this should be done," Gordon v. Burgess Constr. Co., 425 P.2d 602, 604 (Alaska 1967) (footnote omitted), AS 12.47.010(a) should be construed to exclude the second M'Naghten prong, which the legislature elected to make part of the present "guilty but mentally ill" provision rather than to retain as part of the statutory definition of insanity. If the legislature had intended AS 12.47.010(a) to encompass a defendant's capacity to appreciate the wrongfulness of his or her conduct, it would have had little reason to enact that language in the AS 12.47.030(a) definition of "guilty but mentally ill." Patterson offers no contrary authority to support her general endorsement of the court of appeals' reasoning, or to substantiate her position that this court should not adhere to the expressions of legislative intent ascertainable from the House committee's report and the Department of Law Letter. This court in the past has approved the view that the intent of the legislature as revealed by the report of the standing committee which investigated the desirability of the statute under consideration is highly persuasive evidence of the meaning of the statute. Furthermore, extrinsic aids to statutory construction such as committee reports arguably need not be invoked to resolve this case since the words of AS 12.47.010(a) clearly embody the first M'Naghten prong alone, and resort to such aids presupposes ambiguity in the statute itself. We also find that Patterson's specific rebuttal arguments lack merit. First, she argues that the state's reliance on the Department of Law Letter is misplaced, based on statements in the letter that "the bill intentionally uses the terms of art found in the M'Naghten test . [in order] to effectuate the goals of the bill, and to insure against any tendency to broaden the test for insanity." See Department of Law Letter at 3. Patterson asserts that the key "terms of art" of M'Naghten are that the defendant "know" the nature and quality of his "acts," and concludes that because the legislature replaced them with "appreciate" and "conduct," respectively, it therefore intended to broaden the test originally proposed by the Department of Law. This argument is unsupportable because the letter does not specify what is meant by "the terms of art found in the M'Naghten test," and because the bill substantially does adopt the first prong of the M'Naghten formulation. Even if Patterson were correct that "know" and "acts" are the key terms, there is no indication that the substitution of "appreciate" and "conduct" was intended to have a broadening effect. On the contrary, the House committee's report, as previously noted, states that the statutory revision was intended to make significant changes in Alaska's laws pertaining to insanity, one of which was to "restrict □ the types of mental diseases or defects that will provide a complete defense to criminal liability." Since no material amendments to the bill were even proposed subsequent to the issuance of the Department of Law Letter, the substituted terms must have been incorporated in the bill prior to receipt of the letter. It thus seems reasonable to presume that the letter reflects the legislature's understanding of the statute it passed. Second, Patterson attempts to reconcile "the incongruity of the plain meaning of the statutory terminology ultimately chosen by the legislature with the seemingly inconsistent expressions of legislative intent in the commentary and committee report" by suggesting that these legislative materials "refer to the Department of Law's use of the exact terms of the M'Naghten test 'know' and 'act' and not the ultimate terms of the statute 'appreciate' and 'conduct'." However, the fact that the House voted to adopt the committee report as the official commentary on June 2, 1982, subsequent to the Department's letter and when the bill was already in its final form, negates Patterson's contention that the commentary does not reflect the legislature's intent with respect to the language as enacted. Confirming this point is the letter transmitting the report from the Judiciary Committee to the Speaker of the House, which described the report as "a commentary and sectional analysis of the bill as it passed from the House Judiciary Committee on May 29, 1982 . [which] should be helpful in identifying the provision of the bill and clarifying the intent of each section." 3 House Journal, Supplement No. 63 at 1 (1982) (emphasis added); cf. Hafling v. Inlandboatmen's Union, 585 P.2d 870, 874 (Alaska 1978) (letter of intent accompanying bill to amend statute considered indicative of amendment's meaning). In summation, the foregoing leads us to hold that AS 12.47.010(a) enacts only the first prong of the M'Naghten test. REVERSED and REMANDED to the court of appeals with directions to remand to the superior court for a new trial in accordance with the foregoing and with part I of the opinion of the court of appeals. . Under the rule derived from M'Naghten ⅛ Case, 8 Eng.Rep. 718 (H.L.1843), Patterson could be found not guilty by reason of insanity: (1) if she did not appreciate the quality and nature of her conduct, or (2) if she did not understand the wrongfulness of her conduct. See Schade v. State, 512 P.2d 907, 912 (Alaska 1973); Chase v. State, 369 P.2d 997, 998 n. 2 (Alaska 1962), overruled in part, Fields v. State, 487 P.2d 831, 836 (Alaska 1971). . The facts in this case are not in dispute and are more fully developed in Patterson v. State, 708 P.2d 712 (Alaska App.1985). We will reiterate only those facts relevant to the determination of the question presented here. . AS 12.47.010 provides in relevant part: Insanity excluding responsibility, (a) In a prosecution for a crime, it is an affirmative defense that when the defendant engaged in the criminal conduct, the defendant was unable, as a result of a mental disease or defect, to appreciate the nature and quality of that conduct. [Emphasis in text of statute added.] . AS 12.47.030 provides in relevant part: Guilty but mentally ill. (a) A defendant is guilty but mentally ill if, when the defendant engaged in the criminal conduct, the defendant lacked, as a result of a mental disease or defect, the substantial capacity either to appreciate the wrongfulness of that conduct or to conform that conduct to the requirements of law. A defendant found guilty but mentally ill is not relieved of criminal responsibility for criminal conduct and is subject to the provisions of AS 12.47.050. [Emphasis in text of statute added.] AS 12.47.-050 in part directs the Department of Corrections to provide mandatory mental health treatment to a defendant found guilty but mentally ill. .AS 12.47.020 provides in part: Mental disease or defect negating culpable mental state, (a) Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did or did not have a culpable mental state which is an element of the crime. However, evidence of mental disease or defect that tends to negate a culpable mental state is not admissible unless the defendant . files a written notice of intent to rely on that defense. (b) When the trier of fact finds that all other elements of the crime have been proved but, as a result of mental disease or defect, there is a reasonable doubt as to the existence of a culpable mental state that is an element of the crime, it shall enter a verdict of not guilty by reason of insanity. . See supra note 1. . This question is one of general statutory interpretation, which this court has special competency to resolve. State v. Dupere, 709 P.2d 493, 495 (Alaska 1985), modified on other grounds, 721 P.2d 638 (Alaska 1986). We are free to substitute our judgment for that of the trial court in reviewing issues of statutory interpretation. See Norton v. Alcoholic Beverage Control Bd., 695 P.2d 1090, 1092 (Alaska 1985); State, Commercial Fisheries Entry Comm'n v. Temple-ton, 598 P.2d 77, 81 (Alaska 1979). . The court of appeals quoted the following excerpt from the House Judiciary Committee report relevant to AS 12.47.010(a): An example of a person who could successfully establish the elements of the revised insanity defense is the defendant who, as a result of a mental disease or defect, is unable to realize that he is shooting someone with a gun when he pulls the trigger on what he believes to be a water pistol, or a murder defendant who believes he is attacking the ghost of his mother rather' than a living human being. Conversely, this defense would not apply to a defendant who contends that he was instructed to kill by a hallucination, since the defendant would still realize the nature and quality of his act, even though he thought it might be justified by a supernatural being. Such a defendant could be determined guilty but mentally ill under AS 12.47.030. 3 House Journal, Supplement No. 64 at 8 (1982) (emphasis in original) [hereinafter "House Supp. No. 64"], quoted in Patterson, 708 P.2d 716-17. (The commentary was originally published in House Supplement No. 63; the corrected version, published in House Supplement No. 64, contains no relevant changes.) However, the court of appeals omitted to acknowledge the immediately preceding paragraph of the same commentary: By limiting the [revised insanity] defense to cases where the defendant is unable to appreciate the nature and quality of his conduct, this legislation enacts one branch of the M'Naghten test of insanity. That portion of the M'Naghten test which defines legal insanity as including situations where the defendant did not know the wrongfulness of his conduct is specifically rejected by this legislation and excluded from the revised definition of legal insanity. The fact that the defendant did not appreciate the wrongfulness of his conduct, nevertheless, may be relied upon to establish that the defendant was "guilty but mentally ill" under AS 12.47.030. Id. at 7-8 (emphasis added). . See 3 House Journal 2317-18 (1982) (voting to adopt commentary); 2 Senate Journal 1720 (1982) (voting to include reference to commentary in the journal). . This letter sent by the Attorney General to the chairperson of the House Judiciary Committee stated in part: The bill has abolished the concept of attempting to reconstruct whether a defendant appreciated that his actions were wrong; it has done this by using only the first part of the M'Naghten test as the legal standard. The idea behind this omission is to preserve the original intent of the M'Naghten formulation — that the defense of insanity is restricted to those persons who, because of extreme mental illness, completely lack the capacity to evaluate any of their actions in terms of moral right or moral wrong. Letter from Wilson L. Condon (by Daniel W. Hickey, Chief Prosecutor, Department of Law Criminal Division) to Ramona Barnes (May 17, 1982) at 2 (emphasis in original) [hereinafter "Department of Law Letter"]. See also id. at 12 (In adopting the proposed bill, Alaska "would be the only state to keep the insanity defense but narrow it, restricting its application to the first half of the M'Naghten Rule_"). .See House Supp. No. 64 at 6. The state makes another persuasive, common-sense argument that the court of appeals erred in its unwillingness to acknowledge the express legislative intent to adopt a policy different from that laid down in Chase: It is one thing to recognize that, when the Legislature prohibits something called 'burglary" or "theft," it legislates against a common-law background which extends back for centuries and encompasses thousands of cases. It is quite another thing to hold, as the court of appeals has done here, that a comprehensive revision and codification of an area of the law is constrained, apparently forever, by a single common-law policy decision made without benefit of adversary briefing. (This court acknowledged in Chase that the question presented therein regarding a jury instruction defining "insanity" was not included in the points on appeal in that case. See 369 P.2d at 1002.) . See Roderick v. Sullivan, 528 P.2d 450, 454 (Alaska 1974); e.g., Wien Air Alaska v. Arant, 592 P.2d 352, 360 & n. 32 (Alaska 1979) (citing congressional committee report as indicating purpose of federal legislation); Starr v. Hagglund, 374 P.2d 316, 319 (Alaska 1962) (committee reports to constitutional convention may be relied on in constitutional interpretation); cf. Miller v. Federal Mine Safety & Health Review Comm'n, 687 F.2d 194, 195 (7th Cir.1982) (absent contrary legislative history, a clear statement in the principal committee report is powerful evidence of legislative purpose and may be given effect even if it is imperfectly expressed in statutory language); see generally 2A C. Sands, Sutherland Statutory Construction [hereinafter "Sutherland"] § 48.06 (rev. 4th ed. 1984). . See Miller v. Monrean, 507 P.2d 771, 776 & n. 13 (Alaska 1973) ("Any ambiguity in the language . is clarified by the report of the House Judiciary Committee pertaining to the . amendment setting forth the present provisions. Reports of legislative committees may be regarded as an exposition of the legislative intent where otherwise the meaning of a statute is obscure.") (emphasis added and footnote integrated). Given the general principle of expres-sio unius est exclusio alterius, see Sutherland § 47.23, unless the terms of AS 12.47.010(a) are considered ambiguous, inclusion of the second M'Naghten prong certainly should not be inferred. . House Supp. No. 64 at 6 (emphasis added). See also Department of Law Letter at 8 ("The new bill tightens the insanity defense substantially."). . See 3 House Journal 2317-18 (1982); 1981-1982 Senate Bill History 814. . Cf. State, Div. of Agrie, v. Fowler, 611 P.2d 58, 60 (Alaska 1980) (letter of transmission from governor to committee considered relevant in interpreting statute). See generally Sutherland § 48.05, at 306 (courts have referred to messages of the executive to determine legislative intent in construing ambiguous statutes). . See 3 House Journal 2317-18 (1982); 1981-1982 Senate Bill History 814. . Respondent Patterson also argues that construing AS 12.47.010(a) to encompass only the first prong of M'Naghten renders the statute unconstitutional, and that the definition of "guilty but mentally ill" provided by AS 12.47.-030(a) is likewise unconstitutional. We decline to address the issue of the constitutionality of the omission of the second prong of M'Naghten from AS 12.47.010(a). In our view it will not become ripe for judicial review unless the jury again finds Patterson guilty but mentally ill after her new trial. Cf. 13A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3532.2, at 137 (1984) ("Ripeness doctrine reflects the determination that courts should decide only 'a real, substantial controversy,' not a mere hypothetical question."). We consider it appropriate to pass only on the constitutionality of a statute that is essential to the determination of the case presented. See Perry v. State, 429 P.2d 249, 252 (Alaska 1967).

10359202

William L. FOSTER, Marty Miksch, Far West Enterprises, Ltd., a Limited Partnership, d/b/a Perl Island Lodge, Appellants, v. Walter G. HANNI, Stephen W. Anderson, Ervin K. Terry, individually and as members of the Perl Island Ranch Committee, Perl Island Ranch Committee, Perl Island Ranch, a General Partnership, and Harley D. Hess, Appellees

Foster v. Hanni

1992-11-06

No. S-4347

164

176

841 P.2d 164

841

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:43:20.157473+00:00

CAP

Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

William L. FOSTER, Marty Miksch, Far West Enterprises, Ltd., a Limited Partnership, d/b/a Perl Island Lodge, Appellants, v. Walter G. HANNI, Stephen W. Anderson, Ervin K. Terry, individually and as members of the Perl Island Ranch Committee, Perl Island Ranch Committee, Perl Island Ranch, a General Partnership, and Harley D. Hess, Appellees.

William L. FOSTER, Marty Miksch, Far West Enterprises, Ltd., a Limited Partnership, d/b/a Perl Island Lodge, Appellants, v. Walter G. HANNI, Stephen W. Anderson, Ervin K. Terry, individually and as members of the Perl Island Ranch Committee, Perl Island Ranch Committee, Perl Island Ranch, a General Partnership, and Harley D. Hess, Appellees. No. S-4347. Supreme Court of Alaska. Nov. 6, 1992. Rehearing Denied Dec. 8, 1992. James L. Hopper, Anchorage, Arthur R. Langvardt, Hastings, Neb., and James S. Mitchell, Omaha, Neb., for appellants William L. Foster, Marty Miksch and Far West Enterprises, Ltd. Michael W. Sewright, Burr, Pease & Kurtz, Anchorage, for appellees Walter G. Hanni, Stephen W. Anderson, Ervin K. Terry, Perl Island Ranch Committee and Perl Island Ranch. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

7528

45824

OPINION MOORE, Justice. This case involves a challenge by Walter Hanni, Stephen Anderson, Ervin Terry, the Perl Island Ranch and the Perl Island Ranch Committee (collectively referred to as "Hanni") to the sale of a leasehold prop erty interest by Harley Hess to William Foster and others. Hanni originally sold the property at issue, a remote lot on which a lodge is built, to Hess. As part of this sale, Hanni was given a right of first refusal to purchase the property interest should Hess ever offer to sell it. The superior court granted Hanni's motion for summary judgment, holding that the transfer from Hess to Foster was void because Hanni was not accorded the right of first refusal. Because we conclude that several genuine issues of material fact exist, and that the superior court misapplied the law in several instances, we reverse the superior court's entry of summary judgment and remand this case for further proceedings. I. FACTS AND PROCEEDINGS In 1977 and 1978, Hess sold a portion of his Perl Island real property to Hanni, Anderson and Terry, who formed Perl Island Ranch, a general partnership. Hanni, Anderson and Terry created a development plan for the real property they had purchased. In September 1978, Hess, Hanni, Anderson and Terry executed a declaration which created the Perl Island Ranch Committee ("Ranch Committee"), consisting of all four declarants. The declaration also established 35 undivided interests in the Ranch Development. The owner of each interest was entitled to an "Area Use Lease," which entitled the holder to approximately one acre which could be used for the construction of a single-family dwelling, for up to 100 years. As a result of an exchange of deeds with Perl Island Ranch, Hess acquired two l/35th interests in the Ranch Development. Only one of these interests, that which entitled Hess to the lease for Use Area No. 1, is at issue in this case. When the Ranch Committee delivered to Hess the lease for Use Area No. 1, it also delivered a "Lodge Lease" which granted Hess the right to use the Ranch Development, except for other use area parcels, for lodge operations. Paragraph 5 of the Lodge Lease provided that "[tjhis lease is deemed personal to Lessee and shall not be hypothecated, sold, assigned, or in any way encumbered by Lessee without the express consent of Lessor in writing." Paragraph 6 stated that "Lessor shall have the first right to meet any bona fide offer to purchase Lessee's undivided interest related to the lodge operation." The Lodge Lease ran from year to year, with Hess to retain all income realized. Hess built a lodge on Perl Island in 1985. In May 1988, Hess listed his interest in Use Area No. 1 for sale with Active Realty. Foster, who is general partner of Far West Enterprises, Ltd. ("Far West"), a Nebraska limited partnership, made a written offer to purchase Hess's property for $115,000, conditioned upon bank financing and other terms set forth in that offer. Hess accepted this offer on September 11, 1988. On September 15, Hess notified Hanni, Anderson and Terry of his listing agreement with Active Realty. This agreement stated that Hess would provide owner financing. On September 19, Terry sent to the realtor copies of the Declaration, Area Use Lease No. 1, Lodge Lease and other documents pertaining to the Ranch Development, and requested that the realtor provide a copy of the earnest money agreement between Hess and Foster. On September 20, the realtor gave Terry a copy of the earnest money agreement. Hanni, Anderson and Terry elected not to meet the terms of the offers which were described in the listing agreement and the earnest money agreement. In late November, Anderson and Terry telephoned Foster to indicate their approval of the transfer of the Lodge Lease to him, their eagerness to have him as the new lodge owner, and their desire to have him implement certain wildlife programs. According to Foster, they urged him to further develop the lodge property. On December 27, Hanni wrote the other Perl Island lot owners, stating that "we feel that it may be an asset to the island to have a lodge operating. We, therefore, are in favor of approving the issuance of the Lodge Lease to Bill Foster at no cost." Hanni then wrote to Hess's attorney, asking him to draft a new Lodge Lease in favor of Foster. The Ranch Committee retained at torney Michael Sewright, also a lot owner, to handle revision of the Lodge Lease in accordance with their prior discussions with Foster. Because Foster was unable to arrange bank financing, Hess offered to finance Foster's purchase, as he had offered in the listing' agreement. Foster accepted this offer and agreed to pay $30,000 as a down payment. The original purchase price was allocated as follows: (a) $60,000 for Hess's undivided l/35th interest in the Ranch Development, together with all buildings and improvements located in Use Area No. 1, with Foster's $30,000 down payment to be credited toward this portion of the purchase price, and (b) $55,000 for the assignment by Hess of Area Use Lease No. 1 and the Lodge Lease, this sum evidenced by a separate agreement requiring 10 annual installments of $7,495 each. On March 21, 1989, Hess and Foster executed an Agreement of Sale of Real Property to Foster for Hess's interest in Use Area No. 1. A subsequent agreement, dated April 2, 1989, obligated Hess to "secure all necessary consents to the assignment of said leases to Buyer, and to the Buyer's future exercise of Seller's rights under said leases." On April 2, Foster paid Hess $10,000 of the down payment to enable Hess to remove an encumbrance and forestall a pending judicial sale of the property. After receipt of this money, Hess gave possession of the property to Foster who assumed possession on or about April 16. Foster paid the $20,000 balance on the down payment on April 28, and Hess delivered to Foster his warranty deed conveying his undivided l/35th interest in the Ranch Development. On April 15, Foster met with Terry in Anchorage. They discussed Foster's plans for the lodge operation, details involving ownership of Perl Island Ranch property, and the financial commitments which Foster had made and was intending to make concerning further lodge development. Terry reiterated that the Ranch Committee wanted a new Lodge Lease rather than merely an assignment by Hess of the old lease. Foster agreed to this. Terry later learned from an agent of a title insurance company that the terms of Foster's impending purchase might be different from the terms which were stated on the earnest money agreement. On April 19, Sewright wrote to Foster's attorney, Arthur Langvardt, expressing his clients' belief "that Mr. Foster's present offer is different than the one my clients were informed of last fall, when I understood Mr. Foster talked with them." Following receipt of this letter, Langvardt and Sewright had several telephone conversations concerning Perl Island Lodge. On May 3, they apparently spoke twice concerning the provisions of the new Lodge Lease. During these discussions, the parties agreed that Hanni, Anderson and Terry would enter into a new Lodge Lease with Foster upon Foster's fulfillment of certain conditions such as increasing his aviation liability insurance to $5 million, executing an indemnity agreement in favor of the Ranch Committee, providing the Ranch Committee with copies of the conveyance and purchase documents, and stocking one of the ponds on the island with fish to prevent depletion by guests of the lodge. Sewright did not indicate that his clients had an interest in acquiring the property. Shortly after Foster took possession of the lodge, the oil slick caused by the wreck of the Exxon Valdez spread to the island. On April 20, Exxon expressed to Foster its interest in using the lodge property during its clean-up operations. Exxon subsequently agreed to pay Foster $4,500 per day for use of the lodge to accommodate Exxon personnel and to establish a communications site. On May 8, Foster and the Ranch Committee entered into an "Agreement Re: Interim Use of Perl Island Property by William L. Foster." In this agreement, the Ranch Committee recognized and approved Exxon's use of the lodge facility and the common air strip. Foster was required to deliver to Sewright "all documentation of agreements, including deeds, contracts, and memoranda of understanding, between himself and Mr. Hess and Exxon or any of Exxon's contractors relating to the use of or an interest in the Perl Island proper-ty_" Foster was also required to maintain and repair the island's airstrip in safe and suitable condition, provide additional insurance at a cost of $5,000, and prevent waste or damage to any of the Perl Island Ranch property. Foster did all of these things. The parties disagree over whether Foster delivered the documents before or after he was given the agreement for interim use of the property. According to Foster, Hanni told him on May 15 that "we've decided to go 180 degrees on you . and that [Hanni] was envious of [Foster's] contract with Exxon." Foster claims that Hanni further stated that Foster was a "Johnny come lately" who was going to make a "windfall profit" by "falling into a pile of $1,000 bills." Hanni advised him that Hanni, Anderson and Terry wanted a "split of the proceeds" for themselves or else they were going to cause legal troubles by whatever means they could. Hanni handed him a document which purported to terminate the permit for Exxon's use of the property. Hanni also produced, and unsuccessfully attempted to have Foster sign, an "amended" interim permit which was exactly the same as the existing permit except that it gave one-half of the gross receipts from Exxon to Hanni, individually. After threatening to terminate Foster's interim use permit if he would not sign the new permit giving Hanni, Anderson and Terry one-half of the Exxon money, Se-wright wrote the legal department of Exxon on May 19 and May 23, instructing Exxon to pay Hanni, Anderson and Terry the compensation earned under the agreement between Foster and Exxon. In response, Foster filed a complaint in superior court which sought to enjoin Hanni, Anderson and Terry, individually and as members of the Perl Island Ranch Committee, from further interference with his Exxon contract, compel them to consent to the assignment of Hess's Lodge Lease, and enjoin them from further interference with Foster's peaceable enjoyment of the property. Foster also sought a declaratory judgment as to the legal relationships between the parties. Hanni simultaneously filed a complaint for injunctive relief and damages against Foster, Marty Miksch, Far West and Exxon, alleging that they were trespassers and possessed the island property "contrary to plaintiffs' ownership interests in the property and reserved rights of consent, first right of refusal, and reserved rights to commercially develop the property for lodging." The actions were consolidated by order of the trial court. Following a hearing, the superior court denied cross-motions for temporary restraining orders. Hanni then filed an answer and a counterclaim which incorporated the allegations in his original complaint. Hanni also filed a motion requesting summary judgment on several different issues. Foster, Miksch and Far West (hereinafter "Foster") filed their answer and a counterclaim for tortious interference. They also filed a motion for partial summary judgment, requesting the court to find that Hanni had no claim to the "specific monies owed by Exxon Corporation" to Foster. Judge Victor Carlson heard oral argument on the motion for summary judgment, and announced from the bench that Hanni's motion for summary judgment was granted, and that Foster's motion for partial summary judgment was denied. Judge Carlson did not provide an explanation for these decisions. Judge Carlson then signed an order of summary judgment which ordered Exxon to immediately depos it with the court the full amount it owed for its use of the Perl Island Property, including prejudgment interest. He ordered that all of that sum in excess of $130,000, and accrued prejudgment interest on $130,000, was to be paid to the Perl Island Ranch Committee and charged against the court account for this matter. The sum remaining in the court registry was to be placed in an interest-bearing, account and was subject to further application by the parties. Exxon Corporation deposited a sum of $238,584.16 with the court. Soon thereafter, $85,000 of that sum was disbursed to Hanni in accordance with the' court's instructions. Hess first appeared in this case with his "Stipulation for Entry of Judgment" dated May 30, 1990. This document, signed by Hess and Sewright, purports to allow judgment to be entered against Hess to the same extent as would be entered against Foster, Miksch, Perl Island Lodge and Far West Enterprises. Upon Hanni's "Motion for Entry of Judgment" and this stipulation, the trial court entered a judgment against Foster, Miksch, Far West and Hess. The court held that the transfer of the property by Hess to Foster was in violation of the right of first refusal contained in the Lodge Lease, and that the transfer was therefore null and void. The court also found that the transfer resulted in an irrevocable option at law in Hanni to elect to purchase the property, that Hanni had elected to exercise that option, and that Hanni was therefore entitled to specific performance of the right of first refusal. Hanni was given the right to receive legal assignment of the Lodge Lease by consenting to that assignment. Hess was ordered to execute all documents required to accomplish the specific performance to which Hanni was found entitled. The appellants were also "permanently enjoined and forever prevented from entering, using, or possessing any part" of the property at issue in this case. By application dated August 29, 1990, Hanni asked that the balance of the Exxon money be awarded to him. The court granted Hanni's application in a supplemental judgment dated October 26, 1990. On that same date, the court denied Miksch's motion for summary judgment that, as a limited partner, he was not individually liable. By order of September 5, 1990, the court summarily awarded various items of "expense" to Hanni, as well as $20,000 in "punitive sanctions." The court also signed another order imposing sanctions upon Foster pursuant to Alaska Rule of Civil Procedure 37(a)(4). The trial court directed the entry of final judgment. The trial court also entered an order confirming its entry of judgment against Miksch. The court awarded $2,500 in costs and attorney's fees to Hanni, and $1,200 in costs and attorney's fees to Hess. This appeal followed. II. DISCUSSION Foster challenges several aspects of the superior court's handling of this case. He argues that the court erred in awarding summary judgment, in denying his motion for partial summary judgment, in entering the judgment, in entering the supplemental judgment, in denying Miksch's motion for summary judgment as to Miksch, and in ordering him to pay certain "expenses and sanctions." A. DID THE SUPERIOR COURT ERR IN GRANTING SUMMARY JUDGMENT TO HANNI ON THE BASIS THAT HIS RIGHT OF FIRST REFUSAL IN THE LODGE LEASE WAS VIOLATED? Hanni's motion for summary judgment alleged that the assignment by Hess to Foster was void because it violated Hanni's right of first refusal. Hanni asserted that the assignment therefore gave him an irrevocable option at law to purchase Hess's rights upon the same terms as the purported purchase of Foster. Hanni declared his intention to exercise this option. He claimed that he was entitled to "receive all right, title and interest in said property as of the date of Mr. Hess' [sic] sale of the property to Mr. Foster in 1989, including any and all compensation owed for use of the property by the plaintiffs thereafter." Despite Foster's defenses, Judge Carlson summarily granted Hanni's request for summary judgment, stating that "there are no genuine issues of material fact with regard to [Hanni's] motion" for summary judgment. Foster challenges that decision, claiming that there existed several genuine issues of material fact, and that the appellees were not entitled to judgment as a matter of law. In reviewing an order of summary judgment, this court must reverse the order if the pleadings and evidence presented reveal either the existence of any genuine issues of material fact or that the moving party is not entitled to judgment as a matter of law. Jennings v. State, 566 P.2d 1304, 1308 (Alaska 1977); Moore v. State, 553 P.2d 8, 15 (Alaska 1976). 1. Did there exist genuine issues of material fact? a. Is Hanni estopped from asserting the right of first refusal? Foster asserts that Hanni is es-topped from asserting the right of first refusal. Before examining whether Hanni is estopped, it is necessary to consider whether Hess's offer to finance Foster's purchase actually constituted a second offer to which Hanni had a new right of first refusal. The parties cited no cases which dealt with the precise question of whether an all cash offer is so different from a later offer at the same price, but with owner financing, that the latter offer would have to be resubmitted to the holder of the right of first refusal. Several courts have examined whether the offer of the holder of the right of first refusal was on the same terms as that of the third party offeror. See, e.g., Northwest Television Club, Inc. v. Gross Seattle, Inc., 96 Wash.2d 973, 634 P.2d 837, 841 (1981). In such cases, courts will generally find that the offers were not on the same terms only if their terms are materially different. See id. Foster argues that there was but one offer, claiming that the financing provision was not a condition precedent to the existence of a valid contract, "but only a condition precedent to the duty of both parties to render their promised performances." Foster also notes that Hess originally sent Hanni his listing agreement, the terms of which stated Hess's willingness to provide owner financing, and that Hanni refused to accept these terms. Hanni responds that "different financing arrangements, interest rates, and periods of payment make for a very different real 'total' purchase price." He claims that as a matter of law and undisputed fact, the finance terms differed greatly between Foster's September 1988 offer and his April 1989 offer. After reviewing the terms of the alleged second offer, we conclude that there were two offers. Among other differences in the offers, the second offer provided for long-term seller financing instead of requiring a cash payment. This difference, particularly in view of the fact that banks were unwilling to finance the transaction, made the second offer substantially more attractive to a potential buyer than the first offer. As such, we find that Hess's offer to finance Foster's purchase actually constituted a second offer to which Hanni had a new right of first refusal. Having concluded that Hess's offer to finance Foster's purchase constituted a second offer to which Hanni was accorded a right of first refusal, we proceed to examine whether Hanni acted in such a way as to warrant estoppel of that right. Courts in many other jurisdictions have recognized that a litigant can be estopped from claiming a right of first refusal. See, e.g., Katskee v. Nevada Bob's Golf of Neb., Inc., 238 Neb. 654, 472 N.W.2d 372, 376 (1991); Urban Hotel Management Corp. v. Main and Washington Joint Venture, 494 N.E.2d 334, 338 (Ind.App.1986). We agree with these courts. In Alaska, the general requirements for application of the doctrine of equitable estoppel are the assertion of a position by conduct or word, reasonable reliance thereon by another party, and resulting prejudice. Arctic Contractors, Inc. v. State, 564 P.2d 30, 40 (Alaska 1977). The record indicates that Hanni may have failed to assert his right of first refusal despite his knowledge of the terms of the second offer, and Foster may have detrimentally relied upon Hanni's apparent consent to the sale. The letter sent by Sewright to Langvardt on April 19, 1989, clearly reveals that Sewright knew that there had been a modification of the offer which his clients had earlier declined to meet. Moreover, if Foster's account is correct, Hanni was aware of the specific terms of the Foster-Hess deal before he gave Foster written permission to lodge the Exxon workers on the property. As to the question of Foster's reliance, it appears as if Foster expended great sums in making Exxon's requested improvements and providing services to Exxon, in apparent reliance upon Hanni's approval of the sale to Foster. Because of the existence of these genuine issues of material fact, the superi- or court erred in awarding summary judgment. On remand, the court must resolve these issues to determine whether Hanni is estopped from asserting his right of first refusal. b. Did Hanni tender performance? Foster next argues that the trial court failed to consider whether Hanni had tendered performance of the purchase price to Hess before the court ordered specific performance of the right of first refusal. In C. Robert Nattress & Assocs. v. Cidco, 184 Cal.App.3d 55, 229 Cal.Rptr. 33 (1986), which involved a claim for specific performance of a right of first refusal, the court stated: [I]t is axiomatic that to obtain specific performance, a buyer must prove not only that he was ready, willing and able to perform at the time the contract was entered into but that he continued ready, willing and able to perform at the time suit was filed and during the prosecution of the specific performance action. Id. 229 Cal.Rptr. at 37. Despite this recognized requirement, Judge Carlson apparently awarded specific performance without considering whether Hanni tendered performance. Because of this mistake, the court on remand should determine whether Hanni was ready, willing and able to perform Foster's contract from the time that Foster and Hess entered into their contract until the termination of the prosecution of the specific performance action. c. Does equity require specific performance? Foster's final argument is that the trial court failed to weigh equitable issues concerning the propriety of specific performance in light of the involvement of a third party buyer such as Foster. We agree. The Restatement (Second) of Contracts, § 364 (1981) provides that specific performance should be refused if it would cause unreasonable hardship or loss to the party in breach or to third persons. If the trial court determines that specific performance is otherwise appropriate, it should consider whether specific performance should be refused because it would cause unreasonable hardship or loss to Foster. 2. Were appellees entitled to judgment as a matter of law? Perhaps the most serious problem with this case is that Hanni is attempting to enforce a contractual provision in his lease with Hess, the right of first refusal provision, against a person who is not a party to that agreement. As Foster states in his brief, "Hanni is simply seeking the wrong person's money." While Hanni might have a case against Hess for breaching the right of first refusal provision, he does not have a claim against Foster, Miksch, Far West Enterprises or Perl Island Lodge for breaching that provision, since Hanni did not contract with Foster. As such, Hanni was not entitled to summary judgment as a matter of law. On remand, the court should consider whether Hanni has a case against Hess for breaching the right of refusal. Foster also argues that summary judgment was inappropriate because Han-ni's complaint requested only damages for trespass, while his motion for summary judgment requests specific performance and the money owed to Foster by Exxon. Foster mischaracterizes the complaint when he states that it only alleges trespass. Count I states: "The defendants are and have been in continuing trespass upon plaintiffs' property and in contravention of plaintiffs' rights of consent and first refusal and reserved right to operate a commercial lodge.... " Even if Hanni's complaint had not put Foster on notice of the relief sought by Hanni, Hanni's motion for summary judgment certainly gave Foster that notice and an opportunity to respond to those claims. This argument lacks merit. B. DID THE SUPERIOR COURT ERR IN DENYING THE APPELLANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT? Foster's motion for partial summary judgment requested the trial court to hold that Hanni had no claim to the "specific monies owed by Exxon Corporation" to Foster. After hearing arguments on this motion, Judge Carlson denied the motion from the bench without giving a reason for his decision. Hanni asserts that this denial was correct because the adoption of Foster's position "would be an announcement to the world that any trespasser or similar person such as Foster who disregards the rights of the equitable owner of the property is entitled to the mesne profits from the land even though it is not rightfully his land." This argument lacks merit. As discussed below, Hanni was not entitled to the specific money owed by Exxon to Foster, under either the theory of trespass or specific performance of the right of first refusal. Even if Foster owed Hanni damages or restitution, Foster would not owe the payments from Exxon. The trial court therefore erred in denying Foster's motion for partial summary judgment. C. THE SUPERIOR COURT'S AWARD OF DAMAGES 1. Did the superior court properly award to Hanni the Exxon monies as lost profits? Foster argues that even if Hanni had articulated a plausible claim for an award of damages, Hanni was not entitled to all of the Exxon money as "lost profits." Citing § 351 of the Restatement (Second) of Contracts, Foster observes that damages are not recoverable for a loss that the breaching party did not have reason to foresee as a probable result of the breach when the contract was made. He claims that the parties to the Lodge Lease could not foresee in 1978 that an oil spill ten years later would destroy the fishing season and bring clean-up crews to the area, and that the premises would be leased to an oil company at a high rate. We agree. In addition, Foster correctly notes that the expectation interest damages awarded an injured party must be reduced by those costs that he has avoided by not having to perform. Judge Carlson inexplicably failed to take into account the sums expended by Foster prior to Exxon's renting the property- Hanni maintains that normal restitution damages are inappropriate for the alleged breach of the lease provisions "[i]n that Foster had forced himself upon the Perl Island property in violation of Hanni, et al.'s rights in order to unjustly enrich himself...." Judge Carlson seems to have shared this view, as indicated by his statement that "I don't understand how you can say that the person who plants barley on somebody else's ranch gets to keep the proceeds of the barley crop." The problem with this view is that Foster was not a conscious wrongdoer. Foster occupied the land pursuant to an apparently valid contract, and received a deed and agreement for assignment of the leases from Hess, the undisputed owner of the interests. As recognized in the Restatement of Restitution § 203, when a person innocently converts the property of another, the true owner is entitled only to the value of the property converted, and not to the profits which the converter has made by a disposition of the property. While conversion generally involves chattels, and not real property, the general principle asserted in § 203 is applicable in this case. Because Foster was not a conscious wrongdoer he is liable, if at all, for only the normal rental value of the property converted, not for the abnormally large rent payments which he received as a result of both the unusual circumstances which arose after he took possession and his efforts in persuading Exxon to rent the premises. See Alyeska Pipeline Serv. Co. v. Anderson, 629 P.2d 512, 526-28 (Alaska 1981) (recognizing that in trespass-conversion cases, the trespasser will be liable for a larger damage award if the trespass is unsuccessful), cert. denied, 454 U.S. 1099, 102 S.Ct. 674, 70 L.Ed.2d 641 (1981); Rollins v. Leibold, 512 P.2d 937, 945-46 (Alaska 1973) (where defendant was an "innocent converter" of a crane, plaintiff could recover the value of the crane plus interest, but not the net lost profits). 2. Did the superior court correctly determine that Miksch was individually liable for the damages awarded? Miksch argues that because he is a limited partner of Far West, the court erred in entering judgment against him. The trial court entered summary judgment against Miksch, together with Foster and Far West, on August 3, 1990. Miksch then filed a motion for summary judgment on the ground that as a limited partner, he was not individually liable. Judge Carlson denied this motion. Because Judge Carlson did not provide an explanation for his decision to deny Miksch's motion, we do not know the basis for his decision. The pleadings suggest two possible grounds. First, the trial court might have relied upon Hanni's arguments that the Far West limited partnership did not comply with Alaska law governing the formation of limited partnerships, including recordation of the appropriate certificate in the manner mandated by statute, and that Miksch was therefore individually liable. This argument is problematic. Contrary to Hanni's characterization of the law, AS 32.-10.010 does not clearly require foreign limited partnerships to comply with the Alaska law regarding formation of partnerships. Alaska's version of the Uniform Limited Partnership Act makes no provision for recognizing a foreign limited partnership. The fact that the statutes do not clearly require foreign limited partnerships to comply with state formation laws suggests that Far West could operate in Alaska as a limited partnership. The other possible ground for the court's decision to enter judgment against Miksch is that the Far West limited partnership did not qualify as a limited partnership during the period of events at issue, since Far West did not file a limited partnership certificate in Nebraska until May 1990. Foster concedes that the Nebraska limited partnership certificate was not filed with the Nebraska Secretary of State for a year after the agreement was signed by all the partners, but claims that this does not prevent those who signed the certificate as limited partners from enjoying limited liability. The validity of this argument seems to depend upon whether Far West was a limited partnership under Nebraska law at the time of the material acts in this case. Section 67-240 of the Revised Statutes of Nebraska requires a filing of the partnership certificate with the Secretary of State, but Neb.Rev.Stat. § 67-244(a) (1990) provides for "filing by judicial act" if "the court finds that it is proper for the certificate to be executed and that any person so designated has failed or refused to execute or file the certificate, it shall order the Secretary of State to execute and record an appropriate certificate." Although the record before us remains unclear on the issue of limited partnership status, it appears that Miksch may not have been a limited partner before the certificate was validly filed in May of 1990. Nonetheless, there may have been damages awarded against Miksch, as a general partner, which arose from actions taken after a valid limited partnership was formed in Nebraska. These same awarded damages against Foster must be reversed for the reasons mentioned above and this same result pertains also to Miksch in his status as either a general partner or a limited partner. Because both grounds suggested by the pleadings for the court's decision to hold Miksch individually liable are of questionable merit, we reverse the court's entry of judgment against Miksch. We do not reverse the court's denial of Mikseh's motion for summary judgment, for our review revealed the genuine issues of material fact and questions of law which are discussed above. III. CONCLUSION For the reasons discussed above, we REVERSE the superior court's order of summary judgment against Foster, Miksch, Far West Enterprises, Ltd. and Perl Island Lodge based upon a breach of the lease provision granting Hanni the right of first refusal. We REMAND for further proceedings consistent with the matters discussed in this opinion. Whether Hanni's motion of summary judgment should be entered against Hess for allegedly breaching the right of first refusal should also be considered on remand. We also REVERSE the superior court's denial of Foster's motion for partial summary judgment, and order the court to enter judgment on this motion that Hanni, as a matter of law, had no claim to the specific monies owed by Exxon Corporation to Foster for daily use of the lodge facilities. Furthermore, we REVERSE the superior court's ruling that Miksch is not a limited party entitled to summary judgment. All other orders and judgments entered by the superior court, including the supplemental judgment and the order which require Foster to pay certain "expenses and sanctions," are VACATED. . Foster's attorney, Arthur Langvardt, wrote a letter to Hanni's attorney, Michael Sewright, on March 3, 1989, which stated: I believe Mr. Foster spoke to the members of the committee on October 7, 1988. He still has received no word that assignment of the lease is approved (or disapproved, for that matter). The sale is contingent on Mr. Foster's obtaining the lease, and is scheduled for closing. It is essential, because of the timing of the lodge season, that he know right away if there is a problem with the lease. . Marty Miksch, of Anchorage; is one of the Iimited partners of Far West. . According to Hanni's counsel, the sum of 1153,584.16 plus interest remains subject to disbursement. . Hess's status as a party to this case is somewhat uncertain. The appellees filed a motion to amend their complaint to add Hess as a defendant. Subsequent to the filing of that motion, on December 1, 1989, appellants' counsel was seemingly assured by Judge Carlson that the complaint would not be amended for purposes of the summary judgment hearing on that date. The parties later discovered that Judge Carlson, on November 30, 1989, had written on the bottom of the motion to file an amended complaint that it was allowed. This "order" was not circulated until December 28, 1989. . Foster asserted many defenses to Hanni's motion for summary judgment. His primary defenses were that Hanni had waived any right he had to refuse consent to Hess's assignment of his lodge lease and to insist upon a right of first refusal, and that Hanni was estopped by Foster's reliance from asserting his right of first refusal. . Hanni argues that Miksch, Perl Island Lodge and Far West Enterprises waived opposition to Hanni's motion for summary judgment because they presented no opposition to that motion. In the case upon which Hanni relies most heavily in making this argument, Jerrel v. Kenai Peninsula Borough Sch. Dist., 567 P.2d 760 (Alaska 1977), no briefs were filed in opposition to summary judgment, thus disrupting the court's calendar and the "prompt handling of litigation." Id. at 764-65. In the case at bar, briefs in opposition to the motion were timely filed by Foster. Even more importantly, Foster's interests are almost exactly the same as the interests of the parties alleged to have waived opposition, since he is the only general partner in Perl Island Lodge and Far West Enterprises. For these reasons, and in light of the fact that the law firm employed by Foster was clearly representing these parties at the time it filed Foster's opposition, that firm's failure to list the other parties on its opposition does not constitute a waiver of their opposition. See Alaska R.Civ.P. 94. . Hanni argues that an estoppel analysis is inappropriate because "no duty to exercise [a right of first refusal] arises until the offer is squarely presented to the holder of the right by the party obligated, in its complete, clear and unequivocal terms...." In support of this argument, Hanni cites several cases from other jurisdictions which state that the holder of a right of first refusal is entitled to notice of the terms of a proposed sale and an opportunity to purchase under those terms. See, e.g., Prince v. Elm Inv. Co., Inc., 649 P.2d 820, 826 (Utah 1982). We recognize that the holder of a right of first refusal is generally entitled to notice of the terms of a proposed sale and an opportunity to purchase under those terms. Nonetheless, in those cases where the holder of a right of first refusal has knowledge of the terms of an offer and apparently waives his right, and where the seller reasonably relies on this waiver, it is not inappropriate to estop the holder from asserting the right of first refusal. . Hanni claims that the agreement "does not recognize (and in fact disclaims) any right in Foster material to the right of first refusal, implicitly or otherwise, and does not waive compensation for Exxon's use of the type that later became known." He argues that the agreement was executed only after Foster "thrust himself upon the island," misrepresented the use and compensation being paid, and commenced unauthorized air operations on the island. Again, this disagreement with Foster shows the existence of a genuine issue of material fact. . Hanni argues that Foster had already begun making improvements to the island prior to Hanni's alleged acquiescence to the terms of the Foster-Hess deal, and that Foster therefore "cannot now be taken seriously when he claims that he 'changed his position in reliance' on the interim use document." This argument raises another genuine issue of material fact. . Foster also claims that there exist genuine issues of material fact as to whether Hanni waived the right of first refusal. In Milne v. Anderson, 576 P.2d 109 (Alaska 1978), we stated that "[a]n implied waiver arises where the course of conduct pursued evidences an inten tion to waive a right, or is inconsistent with any other intention than a waiver, or where neglect to insist upon the right results in prejudice to another party." Id. at 112. Applying this test, the record suggests that Hanni may have waived the right of first refusal. When Foster contacted Terry and Anderson by telephone to discuss his plans for the lodge, they voiced no objections to his acquiring and operating the lodge. Terry and Anderson later telephoned Foster to discuss their desire to have him operate the lodge. In December 1988, Hanni sent a letter to all lot owners saying he was in favor of issuing the Lodge Lease to Foster at no cost and would "probably" issue the lease to Foster if no one objected. There is no evidence that Foster was ever informed of any objection to the assignment. Because there exist genuine issues of material fact with regard to the question of whether Hanni waived his right of first refusal, the superior court erred in entering summary judgment against Foster. . In Hanni's Reply to Opposition to Motion for Summary Judgment, dated September 29, 1989, Hanni stated that he was ready, willing and able to meet the terms contained within Foster's second offer. A mere assertion in a pleading is insufficient to prove that he was ready, willing and able to perform at the time the contract was executed. . Foster maintains that the superior court should have conducted an evidentiary hearing to determine whether reimbursement was due him when specific performance was granted. Hanni disagrees, claiming that Foster's argument simply dredges up issues of damages appropriately dealt with in the court's supplemental judgment. The affidavits and exhibits in the record show that extensive evidence concerning the parties' damages was introduced by both parties. If the trial court determines upon remand that specific performance is called for, it should also determine whether to hold an evidentiary hearing for purposes of fashioning a proper remedy. . As discussed in footnote 4, supra, Hess's status as a party in this case is somewhat uncertain. Assuming that Judge Carlson added Hess as a defendant as a result of the appellees' motion to amend their complaint, it is proper for the superior court to consider the motion for summary judgment against Hess only. While Hess has apparently aligned with Hanni since the appellees moved to have Hess added as a defendant, that realignment does not preclude the superior court from considering the motion for summary judgment against Hess. . Section 203 of the Restatement of Restitution (1937) provides in part: § 203. INNOCENT CONVERTER Where a person converts the property of another without notice of the facts which make him a converter and being still without such notice exchanges it for other property, the other is entitled to an equitable lien upon the property received in exchange to secure his claim for restitution, but is not entitled to enforce a constructive trust of the property. Caveat: It is not intended to express any opinion on the question whether a constructive trust can be enforced against a converter who has disposed of the property converted and acquired in exchange other property without knowledge but with notice of the facts which make him a converter . Comment: a. Reason for the rule. Where the converter is a conscious wrongdoer, he can be compelled to surrender any profit which he makes by a disposition of the claimant's property, and not merely to restore to the claimant the value of his property, since if he were permitted to keep the profit there would be an incentive to wrongdoing, and compelling him to surrender the profit operates as a deterrent upon the wrongful disposition of the property of others.... This reason is not applicable to persons who are not conscious wrongdoers. A person who innocently converts the property of another is liable to the other for the value of the property converted, and if through the disposition of this property he acquires other property, the other can enforce an equitable lien upon the property so acquired as security for his claim against the converter for the value of the property converted, and if the property so acquired is of less value than the property converted, the other can hold the converter personally liable for the balance of his claim. If the property so acquired is of greater value than the property converted, the other cannot reach the profit by enforcing a constructive trust of the property so acquired. The owner of property converted is entitled to be made whole but not to reach the profit. . In his memorandum in support of the motion for summary judgment, Hanni offered additional theories to justify his claim for all the money which Foster received from Exxon. He asserted that "[wjhere the property has been placed in the possession of a third party, recovery is afforded under the equitable doctrines of quasi-contract or assumpsit or unjust enrichment." On remand, the superior court should consider the validity of these arguments. . While Miksch's motion might appear untimely, because he did not file his motion until after summary judgment had been ordered and entered against him, the motion probably was not untimely. Miksch filed his motion prior to the court's supplemental judgment, giving the court an opportunity to dismiss Miksch prior to its disposition of the interpled funds and its order that the appellants pay certain expenses incurred by Hanni. Judge Carlson apparently did not view Miksch's motion as untimely, for he expressly considered the motion and the parties' arguments as to its merits before denying the motion. . American Jurisprudence provides: Case authority as to when a foreign limited partnership must register in the state is sparse and corporation law has been looked to for guidance. On that basis the rule that a foreign corporation is not doing business in a state when it only engages in casual, occasional or isolated acts and transactions, such as the purchase or leasing of property, has been applied to a foreign limited partnership. Since the original (1916) Uniform Act does not provide for the recognition of out-of-state limited partnerships, firms often refile their certificates in each state in which they do business, if the original Act is in force there. However, courts have recognized their right to do business without having filed at all. Caution: Such is not likely to be the rule in a state which has adopted one of the provisions specifically requiring a foreign limited partnership to file. 59A Am.Jur.2d Partnership § 1248 (2d ed. 1987) (citations omitted).

10339758

Jeff SHARPE and Debbie Sharpe, Appellants, v. George TRAIL and Lana Trail, Appellees

Sharpe v. Trail

1995-08-18

No. S-5618

304

310

902 P.2d 304

902

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:43:34.517492+00:00

CAP

Before MOORE, C.J., RABINOWITZ, MATTHEWS and COMPTON, JJ., and BRYNER, Justice pro tem.

Jeff SHARPE and Debbie Sharpe, Appellants, v. George TRAIL and Lana Trail, Appellees.

Jeff SHARPE and Debbie Sharpe, Appellants, v. George TRAIL and Lana Trail, Appellees. No. S-5618. Supreme Court of Alaska. Aug. 18, 1995. Rehearing Denied Sept. 22, 1995. Michael J. Zelensky, Ketchikan, for appellants. Gregory W. Lessmeier, Hughes, Thorsness, Gantz, Powell & Brundin, Juneau, for appellees. Before MOORE, C.J., RABINOWITZ, MATTHEWS and COMPTON, JJ., and BRYNER, Justice pro tem. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

3862

23155

OPINION BRYNER, Justice pro tem. I. INTRODUCTION Jeff and Debbie Sharpe sued George and Lana'Trail, alleging wrongful eviction from a mobile home park in Ketchikan. Superior Court Judge Thomas E. Schulz granted the Trails' motion for summary judgment. The Sharpes appeal, contending that genuine issues of material fact existed as to the Trails' compliance with AS 34.05.225, the statute governing eviction from mobile home parks. We affirm. II. FACTS AND PROCEEDINGS The Sharpes owned a "double wide" mobile home on a rented space — space 147 — in the Mountain View Trailer Courts, a mobile home park in Ketchikan. On April 10, 1990, the Trails, who had purchased the mobile home park the previous year, sent notice to the Sharpes requesting that they remove the mobile home from the park by November 1, 1990. The notice stated, in relevant part, that the Trails were "planning on converting that space to parking." Unable to sell or move their mobile home, the Sharpes vacated it. The home was repossessed and was removed from the trailer park in the fall of 1991. In the spring of 1990, shortly after the Sharpes vacated the mobile home but while it still remained in place, the Trails began parking construction equipment on space 147. After the mobile home was removed, the Trails added some fill material to the property. In the fall of 1991, the Trails removed the construction equipment from the property and began allowing travel trailers and recreational vehicles to park on it, but did not allow the space to be used by mobile homes. On March 20, 1992, the Sharpes filed suit alleging, among other things, wrongful' eviction. The Trails answered and moved for summary judgment. As to the Sharpes' wrongful eviction claim, the Trails' summary judgment motion asserted compliance with subsection (a)(4) of AS 34.03.225, the statute governing eviction of mobile homes from mobile home parks. Subsection (a)(4) of the statute authorizes the owner of a mobile home park to evict a tenant upon 180 days notice if the owner desires to make "a change in the use of the land comprising the mobile home park, or the portion of it on which the mobile home to be evicted is located." The Trails asserted that they had provided the Sharpes with the requisite 180-day notice and had in fact changed the use of the land on which the Sharpes' mobile home had been located. In response, the Sharpes alleged the existence of two disputed issues. First, the Sharpes claimed that the Trails' use of the property to park commercial vehicles did not amount to a "change in the use of the land" within the meaning of AS 34.03.225(a)(4); second, they asserted that the Trails acted in bad faith in evicting them "under the guise of a change in land use." In support of their claim of bad faith, the Sharpes pointed out that the Trails had recently begun renting space 147 for use by travel trailers and recreational vehicles — a use the Sharpes characterized as identical to the original use. In addition, the Sharpes presented evidence of statements the Trails had made indicating that they wanted to evict the Sharpes' mobile home because it was unsightly. The Sharpes argued that these statements, coupled with the Trails' recent rental of space 147 for parking by travel trailers and recreational vehicles, created a factual inference that the Trails had never intended to change the use of the property. Judge Schulz rejected the Sharpes' arguments, concluding that no material factual issues remained in dispute and that the Trails were entitled to judgment as a matter of law. The Sharpes then filed this appeal, in which they argue that the superior court erred in rejecting their bad faith claim and in finding a change in the use of space 147. III. DISCUSSION A. Standard of Review In ruling on a summary judgment motion, the trial court "must determine whether any genuine issue of material fact exists and whether the moving party is entitled to judgment on the law applicable to the established facts. All reasonable inferences of fact from proffered materials must be drawn against the moving party and in favor of the non-moving party." Wright v. State, 824 P.2d 718, 720 (Alaska 1992) (citations omitted). On review, this court uses its independent judgment and will reverse the trial court's ruling "if the pleadings and evidence presented reveal either the existence of any genuine issues of material fact or that the moving party is not entitled to judgment as a matter of law." Foster v. Hanni, 841 P.2d 164, 170 (Alaska 1992). B. Change in Use of the Land The trial court found that the Trails satisfied the statutory requirements of AS 34.03.225 in that they changed the use of the property and provided the Sharpes with the requisite 180 days notice. The Sharpes argue that the trial court erred as a matter of law in reaching this conclusion. The Sharpes contend that "the conversion to parking is insufficient to satisfy" the statutory requirement of "a change in use of the land comprising the mobile home park or the portion of it on which the mobile home to be evicted is located." AS 34.03.225(a)(4). We have previously noted that the purpose of Alaska's mobile home eviction statute is to protect the rights of mobile home owners: AS 34.03.225 limits a landlord's right to evict a mobile home tenant to only four reasons. Several other states have similar laws, the rationale of which has received considerable attention. Such legislation provides mobile homeowners with a measure of protection in their dealings with mobile home park operators. Mobile homeowners are thought to need more protection than do ordinary renters because the general shortage of mobile home spaces places them in an unequal bargaining position which can lead to abuses by the landlord, and because eviction entails the expense of moving a mobile home which could result in a loss of equity in the mobile home. Osness v. Dimond Estates, Inc., 615 P.2d 605, 607-08 (Alaska 1980) (footnotes omitted). Although we have not previously interpreted the "change in use" provision of subsection (a)(4), the provision is not unique. Courts of other states, construing virtually identical provisions, have held that a viable "change in use" need not be a drastic one or one entailing substantial alteration of the land occupied by a mobile home. For example, in Crown Diversified Industries, Inc. v. Watt, 415 So.2d 803, 805 (Fla.App.1982), the Florida Court of Appeals held that a change in use need not be so substantial as to justify rezoning. And in Harris v. Martin Regency, Ltd., 576 So.2d 1294, 1298 (Fla.1991), the Florida Supreme Court stated "[i]f the park owner in good faith merely wants to leave land vacant, the owner may do so under the statute." Id. at 1298. The foregoing cases provide strong support for the conclusion that a sufficient change in use occurred here. In the present case, it is undisputed that, following the eviction of the Sharpes' mobile home, the Trails used space 147 by parking construction vehicles on the property, and, later, by renting the property for parking by travel trailers and recreational vehicles. The parking of construction vehicles on space 147 plainly amounts to a new use of the property. The Sharpes cite no authority to support the proposition that this new use should be deemed insufficient to qualify as a "change in use" under AS 34.03.225(a)(4). The Trails' more recent use of the property for rental to travel trailers and recreational vehicles presents a marginally closer issue. In our view, however, renting to travel trailers and recreational vehicles amounts to a significantly different use than rental for occupancy by a mobile home. Case law appears to recognize a distinction between mobile homes and other vehicles that are capable of being occupied: "'The mobile home is a detached, single family dwelling unit designed for long term occupancy, which distinguishes it from the motor home or travel trailer.' " Cider Barrel Mobile Home Court v. Eader, 287 Md. 571, 414 A.2d 1246, 1248 n. 3 (1980) (quoting Stubbs, The Necessity for Specific State Legislation to Deal with the Mobile Home Park Landlord-Tenant Relationship, 9 Ga.L.Rev. 212 n. 1 (1974-75)). This distinction serves as the basis for the special protection Alaska law accords to mobile home occupants. Statutes like AS 34.03.225, which limit the rights of landowners to evict mobile homes from rented spaces, give recognition to the unique character of mobile homes and to the special relationship that arises when a mobile home owner rents space: Mobile homes come to rest in established parks, the wheels are generally removed, they are anchored to the ground, because of forces of the wind, connections with electricity, water and sewerage are made.... The removal from one park to another becomes more than a mere hitching to a truck or tractor and pulling it away. Palm Beach Mobile Homes, Inc., v. Strong, 300 So.2d 881, 886 (Fla.1974). See also Osness, 615 P.2d at 607-08. Indeed, the distinct status of mobile homes is implicitly recognized and given legal significance in Alaska's eviction statute: by its own terms, AS 34.03.225 applies only to "mobile homes," "mobile home park operators," and "mobile home dwellers" and does not extend to travel trailers or recreational vehicles. We conclude that the Trails' undisputed use of space 147 for the parking of commercial vehicles, travel trailers and recreational vehicles constitutes a "change in the use of the land" under AS 34.03.225(a)(4). C. Good Faith The Sharpes separately argue that a genuine factual dispute existed as to the Trails' good faith in ordering their eviction. "[E]ven if a park owner offered a facially legitimate reason for eviction, the eviction may be voided if the mobile home owners can prove the park owner acted in bad faith." Hams, 576 So.2d at 1298. But, as the trial court correctly recognized in the present case, good faith is not an abstract proposition, but must instead be determined by reference to the statutory "change in use" requirement. As the trial court stated: [I]n order to find a lack of good faith, I think that the court would have to find or be able to infer from the evidence at least, that there was a factual issue whether the defendants actually changed the use of the land. I don't think there is. Under AS 34.03.320, the Trails were required to act in good faith in evicting the Sharpes. However, AS 34.03.360(5) defines "good faith" to mean "honesty in fact in the conduct of the transaction concerned." Under the statutory definition of good faith, if the Trails honestly decided to change the use of space 147 — in other words, if they acted with "honesty in fact" in undertaking the change in use — their underlying motives for doing so were immaterial. Cf. Crown Diversified, 415 So.2d at 806 (proof of bad faith through fraudulent representations would suffice for relief). Here, undisputed evidence in the record establishes that, upon evicting the Sharpes, the Trails did in fact change the use of space 147. This change in use continued in effect at the time the trial court ruled on the Trails' motion for summary judgment. We may accept as true the evidence suggesting that the Trails wanted to evict the Sharpes because they found their mobile home unsightly. In the face of uncontradict-ed proof establishing an actual and continuing change in use, however, this evidence cannot, standing alone, support an inference that the Trails acted in bad faith in carrying out the eviction. IV. CONCLUSION The superior court properly concluded that undisputed evidence established the Trails' compliance with the eviction requirements of AS 34.03.225(a)(4); accordingly, the court did not err in granting the Trails' motion for summary judgment. The judgment is AFFIRMED. . The Sharpes also alleged that they were the beneficiaries of an agreement between the Trails and the prior owners of Mountain View Trailer Park that was intended to assure the Sharpes' continued occupancy of space 147 after the Trails purchased the property. The Trails' motion for summary judgment denied any agreement protecting the Sharpes' occupancy, and the superior court granted the Trails' motion for summary judgment on this issue. The Sharpes do not challenge this aspect of the superior court's summary judgment order. . In relevant part, Judge Schulz stated: So I think the change of use was, ah, met the conditions of the statute. I don't [think] there has to be an awful lot done to the land as such, I think all that has to happen is that the owner of the land decides that he is going to use it for something else or not use it at all. And under our statute, he's entitled to do that and he gave them six months notice. That finding, of course, kind of deals also with the plaintiffs' good faith argument because in order to find a lack of good faith, I think that the court would have to find or be able to infer from the evidence at least, that there was a factual issue whether the defendants actually changed the use of the land. I don't think there is. The plaintiffs have contended that Mrs. Trail didn't like the looks of their trailer. She has filed an affidavit that says that she thought their trailer looked fine and she never told them she didn't like it, and so there's a factual dispute there, but given the terms of our statute and the notice they gave the plaintiffs and the use to which they put the land, I can't, there's no triable issue on that record. . Cf. AS 45.30.100, which defines a "mobile home" for purposes of Alaska's Mobile Home Sales Act, AS 45.30.011-100, as "a vehicle designed and equipped for human habitation, and which may be drawn by a motor vehicle only when authorized by a permit." Under this definition, typical travel trailers and recreational vehicles, which are designed for routine highway travel, are plainly excluded from the definition of "mobile home," since Alaska regulations require permits only for oversize and overweight vehicles. See 17 AAC 25.010.110; 3 AAC 35.120. . AS 34.03.320 provides: Every duty under this chapter and every act that must be performed as a condition precedent to the exercise of a right or remedy under this chapter imposes an obligation of good faith in its performance or enforcement. . The dissent is mistaken in asserting that our decision applies an objective standard of good faith. We apply a subjective test, but hold that good faith must be defined in reference to AS 34.03.225(a)(4), which expressly grants owners the right to evict on short notice for purposes of changing the use of the land. The requirement of good faith is thus satisfied if the owner acts in subjective good faith in effecting a permanent change in the use of the land on which a mobile home is situated. Of course, the same might not be true if the underlying basis for the Trails' decision to evict were independently impermissible (e.g., racial discrimination) or otherwise violated public policy (e.g., retaliatory conduct). In the present case, however, the evidence suggesting that the Trails were motivated by their displeasure with the appearance of the Sharpes' mobile home reveals no independently impermissible basis for the decision to evict. . The Sharpes' argument that the evidence supports a factual inference of bad faith might have merit if we accepted their premise that the Trails' recent use of space 147 for travel trailers and recreational vehicles was essentially identical to the use of the space for a mobile home. Accept- ' ing this premise, the evidence would arguably tend to support the view that the Trails intended to change the use of their property only temporarily, as a pretext for the eviction. In light of our conclusion that rental to travel trailers and recreational vehicles amounts to a changed use, however, this aspect of the Sharpes' good faith argument is moot.

10340426

Patrick T. HILL, Appellant, v. STATE of Alaska, Appellee

Hill v. State

1995-09-15

No. A-5164

343

347

902 P.2d 343

902