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11772136

Philip G. DUTTON, Appellant, v. STATE of Alaska, Appellee

Dutton v. State

1999-01-08

No. A-6767

925

936

970 P.2d 925

970

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:48:56.531244+00:00

CAP

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

Philip G. DUTTON, Appellant, v. STATE of Alaska, Appellee.

Philip G. DUTTON, Appellant, v. STATE of Alaska, Appellee. No. A-6767. Court of Appeals of Alaska. Jan. 8, 1999. Appearances: Kevin Shores, Assistant Public Defender, Juneau, and Barbara K. Brink, Public Defender, Anchorage, for Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Bo-telho, Attorney General, Juneau, for Appel-lee. Before COATS, C.J., and MANNHEIMER and STEWART, JJ.

5825

36782

OPINION MANNHEIMER, J. This appeal requires us to interpret a contract — a plea bargain. Philip G. Dutton was charged with third-degree assault. The State offered to reduce this charge to a misdemeanor (fourth-degree assault), conditioned on Dutton's also pleading guilty to a federal felony charge arising from the same episode. Dutton accepted the offer: he pleaded guilty in federal court, and then he was sentenced on the misdemeanor assault charge in state court. Six months later, however, Dutton withdrew his federal plea. Dutton's withdrawal of his federal plea raises two questions: First, did Dutton materially breach his plea'bargain with the State when, following his state sentencing, he withdrew his federal plea? Second, assuming that Dutton's withdrawal of his federal plea was a material breach of his plea bargain with the State, could the State reinstate the original felony charge? For the reasons explained here, we conclude that Dutton's withdrawal of his federal plea was a material breach of his plea agreement with the State, and we further conclude that the double jeopardy clause did not prohibit the superior court from vacating Dut-ton's misdemeanor conviction and reinstating the original third-degree assault charge. Underlying facts Philip G. Dutton faced both state and federal felony charges stemming from his conduct in Glacier Bay National Park. The state felony charge was third-degree assault: the State asserted that Dutton had aimed a .44 magnum handgun at a man (Dan Foley) who happened upon Dutton's campsite, and that Dutton had threatened to shoot Foley. To resolve this assault charge, Dutton and the State entered into a plea agreement. The State agreed to reduce the assault charge to fourth-degree assault (a misdemeanor), and the State further agreed that Dutton would receive a sentence of 12 months' imprisonment with 8 months suspended (4 months to serve), plus forfeiture of the .44 magnum. For his part, Dutton agreed to plead no contest to fourth-degree assault and, additionally, to plead guilty or no contest to at least one federal felony. Dutton's ehange-of-plea hearing in superi- or court was postponed twice, a delay of almost one month, until the parties made sure that Dutton had entered his federal plea. When this was verified, the superior court accepted Dutton's plea to fourth-degree assault and imposed the agreed-upon sentence. Things unraveled six months later, when Dutton withdrew his plea to the federal felony. The State announced that it considered Dutton to have breached the plea agreement, thus resuscitating the third-degree assault charge. Over Dutton's objection, Superior Court Judge Larry R. Weeks vacated Dut- ton's fourth-degree assault conviction and allowed the State to reinstate the third-degree assault charge. Judge Weeks found that Dutton's agreement with the State required Dutton not just to plead guilty in federal court but also to be sentenced on that plea. Accordingly, Judge Weeks ruled that when Dutton withdrew his federal plea, he violated the terms of his plea agreement with the State. Judge Weeks then ruled that, because Dutton had breached the agreement, the plea agreement should be rescinded and the parties returned to the status quo ante: Dutton's misdemeanor assault conviction should be vacated, and the State should be allowed to reinstate the original felony assault charge. Following this ruling, Dutton was tried for third-degree assault and was convicted. He now appeals the superior court's decision to allow the State to prosecute the third-degree assault charge. The standards of review Plea agreements are, in essence, contracts between a defendant and the government. If a dispute arises concerning the terms of the agreement, the trial court must make findings regarding the existence and meaning of those terms. If one party alleges that the other party has violated the agreement, the trial court must likewise make findings regarding the asserted breach. If a breach is found, the court must then decide whether the breach was material. And if the breach was material, the court must fashion a remedy. On appeal, a trial court's findings of historical fact — its findings regarding the terms of the agreement and whether those terms were violated — will be upheld unless those findings are shown to be clearly erroneous. But the question of whether a breach is "material" — that is, whether the breach destroys the basic value of the agreement and excuses the non-offending party from further adherence to the terms of the agreement — is ultimately a question of law. Thus, an appellate court decides this issue de novo. Did Dutton's plea agreement require him to persist in his federal plea through sentencing? Dutton contends that, even though he withdrew his federal plea after he was sentenced in state court, he nevertheless lived up to the terms of the plea agreement. He argues that the plea agreement merely required him to enter the federal plea and did not require him to be sentenced in federal court. According to Dutton, once he entered his federal plea, he satisfied his part of the bargain and he was then at liberty to do anything he might to avoid being sentenced in federal court. As explained above, it was Judge Weeks's duty to resolve this dispute concerning the terms of Dutton's plea agreement. The law allows a trier of fact to infer the existence and terms of a contract "based on the reasonable meaning of a party's words and acts". When a conflict arises regarding the terms of a contract, the trier of fact examines the parties' manifestations of purpose and assent. Because a contract is assessed under an objective standard, if a party objectively manifested an intention to be bound by the terms of a contract, that assent can not be defeated by evidence of the party's unexpressed reservations or subjective contrary intentions. Dutton points out that he never expressly promised that he would not withdraw his federal plea. He also points out that the state prosecutor was willing to allow the change-of-plea to go forward in state court even though Dutton had not yet been sentenced in federal court. From this, Dutton argues that Judge Weeks should have con- eluded that it was immaterial to the plea agreement whether Dutton was ever sentenced in federal court. The record as a whole, however, tends to refute Dutton's argument. As we explain below, the words and actions of the parties provide ample basis for Judge Weeks's conclusion that Dutton's plea agreement was premised, not just on Dutton's entry of a plea in federal court, but on Dutton's conviction and sentencing in federal court. As already noted, Dutton's change-of-plea hearing was postponed until the parties ascertained that Dutton had indeed entered his plea in federal court. In addition, the prosecutor told Judge Weeks that the State's primary motivation for reducing the charge from third-degree assault to fourth-degree assault was that "[Dutton] has been convicted of a federal felony". Dutton's attorney agreed; the defense attorney told Judge Weeks that "the State only agreed to reduce [the charge against Dutton] contingent upon [his] entering a plea in federal court". A few moments later, when discussing the fairness of the proposed misdemeanor sentence (4 months to serve), the defense attorney assured Judge Weeks that the important goals of sentencing were going to be satisfied by Dutton's anticipated federal sentence: I think that [Your Honor] can have some confidence in the federal court and the fact . that Mr. Dutton's rehabilitation and deterrence is going to be satisfied to a greater extent by what's going to happen in federal court than it could be [in state court] under misdemeanor probation. Prom this, Judge Weeks could justifiably conclude that the State's plea agreement with Dutton contemplated that Dutton would be convicted and sentenced in federal court. In addition to this inference that Judge Weeks drew from objective manifestations of the parties, we note that Dutton's interpretation of the plea agreement simply does not make sense. Dutton fails to suggest what benefit the State might gain from Dutton's entry of a federal plea unless Dutton was actually convicted and sentenced in federal court. That is, there appears to be no reason why the State would agree to reduce its charge against Dutton in exchange for Dut-ton's entry of a guilty plea in the federal case if the State believed that Dutton was then free to withdraw the federal plea. Given this record, Judge Weeks had ample evidentiary justification for concluding that Dutton's plea agreement required Dutton not just to enter a plea in federal court but also to persist in that plea, so that he was convicted and sentenced in federal court. The judge's interpretation of the terms of the contract is not clearly erroneous. (In his brief to this court, Dutton raises the possibility that, because of circumstances beyond Dutton's control, his federal plea might not have resulted in a conviction and sentence. Dutton suggests, for example, that he would not have violated his plea agreement if the U.S. Attorney's Office had decided to reject Dutton's plea and instead go to trial on all of the outstanding federal charges. There may be some merit to Dut-ton's argument, but it is entirely hypothetical. It was Dutton's choice to withdraw his federal plea.) Was Dutton's breach of the plea agreement a material breach? Judge Weeks concluded that Dut-ton's breach of the plea agreement (his withdrawal of his federal plea) was a "material" breach — that is, a serious enough breach to warrant rescinding the plea bargain and allowing the State to reinstate the original charge. The question of whether a breach is material must be answered by examining the reasonable expectations of the parties and then assessing to what extent the breach defeated these expectations. Dutton was charged with aiming a .44 magnum handgun at another man and threatening to kill him. This conduct falls within the core of third-degree assault as defined in AS 11.41.220(a)(1)(A). At the change-of-plea hearing, the prosecutor ex plained that the State viewed Dutton's conduct as serious and that the State had agreed to reduce the charge to a misdemeanor (fourth-degree assault) only because Dutton had pleaded guilty to a federal felony. The record shows that both parties contemplated that Dutton's federal sentence would be more important than his state sentence. The plea agreement called for Dutton to serve 4 months in jail for the misdemeanor assault. Because Dutton had been in custody for several months by the time he changed his plea, Dutton's 4-month sentence amounted to time served. When Dutton's attorney spoke to the court about this proposed sentence, the defense attorney assured Judge Weeks that Dutton's misdemeanor sentence was of small importance because the judge could rely on Dutton's federal sentence to satisfy the sentencing goals of deterrence and rehabilitation. Given these circumstances, we agree with Judge Weeks that Dutton's withdrawal of his federal plea significantly defeated the State's expectations and was therefore a material breach of the plea agreement. On appeal, Dutton argues that even if he breached the plea agreement by withdrawing his federal plea, this breach was not material because the State ultimately was not harmed. Dutton points out that, even though he withdrew his federal plea and went to trial, he was subsequently convicted of several federal offenses, for which he received a composite sentence of 12 months' imprisonment. There are two problems with Dutton's argument; the first one is procedural and the second one is substantive. First, Dutton did not receive his federal sentence until September 4, 1997. This was approximately four months after Judge Weeks made his decision concerning Dutton's breach of his plea agreement with the State. In fact, Dutton had already been tried, convicted, and sentenced in the superior court for third-degree assault before he was sentenced in federal court. Dutton's state sentence was entered on August 15,1997 — three weeks before his federal sentencing. Under these circumstances, if Dutton believed that his federal sentence mitigated his breach of the plea agreement, it was his duty to present this argument to Judge Weeks and to ask Judge Weeks to reconsider his earlier decision to rescind the plea agreement. Dutton can not litigate this issue for the first time on appeal. Second, even though Dutton was eventually tried and convicted in federal court, this does not necessarily mean that he committed no material breach of his plea agreement with the State. For instance, in United States v. González-Sánchez , the government agreed to dismiss some of the charges against one defendant, Carlos Latorre, in exchange for Latorre's promise to cooperate fully and honestly in the prosecutions of his co-defendants. However, when Latorre later took the stand as a government witness, his testimony differed materially from his earlier statements to the federal investigators. The government thereupon rescinded the plea agreement and reinstated the original charges against Latorre. On appeal, Latorre argued that even if he failed to cooperate fully and honestly, the government suffered no injury because the government ultimately obtained the conviction of Latorre's co-defendant. The federal court of appeals rejected this argument: [Latorre's] argument misinterprets his obligation under the plea agreement. The government's promise was not conditioned upon . conviction of . any other defendant; it was conditioned upon Latorre's cooperation in the government's investigation and prosecutions. Latorre failed to cooperate with the government. He cannot expect to receive the benefits of his plea agreement simply because the government was successful in its prosecution of [the co-defendants] despite Latorre's surprise testimony. The district court's findings that Latorre failed to cooperate fully and honestly and that this failure constituted a material breach of the plea agreement are not clearly eironeous. González-Sánchez, 825 F.2d at 579. Similarly, in Dutton's case, the federal government ultimately succeeded in convicting Dutton of felony charges despite his refusal to enter a plea, but this fact does not excuse Dutton's breach of the plea agreement, nor does it render his breach of the agreement any less material. Could Judge Weeks rescind the plea agreement after Dutton had already been convicted of misdemeanor assault (based on his plea) and had served his sentence? Dutton argues that even if he materially breached his plea agreement with the State, the double jeopardy clauses of the federal and state constitutions forbade Judge Weeks from rescinding the plea agreement, vacating Dutton's misdemeanor conviction, and allowing the State to reinstate the third-degree assault charge. Dutton points out that, when he withdrew his federal plea, his state court conviction for fourth-degree assault was already final. (Indeed, as just explained, Dutton had already served his sentence because he was sentenced to time served.) Dutton also points out that fourth-degree assault is a lesser offense included within the original charge of third-degree assault. From this, Dutton concludes that his conviction and sentence for fourth-degree assault preclude any later prosecution for third-degree assault arising out of the same incident, even if he did violate the terms of his plea agreement. It is true, as a general rule, that the double jeopardy clause forbids a state from prosecuting a defendant after the defendant has already been convicted and punished once for the same offense. This same rule applies when the second prosecution is for a greater offense after the defendant has been convicted of a lesser included charge arising from the same incident. However, the rule is different when the defendant has secured the lesser charge as part of a plea bargain. In Ricketts v. Adamson , the United States Supreme Court held that the federal double jeopardy clause is not violated when, following a defendant's breach of a plea agreement, the government reinstitutes a greater charge that was reduced as part of a plea agreement — even after the defendant has changed their plea and been convicted of the reduced charge. The defendant in Adamson was charged with first-degree murder in connection with the bombing death of a news reporter. Adamson was allowed to plead guilty to a lesser included offense (second-degree murder) in exchange for his promise to testify against two other participants in the conspiracy. He did so. Adamson was then sentenced for second-degree murder and began serving his sentence. However, the convictions of the two other conspirators were reversed on appeal, and the government again called upon Adamson to testify against them. This time, Adamson refused. The government responded by rescinding the plea agreement and charging Adamson with first-degree murder. Adamson was tried and convicted. Having exhausted his state appeals, Adamson ultimately sought a federal writ of habeas corpus. He argued that the double jeopardy clause prohibited the state from prosecuting him a second time for his role in the murder, and he also argued that, even though he had agreed to the plea bargain, no one had ever explicitly asked him to waive his double jeopardy rights. The Supreme Court rejected this contention: We . assume that jeopardy attached at least when [Adamson] was sentenced . on his plea of guilty to second-degree murder. Assuming also that[,] under Arizona law[,] second-degree murder is a lesser included offense of first-degree murder, the Double Jeopardy Clause, absent special circumstances, would have precluded [Adamson's] prosecution . for the greater charge on which he now stands convicted. Brown v. Ohio [citation omitted]. The State submits, however, that [Adam-son's] breach of the plea [agreement] . removed the double jeopardy bar to prose- eution of [Adamson] on the first-degree murder charge. We agree with the State. Adamson, 483 U.S. at 8, 107 S.Ct. at 2685 (footnotes omitted). Dutton acknowledges that Adamson appears to remove any potential double jeopardy objection based either on the apparent finality of Dutton's fourth-degree assault conviction and sentence or on the fact that fourth-degree assault is a lesser included offense of the original charge, third-degree assault. Dutton argues, however, that Adamson allows such a result only when the plea agreement expressly provides that the defendant's breach will result in reinstatement of the original charges. The plea agreement in Adamson specifically provided that if Adamson failed to abide by the terms of the agreement, the original first-degree murder charge would be automatically reinstated and the parties would be returned to the positions they occupied before the agreement. Although the Adam-son plea agreement did not explicitly mention the double jeopardy clause or explicitly declare that Adamson would waive his double jeopardy rights if he violated the agreement, the Supreme Court deemed the above-referenced provisions to be the functional equivalent of an explicit waiver of Adamson's double jeopardy rights in the event he breached the agreement. Dutton interprets Adamson as standing for the rule that, if the government allows a defendant to plead guilty to reduced charges, and if the government wishes to be able to reinstate the original charges if the defendant breaches the plea agreement, then the agreement itself must explicitly declare that one of the consequences of a breach is reinstatement of the original charges. Dutton relies on eases holding that waivers of double jeopardy rights must be intentional. He argues that if Adamson were interpreted to allow the State to reinstate the original charges even when the plea agreement is silent on this point, this would, in effect, lend judicial recognition to unintended forfeitures of the constitutional guarantee against double jeopardy. Dutton is correct that double jeopardy rights can not be forfeited unintentionally. Nevertheless, criminal defendants may relinquish their double jeopardy rights by their conduct (or by the conduct of their attorneys) even though no judicial officer ever explains the double jeopardy consequences of this conduct to the defendant beforehand. This principle was addressed by the United States Supreme Court in United States v. Scott. The defendant in Scott was charged with three counts of distributing narcotics. In the middle of his jury trial, Scott asked the trial judge to dismiss two of the counts because of prejudicial pre-indictment delay; the trial judge granted Scott's motion. The government sought to appeal this dismissal, but the federal appeals court ruled that the government's appeal was barred by the double jeopardy clause — because the trial judge's ruling had been issued in the middle of trial, after jeopardy had attached. The Supreme Court reversed the federal appeals court and allowed the government to appeal the dismissal of the two counts. The Court held that the double jeopardy clause did not preclude the government's appeal because Scott had elected to seek termination of his trial on the two counts, and because Scott sought this termination "on grounds unrelated to guilt or innocence". Because Scott chose to seek termination of the already-commenced jury trial on grounds that did not constitute a factual acquittal, Scott suffered "no injury cognizable under the Double Jeopardy Clause" when the government appealed the trial judge's dismissal of the two counts. The Supreme Court declared that its decision was not based on any finding that Scott had "waived" his protection against double jeopardy — in the sense of formally and voluntarily relinquishing a known right. Rather, the Supreme Court held, no such formal waiver was required, for "the Double Jeopardy Clause . does not relieve a defendant from the consequences of his voluntary choice." A decade later, in United States v. Broce , the Supreme Court elaborated on this theme, holding that a potential double jeopardy defense was waived by a defendant's guilty plea even though the defendant had not focused on the possibility of a double jeopardy defense when he pleaded guilty. The Court stated that the defendant's "[r]e-linquishment [of the potential double jeopardy defense] derives not from any inquiry into [the] defendant's subjective understanding of the range of potential defenses, but from the admissions [he] necessarily made upon entry of a voluntary plea of guilty." Thus, defendants relinquish their protection against being tried twice for the same crime when they file an appeal , yet there is no requirement that a notice of appeal be accompanied by the defendant's affidavit acknowledging this waiver. Similarly, a defense motion for mistrial constitutes a waiver of the defendant's double jeopardy objection to a second trial , yet our law does not require the trial judge to address the defendant personally and secure an explicit waiver of double jeopardy rights before granting the mistrial motion. In both cases, the relinquishment or "waiver" of double jeopardy rights is simply a legal consequence of the defendant's action. Courts have applied this same rationale to a defendant's breach of a plea agreement. Even though a plea agreement may not explicitly list reinstatement of the original charges as one of the consequences of a material breach, courts nevertheless conclude that the government can normally seek rescission- — -a return to the status quo ante — if the defendant commits a material breach. For example, in People ex rel. VanMeveren v. District Court , the plea agreement called for a specified sentence. After the defendant entered his plea and the agreed-upon sentence was imposed, the defendant filed a motion for reduction of the sentence under a Colorado court rule similar to former Alaska Criminal Rule 35(a). The Colorado Supreme Court held that, because the plea agreement did not expressly forbid the defendant from filing a motion to reduce his sentence, the defendant had the right to file the motion and the sentencing court had the authority to grant it. The Colorado court also held, however, that if the sentencing court granted the motion and reduced the defendant's sentence below the agreed-upon sentence, the government then had a right to rescind the plea agreement. The Michigan Court of Appeals reached a similar result in People v. Siebert. The two defendants in Siebert were initially charged with several drug and gambling offenses, the most serious of which was delivery of over 650 grams of cocaine — a crime that carries a penalty of life imprisonment without parole in Michigan. The defendants agreed to plead guilty to a lesser offense (delivery of between 225 and 650 grams of cocaine) and to accept a sentence of 20 to 30 years' impris onment; in exchange, the government dismissed the other charges. At the sentencing hearing, however, the judge declared that the negotiated sentences were inappropriately severe. He sentenced one defendant to 5 to 30 years, the other defendant to 3 to 30 years. As a result, the prosecutor asked the court's permission to withdraw from the plea agreements. When the trial court refused to allow this, the government appealed. The defendants argued that if the government was allowed to reinstate the original charge after the defendants had already been sentenced for a lesser included offense, this would violate the double jeopardy clause. The Michigan Court of Appeals rejected this argument: In the instant case, the [trial] court's action in accepting pleas of guilty [to] delivery of between 225 and 650 grams of cocaine, without honoring the conditions placed on the charge reduction by the [government], was violative of [the principle that a trial judge can not, over the prosecutor's objection, accept a defendant's plea to a lesser included offense and dismiss the charged greater offense].... [The] defendants in this case have not been tried for the greater offense [i.e., delivery of 650 grams or more], and a plea conviction on a lesser charge before trial . is not considered an acquittal of the greater charge. [Citations omitted] . [T]he trial court made no factual determination that one or more elements of the greater offense could not be established. Therefore, the Double Jeopardy Clause does not bar proceedings on the greater charge [when] the [defendant's] convictions and sentences for the lesser charge [are vacated]. Siebert, 507 N.W.2d at 223 (footnotes omitted). The defendants contended that this result would violate the Supreme Court's decision in Adamson. They argued that, under Adamson, reinstatement of the original charges is constitutionally permissible only if the plea agreement explicitly reserves this right to the government — that is, only if one or more clauses of the agreement explicitly required the defendants to waive their double jeopardy rights. The Michigan Court of Appeals answered: We reject [the] defendants' argument that[,] because the plea agreements do not expressly state that the prosecutor has [the] right to withdraw from the agreements and reinstate the original charges in the event the agreement is not honored, the prosecutor has no such right and the Double Jeopardy Clause would be violated by reinstatement of the original charges. In Ricketts v. Adamson, [citation omitted], relied on by [the] defendants, . [t]he [plea] agreement stated that if the defendant breached the agreement, the original charge would be reinstated. . While the Supreme Court concluded that the defendant, according to the terms of the agreement, waived any double jeopardy rights, [the Court] did not hold that the Double Jeopardy Clause would have been violated had the agreement not provided for reinstatement of the charges. Siebert, 507 N.W.2d at 223-24. Courts have reached analogous decisions in cases where a defendant, having negotiated a plea agreement, later challenges not just the sentence but the entire underlying plea. The Virginia Court of Appeals faced such a case in Peterson v. Commonwealth, The defendant in Peterson was initially charged with a felony, possession of marijuana with intent to distribute. In exchange for dismissal of this felony, Peterson agreed to plead guilty to a misdemeanor, simple possession of marijuana, and to receive a sentence of 12 months in jail. Peterson entered this plea in district court and received the negotiated sentence. Ten days later, however, Peterson appealed her conviction to the circuit court. By doing this, Peterson vacated not only her jail sentence but also her entire conviction — for under Virginia law, a defendant who appeals a district court conviction to the circuit court is entitled to a trial de novo. In response to Peterson's appeal, the prosecutor reinstated the original felony charge. Peterson was tried and convicted of this felony. On appeal, Peterson argued that the government's reinstatement of the felony charge (possession of marijuana with intent to distribute) violated the double jeopardy clause. Relying on Brown v. Ohio , Peterson asserted that she could not be convicted of felony possession because she had already been convicted of a lesser included offense arising out of the same transaction. The Virginia court rejected this argument: [Sjeveral federal and state courts [have addressed the analogous question of] whether retrying a defendant who has successfully appealed his plea-based conviction [on a lesser charge] violates double jeopardy. Those courts . have consistently answered this inquiry in the negative. [Citations omitted] These courts reason that retrial on the original charges after a guilty plea [on a lesser included charge] has been reversed and vacated on appeal does not constitute double jeopardy; rather, [the] jeopardy of the first trial continues through the appeal and into the subsequent retrial. Peterson, 363 S.E.2d at 446. Similarly, in Village of Chagrin Falls v. Katelanos , the defendant was initially charged with driving while intoxicated but, at his arraignment, he agreed to plead no contest to a reduced charge ("driving with an excessive alcohol content") in exchange for the government's dismissal of the DWI charge. The defendant was convicted on his plea and sentenced, but he later filed an appeal challenging the validity of his plea. The Ohio Court of Appeals concluded that Katelanos's plea should be vacated because the arraigning judge had failed to adequately explain the consequences of the plea. Having reached this conclusion, the court then held that the government was free to reinstate the original charge against Katelanos— even though the plea agreement made no mention of what should happen if Katelanos later challenged his plea: Since the improper conviction resulted from a defective plea, the defendant has not performed his part of the . plea bargain. Hence, we must vacate the [trial] court's action and reinstate all the original charges. Katelanos, 561 N.E.2d at 994. Applying the foregoing double jeopardy holdings to Dutton's case, we conclude that the double jeopardy clause did not bar reinstatement of the original third-degree assault charge after Dutton withdrew his plea to the federal charge. Judge Weeks found that Dutton's plea agreement with the State hinged on the fact that Dutton would be convicted and sentenced on at least one federal felony — that this fact was crucial to the State's willingness to dismiss the third-degree assault charge and allow Dutton to plead to the reduced charge of fourth-degree assault. When, following his sentencing in state court, Dutton withdrew his federal plea, he put himself in a legal position analogous to the defendants in District Court, Siebert, Peterson, and Katelanos. That is, Dutton received the anticipated benefit of his bargain with the State, and then he voluntarily took action that defeated the State's expected benefit. Even though Dutton's plea agreement with the State did not contain an explicit provision outlining the State's remedies if Dutton withdrew his federal plea, we nevertheless conclude that the State was entitled to rescission of the plea agreement — return of the parties to the status quo ante, and reinstatement of the original charge. Dutton's attack on one of the trial court's evidentiary rulings. Aside from his arguments concerning his plea agreement and the double jeopardy clause, Dutton also argues that his conviction should be reversed because the superior court allowed the State to introduce certain evidence at his trial — photographs of firearms, 24,000 rounds of live ammunition, and thirty-eight knives that the authorities seized from Dutton's campsite at Glacier Bay. Dut-ton claims that this evidence was unfairly prejudicial and should have been excluded under Alaska Evidence Rules 403 and 404(b). Judge Weeks allowed the State to introduce this evidence because he concluded that Dutton's possession of this arsenal was relevant to demonstrate Dutton's state of mind at the time he accosted the victim, Foley, and aimed the .44 magnum handgun at him. This evidence, Judge Weeks ruled, tended to support the State's allegation that Dutton had acted recklessly when he placed Foley in fear of imminent serious physical injury — a culpable mental state that was a necessary element of third-degree assault. In Lerchenstein v. State , this court upheld the admission of evidence that the defendant had acted in an angry, aggressive, and combative manner during the hour preceding a confrontation that resulted in a series of third-degree assaults and one homicide. We concluded that this evidence was relevant to the issue of whether the defendant had acted reasonably. For the same reason, we conclude that Judge Weeks did not abuse his discretion when he allowed the State to introduce the evidence of Dutton's stockpile of arms and ammunition. Conclusion The judgement of the superior court is AFFIRMED. . See Closson v. State, 812 P.2d 966, 970 (Alaska 1991). . See id. . See id. at 974. . Howarth v. First National Bank of Anchorage, 596 P.2d 1164, 1167 (Alaska 1979); see also Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1281 (Alaska 1985). . See Howarth, 596 P.2d at 1167 n. 8. . See Closson v. State, 784 P.2d 661, 665 (Alaska App.1989), rev'd on other grounds, 812 P.2d 966 (Alaska 1991). . 825 F.2d 572 (1st Cir.1987). . See Brown v. Ohio, 432 U.S. 161, 168, 97 S.Ct. 2221, 2226-27, 53 L.Ed.2d 187 (1977). . 483 U.S. 1, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987). .See id., 483 U.S. at 7-8, 107 S.Ct. at 2684. . See id., 483 U.S. at 9, 107 S.Ct. at 2685. . See id., 483 U.S. at 9-10, 107 S.Ct. at 2685-86. . See generally Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975). . 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978). . Scott, 437 U.S. at 96, 98 S.Ct. at 2196. . Id., 437 U.S. at 99, 98 S.Ct. at 2198. . See Green v. United States, 355 U.S. 184, 191, 78 S.Ct. 221, 226, 2 L.Ed.2d 199 (1957). . Scott, 437 U.S. at 99, 98 S.Ct. at 2198. . 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). . Id., 488 U.S. at 573-74, 109 S.Ct. at 764. . See United States v. Ball, 163 U.S. 662, 671-72, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896). . See United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971). . 195 Colo. 34, 575 P.2d 4 (Colo.1978). . Former Criminal Rule 35(a) authorized trial courts to "reduce a sentence within 120 days of the day it [was] imposed". This reduction could be based simply on the court's desire to reconsider and show mercy. See Thomas v. State, 566 P.2d 630, 639 n. 34 (Alaska 1977); State v. Tinsley, 928 P.2d 1220, 1223 (Alaska App.1996). . See People v. District Court, 575 P.2d at 7. . 201 Mich.App. 402, 507 N.W.2d 211 (Mich.App.1993). . See id. at 214. . See id. . See id. . See id. at 220. . 5 Va.App. 389, 363 S.E.2d 440 (Va.App.1987). . See id. at 443. . See id. . 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). . 54 Ohio App.3d 157, 561 N.E.2d 992 (Ohio App.1988). . 697 P.2d 312, 317-18 (Alaska App.1985), aff'd, 726 P.2d 546 (Alaska 1986).

11551482

Paul Charles FLYNN, Alexie Paul Flynn, natural father of Paul Charles Flynn, and Maggie Flynn, natural mother of Paul Charles Flynn, Appellants, v. E.I. du PONT de NEMOURS AND COMPANY, and Remington Arms Company, Inc., Appellees

Flynn v. E.I. du Pont de Nemours & Co.

1999-09-17

Nos. S-8551

97

101

988 P.2d 97

988

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:34:30.600240+00:00

CAP

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

Paul Charles FLYNN, Alexie Paul Flynn, natural father of Paul Charles Flynn, and Maggie Flynn, natural mother of Paul Charles Flynn, Appellants, v. E.I. du PONT de NEMOURS AND COMPANY, and Remington Arms Company, Inc., Appellees.

Paul Charles FLYNN, Alexie Paul Flynn, natural father of Paul Charles Flynn, and Maggie Flynn, natural mother of Paul Charles Flynn, Appellants, v. E.I. du PONT de NEMOURS AND COMPANY, and Remington Arms Company, Inc., Appellees. Nos. S-8551. Supreme Court of Alaska. Sept. 17, 1999. Rehearing Denied Nov. 10, 1999. Phillip Paul Weidner, Weidner & Associates, Inc., Anchorage, for Appellants. John M. Conway, Atkinson, Conway & Gagnon, Anchorage, Dale G. Wills and James P. Dorr, Wildman, Harrold, Allen & Dixon, Chicago, Illinois, and Karin S. Schwartz, De-bevoise & Plimpton, New York, New York, for Appellees. Before MATTHEWS, Chief Justice, EASTAUGH, PARE, BRYNER, and CARPENETI, Justices.

1961

12493

OPINION EASTAUGH, Justice. I. INTRODUCTION After settling his products liability claim, Paul Flynn moved for modification of a protective order requiring him to return all documents designated confidential by the defendant manufacturer. Flynn had stipulated to entry of the order. The court denied his motion and Flynn appeals. Because Flynn has not demonstrated adequate justification for relief from the order to which he had agreed, we affirm. II. FACTS AND PROCEEDINGS Paul Flynn and his parents (Flynn) sued E.I. du Pont de Nemours and Company and its subsidiary, Remington Arms Company, (collectively du Pont) for personal injuries allegedly caused by the accidental discharge of a Remington Model 552 rifle. During litigation, du Pont required Flynn to stipulate to entry of a protective order before it produced copies of thousands of documents Flynn had sought through discovery. The protective order required Flynn, upon resolution of the dispute, to return all documents Remington designated confidential. In July 1993 Flynn's attorney signed and returned the stipulation, thus agreeing to entry of the order; but by letter to du Pont's attorney, Flynn's counsel also stated that he reserved the right to seek later modification. Four years later, after settling the personal injury claim, Flynn sought modification of the order. Flynn's attorney, Phillip Paul Weidner, stated in a supporting affidavit that he had agreed to the order on an "emergency, temporary basis" in response to du Pont's insistence, but that he wished to retain the documents for "professional and educational purposes." Du Pont opposed modification. The court denied Flynn's motion, as well as his motion for reconsideration. It determined that Flynn had failed to demonstrate that modification was warranted. Flynn appeals. III.DISCUSSION A. Standard of Review Although requests for modification of discovery orders are generally reviewed for abuse of discretion, this case turns on two unresolved questions of law. We review these questions — the appropriate legal standard governing modification of discovery orders, and the proper placement of the burden of proof — de novo. In doing so, we will adopt the rule of law that is most persuasive in light of precedent, reason, and policy. B. Burden of Proof The superior court required Flynn to demonstrate that modification was warranted because he had voluntarily stipulated to the protective order. Flynn argues that he should not have borne the burden of proof. We disagree. Jochims v. Isuzu Motors, Ltd. is directly relevant. The plaintiff there sought to modify a stipulated protective order. The district court rejected his contention that it was the defendant's burden to "demonstrate the need for maintaining the existing protective order." It noted that there is general unanimity among courts that a party to a stipulated order seeking to modify that order bears the burden of demonstrating "particular good cause" in order to succeed. The court held:. The courts' rationale for this standard is that a party which in good faith negotiates a stipulated protective order and then proceeds to produce documents pursuant to that protective order is entitled to the benefit of its bargain; namely, to rely upon the terms of the stipulated protective order. We agree with this reasoning, and conclude that the superior court did not err in placing the burden of proof on Flynn. C. Request for Modification of Stipulated Order A stipulated protective order is founded on an agreement between parties. We will not disturb such an agreement absent justification. We find no such justification here. Flynn has advanced two principal rationales for modification. First, Flynn's counsel asserts that he wishes to retain the documents for his own benefit in order to maintain the integrity of his files and to study them for purposes of future litigation. Second, he asserts that he wishes to retain the documents for purposes of public access because they may be destroyed under du Pont's document destruction policy. He also claims that the interest in public access to these documents outweighs any confidentiality concerns du Pont may have because the "blanket" protective order he signed covers a significant number of documents which contain neither trade secrets nor privileged information. Du Pont argues that retention of the documents for the sole benefit of Flynn's attorney cannot justify rescission of the parties' knowing, voluntary, court-ratified agreement. Because Flynn's attorney currently has no pending claims against du Pont, du Pont contends that any claim that the documents will be useful to him in future litigation is purely speculative. Du Pont also asserts that modification is not warranted by the possibility the documents might be destroyed. It asserts that Flynn's evidence of du Pont's document destruction policy is outdated and inaccurate. At oral argument before us, counsel for du Pont represented that the documents will be available to future litigants as long as there is an ongoing need for them in litigation and assured us that "there is no threat to the existence of these documents." We accept those representations as the guarantee of du Pont and its counsel that the documents will remain available and will not simply be destroyed upon the conclusion of Flynn's appeal in this case. We recognize the significant policy concerns underlying Flynn's attempt to retain the documents to maintain their availability to future litigants in the event of their destruction by du Pont. Nonetheless, having agreed to and benefitted from the protective order, Flynn cannot obtain modification of the order for solely self-interested reasons or speculative public policy concerns. Our decision here is informed by the opinions of federal courts considering this issue. Some federal courts have permitted modification of protective orders when the interests of third parties or the public outweigh the protected party's interest in maintaining secrecy. But Flynn has cited no authority supporting modification under the circumstances found here. The key cases allowing modification involve relief sought by or for the benefit of third parties. They support modification for general public policy reasons, not for the benefit of an original party or his attorney. Flynn's request exceeds the boundaries staked out by those courts that freely allow modification. The superior court correctly concluded that Flynn had offered no reason justifying relief from the protective order. D. Duress Flynn also argues that the agreement should be voided because he entered into it under duress. To prevail on a claim of duress, Flynn must establish that: (1) he involuntarily accepted du Pont's terms; (2) the circumstances permitted no alternative; and (3) those circumstances were the result of coercive acts by du Pont. Flynn has failed to demonstrate that he lacked viable alternatives to accepting du Pont's terms. He could have tried to negotiate different terms or challenged du Pont's terms in the superior court. If necessary, he could have sought to continue the scheduled discovery to give the court time to resolve this dispute. Therefore, we find no basis for his claim of duress. E. Letter Reserving Right to Seek Modification The letter of Flynn's counsel accompanying the stipulation and purporting to reserve the right to seek modification of the order does not help either his claim of duress or his request for modification. It stated: As we discussed in our conversation, and pursuant to our understanding reached in same, I am signing this stipulation so that the materials you have been holding pursuant to our previous discovery requests, and so that the materials we anticipate receiving copies of in our upcoming discovery inspection . during the week of July 19, 1993 may be provided by your clients, with the specific understanding that I am reserving my right to approach the court to modify any of the terms and conditions of same. That is, I maintain that certain recitations and conditions in said order are not well taken and warranted, however, I am agreeing to sign same at this juncture to avoid further delay in discovery, but I will be approaching the court to modify same, on the grounds the order sought is over broad and not justified. This letter permits findings that Flynn's counsel believed himself to be acting under pressure from du Pont, that he considered the order overbroad, and that he communicated his dissatisfaction to du Pont. But counsel's affidavit accomplishes the same thing. A mere subjective perception of urgency — or mere dissatisfaction with the terms of an agreement — does not suffice to establish a claim of duress voiding that agreement. Nor do the recitations in this letter justify modification of the agreement. By its own terms, the letter has no substantive effect. It does not enlarge Flynn's preexisting rights. It simply reserves his right to seek modification; he has now exercised that right. Counsel's statement that he believed certain provisions in the order to be unwarranted does not affect our assessment of the merits of his motion. And it does not affect Flynn's obligations under the agreement his counsel signed. IV. CONCLUSION We AFFIRM the superior court's denial of Flynn's motion. . Although it appears that the real beneficiary of modification would be Flynn's attorney, not Flynn, we attribute the arguments for modification to Flynn because Paul Flynn was the lead party seeking modification below and he is the lead appellant. . We generally review discovery orders for abuse of discretion. See Jones v. Jennings, 788 P.2d 732, 735 (Alaska 1990). Federal courts also apply this standard to requests for modification. See Beckman Indus., Inc. v. International Ins. Co., 966 F.2d 470, 472 (9th Cir.1992). . See Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). . See id. . 145 F.R.D. 499 (S.D.Iowa 1992). This case is sometimes referred to as "Jochims I" to distinguish it from two other similarly titled cases. See Jochims v. Isuzu Motors Ltd., 148 F.R.D. 624 (S.D.Iowa 1993) (Jochims II), modified by Jochims v. Isuzu Motors Ltd., 151 F.R.D. 338 (S.D.Iowa 1993) (Jochims III). . See Jochims I, 145 F.R.D. at 500-01. . Id. at 501. . Id. at 501. In contrast, courts disagree about the proper placement of the burden of proof in requests for modification initiated by third party intervenors. See 8 Charles Alan Wright et al., Federal Practice and Procedure § 2044.1, at 574-84 (2d ed.1994) (cataloging a range of approaches towards modification from permissive to strict). Compare Wilk v. American Med. Ass'n, 635 F.2d 1295, 1299 (7th Cir.1980) (allowing permissive modification), with Martindell v. International Tel. & Tel. Corp., 594 F.2d 291, 296 (2d Cir.1979) (imposing strict limitations on modification). 9. Jochims I, 145 F.R.D. at 501-02 (citations omitted). . As du Pont observes, we have recognized spoliation of evidence as a tort in Alaska. See Hazen v. Municipality of Anchorage, 718 P.2d 456, 463-64 (Alaska 1986). . See, e.g., Beckman Indus., Inc. v. International Ins. Co., 966 F.2d 470, 475-76 (9th Cir.1992); Wilk, 635 F.2d at 1299; Kraszewski v. State Farm Gen. Ins. Co., 139 F.R.D. 156, 159-60 (N.D.Cal.1991). . See, e.g., Beckman, 966 F.2d at 475 (involving third party intervenors seeking modification); Kraszewski, 139 F.R.D. at 158-60 (involving modification sought by class counsel to benefit plaintiffs in another pending suit). . See Helstrom v. North Slope Borough, 797 P.2d 1192, 1197 (Alaska 1990). . According to du Pont, it conditioned copying, but not inspection, of the documents on a stipulated protected order. According to Flynn, du Pont also conditioned inspection of the documents on signing the order.

11555274

Marina SCHAFFER, Appellant, v. STATE of Alaska, Appellee

Schaffer v. State

1999-10-01

No. A-7080

610

618

988 P.2d 610

988

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T19:34:30.600240+00:00

CAP

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

Marina SCHAFFER, Appellant, v. STATE of Alaska, Appellee.

Marina SCHAFFER, Appellant, v. STATE of Alaska, Appellee. No. A-7080. Court of Appeals of Alaska. Oct. 1, 1999. Order Denying Rehearing Oct. 29, 1999. Rex Lamont Butler, Anchorage, for Appellant. John A. Scukanec, 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.

4366

27363

OPINION MANNHEIMER, Judge. When Marina Schaffer checked in for a flight at the Fairbanks airport, the Alaska Airlines ticket agent affixed special white tags to her carry-on luggage — a purse and a backpack. The ticket agent did this because Schaffer fit a "profile" published by the Federal Aviation Administration, a set of criteria designed to identify people who might be carrying weapons, explosives, or incendiary devices. Unbeknownst to Schaffer, the white tag was a directive to the people at the X-ray security station, telling them to hand-search Schaffer's purse and backpack. When Schaffer presented herself at the security station, she put her purse and backpack through the X-ray machine. When the items had gone through, an agent took Schaf-fer aside and told her that the contents of her carry-on luggage would have to be removed and examined. Schaffer initially agreed to this, but there is conflicting evidence as to whether she withdrew her consent during the ensuing search. The agent thoroughly searched Schaffer's purse and then began removing all the contents of Schaffer's backpack. Among the contents of the backpack, the agent found a pair of socks with something wrapped inside them. The agent unwrapped the socks and found a small red zippered pouch, described in the testimony as a coin purse. Unzipping this purse, the agent discovered a small baggie containing cocaine. Schaffer ultimately pleaded no contest to possession of cocaine preserving her right to contest the legality of the search of her belongings. The superior court upheld the legality of this search on two theories. The court first ruled that, because the search was instigated by an airline employee and performed by a private security agent, the search did not involve state action. Rather, it was a "private" search — a search not governed by the search and seizure provisions of the federal and state constitutions. Alternatively, the superior court ruled that Schaffer agreed to have the security agent search her belongings; thus, the search was justified under the "consent" exception to the warrant requirement. As explained in this opinion, both of the superior court's rationales for upholding this search are at odds with the Alaska Supreme Court's decision in State v. Salit, If the search of Schaffer's belongings is supportable, it must be under the "administrative search" exception to the warrant requirement. Because the superior court did not consider this theory or make any findings of fact concerning it, we must remand this case to the superior court. The search of Schaffer's belongings was "state action", not a private search, and thus the search is governed by the Fourth Amendment. When Schaffer litigated her suppression motion, Superior Court Judge pro tern Sigurd E. Murphy ruled that the search of Schaffer's purse and backpack was a "private" search conducted by airline employees. Relying on the principle that private searches are not governed by the constitutional limitations on search and seizure , Judge Murphy ruled that the search of Schaffer's belongings was legal regardless of whether the Fourth Amendment to the United States Constitution or Article I, Section 14 of the Alaska Constitution would have barred government officers from performing the same search. "[T]he search and seizure clauses of the Alaska and United States Constitutions apply only to governmental action". A private search — "one that is neither instigated nor joined in by the state" — does not violate either constitution. When the issue of state action arises, the underlying question to be litigated is whether, under the particular circumstances, the government so substantially instigated or insinuated itself into the private person's action that the search can no longer be deemed "private". Even when we view the evidence in the light most favorable to the superior court's ruling , we conclude that the search of Schaffer's belongings was state action, not a private search. According to the testimony, the Federal Aviation Authority directed all airline companies to enforce the "white tag" procedures by (1) screening all passengers using the FAA's profile and then (2) hand-searching the carry-on luggage of all passengers who fit the profile. The FAA directive warned the airlines that the FAA would impose an $11,000 fine each time a passenger fitting the profile was not subjected to the mandated search. Obviously, airline companies share the government's interest in not having airplanes blown up or hijacked. But just as obviously, the government did not trust the airlines to voluntarily apply the FAA's screening profile and then hand-search all of the selected passengers' carry-on luggage. So, to motivate the airlines to comply with the government's wishes, the FAA threatened the airlines with administrative fines — effectively coercing them to do the government's bidding. The ensuing searches (including the search at issue in Schaffer's case) constitute "state action". "Quite clearly, a search is not private in nature if it has been ordered . by a government official." The Alaska Supreme Court expressly rejected the "private search" rationale in State v. Salit: The State . suggests that the initial opening of the [airline passenger's] handbag, and therefore the discovery of the [drug] paraphernalia, was not state action because [the airport security agents] are employees of a private corporation. [This claim] is without merit. Every court that has examined the screening program has [deemed it to be] state action. Screening of carry-on luggage is required by law. 613 P.2d at 249 n. 11. Thus, the search of Schaffer's belongings is governed by the constitutional restrictions on search and seizure. The search of Schaffer's carry-on luggage can not be justified as a consent search. Judge Murphy offered an alternative rationale for denying Schaffer's suppression motion: he ruled that, even if the search of Schaffer's belongings constituted state action and would normally require a warrant, the search was nevertheless justified by the "consent" exception to the warrant requirement. The Court: I'm finding, based on what has been presented here, that [Schaffer] did consent to the search. She went in[to] the [security] area, . [knowing] that a search might take place before she got on the . plane.... She may not have realized that it would be [so] intensive or that they would open up everything that was there, but she realized [that] the contents could be searched. And once she [realized] that the search was going to be a little more detailed . than she [anticipated], she had an opportunity to stop it, [but she] didn't take that opportunity[.] What I was looking for, quite frankly, . was [some action akin] to grabbing [the luggage] and starting to walk away, saying "I'm out of here," or "I'm leaving", or "I don't want you to do this," [or] "I don't want to take the flight," or [any] number of other things . that [w]ould have said, [in effect,] "I withdraw my consent." . I didn't hear [anything] . to indicate that she terminated the search that she'd voluntarily allowed. Even though she didn't like what was happening, she didn't stop it. These comments show that Judge Murphy's ruling was based on four premises: (1) that Schaffer voluntarily consented to at least some level of inspection of her carry-on luggage when she presented herself at the security station; (2) that the security agent then asked Schaffer to consent to a more thorough inspection, beyond the normal X-raying; (3) that Schaffer voluntarily consented to the more intrusive, hand-inspection of her belongings; and (4) that Schaffer never withdrew that consent. A person may voluntarily consent to have government officials conduct a search or seizure that would otherwise be barred by the constitution. But a person's "consent to a [warrantless] search, in order to be voluntary, must be unequivocal, specific and intelligently given, [and] uncontaminated by any duress or eoercion[.]" When the government relies on the "consent" exception to the warrant requirement, two main issues must be litigated: did the defendant indeed consent, and did the defendant do so with the requisite voluntari ness? Courts assess these issues by examining all of the surrounding circumstances. In the context of airport security searches, the basic circumstances are well-known to all air travelers. They can be summarized as follows: Under the current comprehensive [hijacker] screening system [in place at United States airports], as the passenger approaches the boarding area (often an entryway to a concourse where there are many boarding points)[,] he will be required to place all carry-on items on a conveyor belt leading to an X-ray device. If the X-ray detects an object within a suspicious configuration, then the passenger may not proceed without opening the bag or other container for inspection. While the carry-on items are being screened, the passenger is directed to pass through a magnetometer device of the walk-through type. If the magnetometer is activated, the passenger is requested to divest himself of all metal objects and repeat the process. In those few instances in which the machine is activated once again, the passenger may not proceed without clearing up the matter. This may be done by the passenger extracting additional items from his pockets and then passing the magnetometer test, by his submitting to more particularized inspection by a hand-held magnetometer which pinpoints the [suspicious] object, or by his submitting to a frisk. LaFave, § 10.6(a), Vol. 4, p. 620. Some courts have relied on "consent" as the Fourth Amendment rationale for these systematic searches of all boarding airline passengers. But LaFave concludes that "this approach is basically unsound". La-Fave argues that, if courts adhere to the recognized standards for determining the voluntariness of a person's consent to search, the consent exception could never justify all of the searches that are conducted during the hijacker screening process: Rather, . [given] the nature of the established screening process[,] . the attendant circumstances will usually establish nothing more than acquiescence to apparent lawful authority. [E]ven if [the express] assent [of the passenger] were obtained, the choices with which the passenger is confronted are such that volun-tariness will ordinarily be lacking. Many courts have thus concluded that screening inspections were not consensual when the passenger submitted to the search in order to be able to board his flight and reach his destination. LaFave, § 10.6(g), Vol. 4, pp. 644^15 (footnotes omitted). Because most airline passengers never express their assent (indeed, are never asked to assent) to the searches that occur at airports, some courts have relied on a theory of implicit consent to justify the search of airline passengers and their belongings. Under this theory, the passengers' consent to be searched is inferred from the fact that people freely choose to travel by airplane, and they make this choice knowing that they and their possessions will be subject to screening before they are allowed to board. It is questionable whether air travel, with its attendant security searches, is truly an optional activity in Alaska. In many towns and villages, air travel is the only realistic way to enter and leave. Even in those towns served by road, a trip by automobile to the Lower 48 is time-consuming, relatively costly, and involves border searches by two different national governments. Thus, one might reasonably doubt whether an Alaska traveler "freely" chooses to submit to airport searches. Moreover, as LaFave points out, the problem with the "consent" theory is that it conceals — and fails to address — the more fundamental question: is the government's regulation of airline passengers reasonable under the Fourth Amendment? If it were really true that consent m[ight] be [inferred] because an airline passenger knows of the screening process, then it would logically follow that if the government tomorrow decided to subject those traveling by train, bus or car to similar screening', notwithstanding the absence of any need to do so, all travelers would be deemed to have consented to searches of their persons and effects. This conclusion not only offends common sense, but flies in the face of the most fundamental Fourth Amendment principle that the government cannot "avoid the restrictions of the Fourth Amendment by notifying the public that all telephone lines would be tapped or that all homes would be searched." LaFave, § 10.6(g), Vol. 4, p. 646 (quoting United States v. Davis, 482 F.2d 893, 906 (9th. Cir.1973)). Because of these concerns, most courts have ruled that the screening of boarding airline passengers is justified, not under the consent exception to the warrant requirement, but rather under the administrative search exception. The Alaska Supreme Court adopted this view of the matter in State v. Salit. In Salit, the State advanced essentially the same "consent" theory that Judge Murphy relied on in Schaffer's case. The State suggested that airport searches could be justified as consent searches because (1) the public generally knows that airline passengers' bags can be searched, and (2) notices to this effect are posted at virtually every airport. But the supreme court found the State's analysis "slightly askew": Although the notices and foreknowledge of passengers are relevant to the reasonableness of the search [under the administrative search exception], they do not make this, or any other hijacking search, a consent search. "Consent to a search, in order to be voluntary, must be unequivocal, specific and intelligently given, uncontaminated by any duress and coercion.... " It is clear that Salit did not expressly consent to the search of [his] garment bag in the way that person who says, "Officer, you may search my home," consents to a search. [T]he mere fact that persons are on notice that they may be searched cannot, by itself, be the basis for [inferring] consent, [for this would] "mean that any kind of governmental intrusion is permissible if it has occurred often enough." Salit, 613 P.2d at 264. The supreme court therefore ruled that the search of Salit's garment bag could not be justified as a consent search. The facts of Schaffer's case are different from the facts in Salit in one respect: security personnel searched Salit's garment bag without asking him , while the security agent in Schaffer's case did inform her of the impending search of her belongings. According to the security agent's testimony, she informed Schaffer that, because the purse and the backpack had been "white tagged", she was required to remove and search the contents of the luggage. The security agent asked Schaffer if it was all right to do this, and Schaffer allegedly said yes. Viewing this testimony in the light most favorable to the State, Schaffer expressly assented to the search of her belongings. But express assent is not sufficient. As explained above, a search is not justified by the "consent" exception to the warrant requirement unless the State proves that the consent was voluntary, unequivocal, intelligently given, and not the product of duress or coercion. It is conceivable that an air traveler might freely consent to a search above and beyond the security screening searches routinely conducted at United States airports. But as LaFave points out, even when security agents obtain a passenger's express assent to a search, this assent ordinarily will not constitute a valid "consent". Rather, "the attendant circumstances will usually establish nothing more than acquiescence to apparent lawful authority." This was true in Schaf-fer's case. According to the testimony, Schaffer watched the security agent conduct a thorough search of her purse. The agent examined every item in the purse, removed most of these items, and looked in every area of the purse. When Schaffer asked why the security agent was searching the purse in this manner, the agent replied that this was required. After the security agent finished searching the purse, the agent next began to search Schaffer's backpack. Schaffer interposed, "You don't have to do this," but the security agent continued the search, explaining that she was required to do this. When the security agent came to the pair of socks with the coin purse wrapped inside them, Schaffer said, "Don't touch that," and "put that one back". The security agent nevertheless unwrapped the socks and removed the coin purse, then unzipped the purse and examined its contents. Given this record, we conclude that Schaf-fer's assent to the search of her belongings was "nothing more than acquiescence to apparent lawful authority". It did not constitute the voluntary, uncoerced consent required by our case law and our constitution. The search of Schaffer's belongings is 'potentially justifiable as an administrative search, but this issue can not be decided without farther proceedings in the superior court. As explained above, Salit holds that even though airport security searches are not "consent" searches, they can be justified under the "administrative search" exception to the warrant requirement. The State asks us to uphold the search of Schaffer's belongings on this alternative ground. But several questions of fact must be answered before we can determine whether the search of Schaf-fer's carry-on luggage was a lawful administrative search. According to LaFave, airport security searches can be deemed lawful administrative searches because (1) these searches constitute relatively limited intrusions geared toward finding particular items (weapons, explosives, and incendiary devices) that pose grave danger to airplanes and air travelers; (2) the scrutiny of carry-on luggage is no more intrusive (in both its scope and intensity) than is necessary to achieve the legitimate aims of the screening process (that is, to ensure air travel safety); (3) airline passengers have advance notice that their carry-on luggage will be subjected to these security measures, thus giving passengers the opportunity to place their personal effects in checked luggage; (4) all passengers are subject to the same screening procedures; and (5) passengers are aware that they can avoid the screening process altogether by electing not to board the plane. From the record before us, it is unclear whether the exhaustive inspection of Schaf-fer's belongings can be justified as an administrative search under these criteria. The superior court heard conflicting testimony on some of these issues, and little to no testimony on others. It is, of course, the State's burden to justify any warrantless search. On remand, it will be the State's burden to show that the search of Schaffer's belongings was justified under the administrative search rationale embraced by the Alaska Supreme Court in Salit. Conclusion The superior court gave two reasons for denying Schaffer's suppression motion: first, that the search of Schaffer's belongings was not state action; and second, that Schaffer consented to the search. Both of these reasons were rejected by the Alaska Supreme Court in Salit. It is possible that the search of Schaffer's belongings was a valid administrative search under Salit, but this determi nation can not be made until various issues of fact are resolved. Accordingly, the decision of the superior court is VACATED and this case is remanded for further proceedings on Schaffer's suppression motion. Because the parties have stipulated that this motion is dispositive of the charge against Schaffer, if the superior court rules in Schaffer's favor, the court should then dismiss the charge. We do not retain jurisdiction of this case. . Fourth-degree controlled substance misconduct, AS 11.71.040(a)(3). . 613 P.2d 245 (Alaska 1980). . See Snyder v. State, 585 P.2d 229, 231 (Alaska 1978) ("[S]earches by airline employees, acting for an independent and legitimate airline purpose and not in conjunction with or at the direction of the police, do not violate constitutional prohibitions against unreasonable search and seizure."). . Long v. State, 772 P.2d 1099, 1101 (Alaska App.1989) (citing Snyder, 585 P.2d at 232; Whittemore v. State, 617 P.2d 1, 3 (Alaska 1980); McConnell v. State, 595 P.2d 147, 151 (Alaska 1979); State v. Stump, 547 P.2d 305, 307 (Alaska 1976); Bell v. State, 519 P.2d 804, 807 (Alaska 1974)). . Cf. State v. Laraby, 842 P.2d 1275, 1280 (Alaska App.1992); Long v. State, 772 P.2d at 1101 (applying this rule when assessing the sufficiency of the evidence to support a trial judge's findings of fact). . See United States v. Davis, 482 F.2d 893, 897 (9th Cir.1973), holding that the search of an airline passenger's cariy-on luggage was government action because it was "part of a nationwide anti-hijacking program conceived, directed, and implemented by federal officials in cooperation with air carriers." The court noted that the government had developed the hijacker detection profile and that the FAA had issued a directive that forbade airlines from permitting any person fitting the profile from boarding an airplane unless their carry-on luggage was searched. This case is discussed in Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (3rd ed.1996), § 1.8(c), Vol. 1, p. 240 n. 90. .LaFave, § 1.8(a), Vol. 1, p. 222. See also La-Fave, § 10.6(a), Vol. 4, p. 620: "[S]earches conducted under the [airport security screening] system ., even when [performed] by private guards rather than law enforcement officers, are subject to the requirements of the Fourth Amendment." . See Katz v. United States, 389 U.S. 347, 358 n. 22, 88 S.Ct. 507, 515 n. 22, 19 L.Ed.2d 576, 586 n. 22 (1967); Sleziak v. State, 454 P.2d 252, 256 (Alaska 1969). . Erickson v. State, 507 P.2d 508, 515 (Alaska 1973) (footnote omitted) (quoting Rosenthall v. Henderson, 389 F.2d 514, 516 (6th Cir.1968)). . See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Sleziak v. State, 454 P.2d 252 (Alaska 1969). . See United States v. Miner, 484 F.2d 1075 (9th Cir.1973); United States v. Doran, 482 F.2d 929 (9th Cir.1973); United States v. Mather, 465 F.2d 1035 (5th Cir.1972); Shapiro v. State, 390 So.2d 344 (Fla.1980) (alternative ground of decision). .See the cases noted in LaFave, § 10.6(g), Vol. 4, p. 645 n. 106-08. . LaFave, § 10.6(c), Vol. 4, pp. 628-635. . 613 P.2d at 250-51. . Id. at 253-54. . Quoting, first, Erickson v. State, 507 P.2d 508, 515 (Alaska 1973), and second, United States v. Davis, 482 F.2d 893, 905 (9th Cir.1973). . Salit, 613 P.2d at 248. . LaFave, § 10.6(g), Vol. 4, p. 645. . LaFave, § 10.6(e), Vol. 4, pp. 638-641. .See D'Antorio v. State, 837 P.2d 727, 733 (Alaska App.1992).

9451463

Clayton W. GOTTSCHALK, Appellant, v. STATE of Alaska, Appellee

Gottschalk v. State

2001-11-23

No. A-7572

49

56

36 P.3d 49

36

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T19:34:34.990490+00:00

CAP

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

Clayton W. GOTTSCHALK, Appellant, v. STATE of Alaska, Appellee.

Clayton W. GOTTSCHALK, Appellant, v. STATE of Alaska, Appellee. No. A-7572. Court of Appeals of Alaska. Nov. 23, 2001. Sharon Barr, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant. Douglas H. Kossler, 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.

3318

21116

OPINION MANNHEIMER, Judge. This appeal presents two issues, one involving Alaska's speedy trial rule (Criminal Rule 45) and the other involving the propriety of a peremptory challenge exercised by the prosecutor. Clayton W. Gottschalk was charged with felony driving while intoxicated, felony breath test refusal, driving with a suspended license, and leaving the seene of an accident. His trial was scheduled for October 27, 1998, with trial call scheduled for the day before (October 26th). The first issue on appeal arose because Gottschalk failed to appear at the trial call. With Gottschalk's whereabouts unknown, the superior court issued a warrant for his arrest. Gottschalk was located and arrested four and a half months later, on March 11, 1999. He was re-arraigned the following day, March 12th. The question is this: Because of Gott-schalk's flight and lengthy absence, should his speedy trial calculation under Alaska Criminal Rule 45 have been reset to Day 1 when he was again apprehended? For the reasons explained here, we conclude that it should. The second issue on appeal arose during jury selection at Gottschalk's trial Gott-schalk is an Alaska Native. Early on, Gott-schalk announced that he believed the courts of Alaska had no jurisdiction over him because the United States government had never signed a treaty with his tribe. As the jury was being picked, most prospective jurors were asked their opinion regarding Native sovereignty. The prosecutor's first peremptory challenge was exercised against a Native American woman (a member of a tribe from the Lower 48). Gottschalk's attorney asked the superior court to invalidate this peremptory challenge, claiming that the prosecutor exercised the challenge solely because of the juror's race-conduct declared to be unconstitutional in Batson v. Kentucky. The prosecutor responded that he was concerned by the juror's answers regarding Native sovereignty. The trial judge concluded that this was a well-founded explanation of the prosecutor's peremptory challenge, so he denied Gottschalk's Batson motion to set aside the challenge. On appeal, Gottschalk argues that the juror's answers gave no indication that the juror supported the Native sovereignty movement, and thus the record fails to support the prosecutor's offered explanation for the peremptory challenge. We agree. However, under Batson, the question is not whether the record supports the prosecutor's reasons for distrusting the juror's ability to be fair. Rather, the question is whether the prosecutor honestly believed, based on something other than the juror's race, that the juror would not be a good juror. The superi- or court found that the prosecutor acted in good faith, and not from racial bias or stereotyping. Because this finding is not clearly erroneous, we affirm the superior court's denial of Gottschalk's Batson motion. The Rule 45 issue Gottschalk was initially served with the charging documents on May 25, 1998. This event started the running of the Rule 45 "clock". But, as explained above, Gottschalk failed to appear at his trial call on October 26, 1998. He was arrested on a bench warrant and re-arraigned on March 12, 1999. This court addressed a similar situation in Russell v. Anchorage, 626 P.2d 586 (Alaska App.1981). The defendant in Russell failed to appear for trial and was not arrested until several months later. This court held that the Rule 45 clock should be reset, making the day of Russell's re-arrest a new Day 1, because of the following three factors: (1) the defendant intentionally failled] to appear for court; (2) his disappearance [was] followed by a substantial period of absence; and (8) by virtue of [the] defendant's inaction{,] no progress [was] made in the normal pretrial process before the defendant's disappearance. Id. at 590. Gottschalk concedes that his edse looks like Russell insofar as factors (1) and (2) are concerned, but he contends that, with regard to factor (3), the facts of his case are distinguishable from Russell. Gottschalk argues that substantial pre-trial progress had been made in his case by the time he absconded. Gottschalk points out that: [alt his arraignment, he requested and was appointed a public defender.... [In the next several weeks], he had four pre-in-dictment hearings [as] the parties [attempted] to negotiate the case. After [these negotiations failed and] Mr. Gott schalk was indicted, .: he attempted to file a Bill of Particulars which he had written himself. Thus, unlike the defendant in Russell, Mr. Gottschalk obtained counsel and took action in his case prior to his failure to appear. But Gottschalk's argument hinges on a fairly restrictive reading of Russell's third factor. This narrow construction of the third factor is inconsistent with the way we applied the Russell rule in Conway v. State, 707 P.2d 930 (Alaska App.1985). In Conway, the defendant was arrested [and charged] on February 8, 1980. . .*. [Through counsel, he] negotiated . with the state for a resolution of [his] case without trial. When negotiations broke down, trial was scheduled for the week of November 17, 1980.... Conway did not appear, and . his whereabouts were unknown until he was rearrested approximately two months later. . Id. at 985. 'We held that, under these facts, "[alll three [Russell ] factors are present". Indeed, we stated that the facts of Conway presented "an even more compelling case than Russell for the recommencement of the 120 day period" because Conway, unlike Russell, was represented by counsel. Based on our decision in Conway, we conclude that the Russell rule applies to Gott-schalk's case: Gottschalk's act of absconding and his ensuing lengthy absence caused the Rule 45 clock to be reset. The event that restarted the clock was Gottschalk's re-arraignment on March 12, 1999. Thus, the following day-March 18, 1999-became Day 1 for purposes of Rule 45. Gottschalk was brought to trial 144 days later, on August 3, 1999. However, the proceedings were delayed for two months (from April 2, 1999 through June 8, 1999) when Gottschalk's attorney asked the court to investigate Gottschalk's mental competency to stand trial, Deducting these 62 days from the total elapsed time of 144 days, it is clear that Gottschalk was brought to trial within the 120 days specified by Rule 45. The Batson attack on the prosecutor's peremptory challenge Before Gottschalk's trial began, he asked the superior court to grant him co-counsel status. Gottschalk wanted co-counsel status so that he could present an argument that his attorney did not wish to raise: the contention that, because Gottschalk was of Yupik descent and because no representative of the Yupik people had signed the Treaty of Cesgion of 1867 (i.e., the treaty in which Russia transferred ownership of Alaska to the United States), the courts of Alaska had no jurisdiction over him. Gottschalk's announcement affected the course of jury selection. Because it appeared that Gottschalk would try to inject the issue of Native sovereignty into the trial, both the prosecutor and the defense attorney questioned several prospective jurors concerning their views on Native sovereignty. One of these prospective jurors was Marcia Bannon, who identified herself as a Native American, a member of the Eastern Allegheny Nation. When the prosecutor asked Ms. Bannon to explain her understanding of Native sovereignty, she replied: Well, the Constitution of the United States says . that Native Americans will be treated by treaty as independent nations. So, as to each of those nations, they had to sign a treaty. But Alaska Natives are different, and they-so that's done differently. So if you're talking about sovereignty with the-with Native Americans, that's different than sovereignty for Alaska Natives. The prosecutor then asked Bannon to state her views with respect to the sovereignty of Alaska Native tribes. She answered, I think it's a very complex question, and it needs to be resolved legislatively, and with the people involved. I'm not an Alaska Native. When the defense attorney's turn came, she too asked Bannon about Native sovereignty. This time, Bannon stated, I don't think it's good for the State of Alaska, but I don't want to get into their [i.e., Alaska Native] issues. When the time came for the prosecutor to exercise his first peremptory challenge, he challenged Bannon. The defense attorney objected that the prosecutor's action violated the rule established in Batson v. Kentucky. That is, the defense attorney argued that the prosecutor had exercised his peremptory challenge for racial reasons (4g, because Bannon was a Native American). The prosecutor did not wait for the trial judge, pro tem Superior Court Judge Gregory J. Motyka, to decide whether the defense attorney had established a prima fucte case of racial motivation (normally, the first step in a Batson analysis). Instead, the prosecutor offered an explanation of the peremptory challenge. The prosecutor told Judge Moty-ka that he had decided to challenge Bannon because (1) he perceived Bannon as hostile and (2) he was worried about Bannon's views on Native sovereignty. Judge Motyka stated that he did not personally perceive hostility in Bannon's answers to the prosecutor's questions, but he also declared that her demeanor "[possibly] could have been interpreted as . hostile to the State." Moreover, Judge Motyka agreed that the prosecutor might legitimately be concerned about Bannon's responses on the Native sovereignty issue. The judge therefore overruled the defense attorney's Batson objection and allowed the peremptory challenge to stand. On appeal, Gottschalk renews his argument that the prosecutor violated Batson by exercising a peremptory challenge against Bannon purely because of Bannon's race. Gottschalk points out that Judge Motyka did not personally perceive Bannon to be hostile. For this reason, Gottschalk asserts that Judge Motyka engaged in "after-the-fact invention" when the judge declared that the prosecutor might possibly have viewed Ban-non as hostile. But there is no logical inconsistency in Judge Motyka's saying that he personally did not perceive Bannon as hostile, yet at the same time acknowledging that other reasonable people (in particular, the prosecutor) might have assessed Bannon's demeanor differently. With respect to the prosecutor's second explanation of the peremptory challenge-the prosecutor's concerns over Bannon's statements about Native sovereignty-Gott-schalk argues that the record does not support the prosecutor's offered explanation. That is, Gottschalk contends that Bannon's answers did not provide a reasonable basis for anyone to conclude that Bannon could not be a fair juror, even though the trial might raise issues of Native sovereignty. We agree with Gottschalk that Ban-non's answers would not lead a reasonable person to question her ability to be fair, or to question her willingness to follow the judge's instructions on Native sovereignty or related matters. But that is not the issue under Batson. An attorney's reason for exercising a peremptory challenge need not constitute a reason that would justify a challenge for cause. Indeed, requiring affirmative proof of the prospective juror's inability to be fair would defeat the whole concept of a peremptory challenge. Batson requires only that the attorney honéstly base their peremptory challenge on a race-neutral reason-"something other than the race of the juror". If the attorney offers a race-neutral explanation for the challenge, and if the attorney is acting in good faith-if the attorney's stated reason for exercising the challenge is not simply a subterfuge for racial discrimination-then the peremptory challenge will survive a Batson objection even if the attorney's reason for the challenge is "not . persuasive or even plausible". For example, in Purkett v. Elem , the defendant was tried for robbery in a Missouri court. During jury selection the prosecutor used peremptory challenges to strike two African-American potential jurors. When the defense attorney raised a Batson objection, the prosecutor explained the reasons for the strikes as follows: I struck [Juror] number twenty-two because of his long hair. He had long curly hair. He had the longest hair of anybody on the panel by far. He appeared to me to not be a good juror for that fact, the fact that he had long hair hanging down shoulder length, curly, unkempt hair. Also, he had a mustache and a goatee type beard. And juror number twenty-four also has a mustache and goatee type beard." Those are the only two people on the jury . with facial hair.... And I don't like the way they looked, with the way the hair is cut, both of them. And the mustaches and the beards look suspicious to me. Elem, 514 U.S. at 766, 115 S.Ct. at 1770. The trial judge overruled the Batson objection and, after the defendant was conviet-ed and appealed, that ruling was affirmed by the Missouri Court of Appeals. The defendant then filed a petition for federal habeas corpus. The federal district court concluded that the Missouri courts' determination that there had been no purposeful discrimination was a factual finding-t.e., a finding entitled to a presumption of correctness under 28 U.S.C. § 2254(d). Since there was support for that finding in the record, the district court denied the petition for writ of habeas corpus. However, the Eighth Circuit reversed the district court's decision and directed the district court to grant the writ of habeas corpus. The appeals court held that it was not sufficient for an attorney to articulate race-neutral factors behind a peremptory challenge; rather, "the [attorney] must [also] at least articulate some plausible race-neutral reason for believing those factors will somehow affect the person's ability to perform his or her duties as a juror." From its review of the transcript, the Eighth Circuit concluded that the "prosecution's explanation for striking juror 22 . was pretextual" and that the trial judge had erred in not finding intentional discrimination. The United States Supreme Court granted the State of Missouri's petition for writ of certiorari and reversed the Eighth Circuit. Here is how the Supreme Court described the Eighth Circuit's mistake: The Court of Appeals erred by combining Batson's second and third steps into one, requiring that the justification tendered at the second step be not just neutral but also at least minimally persuasive, ie., a "plausible" basis for believing that "the person's ability to perform his or her duties as a juror" will be affected. It is not until the third step that the persuasiveness of the justification becomes relevant-the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination. At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination. But to say that a trial judge may choose to disbelieve a silly or superstitious reason at step three is quite different from saying that a trial judge must terminate the inquiry at step two when the race-neutral reason is silly or superstitious. The latter violates the principle that the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. The Court of Appeals appears to have seized on our admonition in Batson that to rebut a prima facie case, the proponent of a strike "must give a 'clear and reasonably specific explanation of his 'legitimate rea sons' for exercising the challenges," and that the reason must be "related to the particular case to be tried." This warning was meant to refute the notion that a prosecutor could satisfy his burden of production by merely denying that he had a discriminatory motive or by merely affirming his good faith What it means by a "legitimate reason" is not a reason that makes sense, but a reason that does not deny equal protection. Elem, 514 U.S. at 768-69, 115 S.Ct. at 1771 (citations omitted) (emphasis in the original). In other words, after an attorney articulates a race-neutral reason for the peremptory challenge, the next-and ultimate-issue is the attorney's good faith. The trial judge must decide whether the articulated reason is the attorney's true reason for the peremptory challenge or whether it is a sham, an invention to mask the attorney's discriminatory intent. The party who raised the Batson objection bears the burden of persuasion on this issue. Moreover, in practically all cases, the trial judge has the ultimate word on the issue of the attorney's intent. As the United States Supreme Court explained in Hernandez v. New York, [Tlhe trial court's decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal[.] Deference to trial court findings on the issue of discriminatory intent makes particular sense in this context because, as we noted in Batson, the finding "largely will turn on evaluation of [the attorney's] ered-ibility." In the typical peremptory challenge inquiry, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence will often be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor's state of mind is based on demeanor and credibility "peculiarly within the trial judge's province." 500 U.S. at 364-65, 111 S.Ct. at 1868-69 (citations omitted). In Gottschalk's case, the prosecutor offered a race-neutral reason for challenging juror Bannon: her views on Native sovereignty. The fact that the prosecutor's rationale might have a disproportionate impact on the Native members of the jury pool does not mean that the explanation constitutes unlawful discrimination. As the Supreme Court stated in Hernandes, "Equal protection analysis turns on the intended consequences of government classifications. Unless the [prosecutor] adopted a criterion with the intent of causing the [disparate] impact ., that impact itself does not violate the principle of race neutrality." Because the prosecutor offered a race-neutral explanation for the peremptory challenge of juror Bannon, the remaining question is whether Gottschalk proved that the prosecutor's explanation was a subterfuge to mask a discriminatory intent. Judge Motyka found that Gottschalk had not met this burden; the judge concluded that the prosecutor had offered an honest explanation for the peremptory challenge. The transcript of juror Bannon's voir dire may not show that the prosecutor's apprehensions were well-founded-but, as explained above, that is not the issue. Judge Motyka found that the prosecutor honestly exercised the peremptory challenge for the reasons the prosecutor articulated: apprehension over Bannon's apparent hostility and apprehension over Bannon's statements concerning Native sovereignty. Judge Motyka's decision regarding the prosecutor's credibility and good faith necessarily rested, not only on the judge's assessment of the content of Bannon's answers, but also on the judge's assessment of such imponderable factors as the prosecutor's tone of voice and demeanor. Because of this, we can not say that Judge Motyka's conclusion is clearly erroneous. We therefore uphold Judge Motyka's denial of Gottschalk's Batson challenge. Conclusion The judgement of the superior court is AFFIRMED. . AS 28.35.030(n) (driving while intoxicated); AS 28.35.032(p) (breath test refusal); AS 28.15.291(a) (driving with a suspended license); AS 28.35.050(b) (leaving the scene of an accident). . 476 U.S. 79, 106 S.Ct. 1712, 90 LEd.2d 69 (1986). . See Criminal Rule 45(c)(1). . See id. at 587-88. . Id. . Id. . See Nickels v. State, 545 P.2d 163, 165 (Alaska 1976) (when an event triggers Rule 45, the following day is deemed Day 1). . 476 U.S. 79, 106 S.Ct. 1712, 90 LEd.2d 69 (1986). . See Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct 1859, 1866, 114 LEd.2d 395 (1991). . Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1856, 1866, 114 LEd.2d 395 (1991). . Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 LEd.2d 834 (1995) (per curiam ). . 514 U.S. 765, 115 S.Ct 1769, 131 LEd.2d 834 (1995) (per curiam ). . Elem v. Purkett, 25 F.3d 679, 683 (8th Cir.1994). . Id. at 684. . See Elem, 514 U.S. at 767, 115 S.Ct. at 1771. . Id., 500 U.S. at 362, 111 S.Ct. at 1867 (emphasis added).

10430941

Albert C. FREITAG, et al., Petitioners, v. Marie L. GOHR, et al., Respondents

Freitag v. Gohr

1982-09-29

No. 6009

356

358

651 P.2d 356

651

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:30:38.512786+00:00

CAP

Before BURKE, C. J., and RABINO-WITZ, CONNOR, MATTHEWS and COMPTON, JJ.

Albert C. FREITAG, et al., Petitioners, v. Marie L. GOHR, et al., Respondents.

Albert C. FREITAG, et al., Petitioners, v. Marie L. GOHR, et al., Respondents. No. 6009. Supreme Court of Alaska. Sept. 29, 1982. Dan K. Coffey, Anchorage, for petitioners. William F. Tull, Palmer, for respondents. Dana Fabe, Public Defender, Anchorage, for the Public Defender Agency. Robert C. Bundy, Asst. Atty. Gen., Wilson L. Condon, Atty. Gen., Anchorage, Robert K. Hickerson, Anchorage, for Alaska Legal Services Corp. Before BURKE, C. J., and RABINO-WITZ, CONNOR, MATTHEWS and COMPTON, JJ.

1874

11333

ORDER On consideration of the petition for hearing filed May 11, 1981, and the supplemental briefs requested by the court, IT IS ORDERED: The petition for hearing is denied. RABINO WITZ and MATTHEWS, JJ., dissent.

10557912

Gladys E. VANOVER, Appellant, v. Harold C. VANOVER, Appellee; Harold C. VANOVER, Cross-Appellant, v. Gladys E. VANOVER, Cross-Appellee

Vanover v. Vanover

1972-05-04

Nos. 1505, 1512

644

648

496 P.2d 644

496

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:31:12.080307+00:00

CAP

Before RABINOWITZ, CONNOR and ERWIN, JJ.

Gladys E. VANOVER, Appellant, v. Harold C. VANOVER, Appellee. Harold C. VANOVER, Cross-Appellant, v. Gladys E. VANOVER, Cross-Appellee.

Gladys E. VANOVER, Appellant, v. Harold C. VANOVER, Appellee. Harold C. VANOVER, Cross-Appellant, v. Gladys E. VANOVER, Cross-Appellee. Nos. 1505, 1512. Supreme Court of Alaska. May 4, 1972. James K. Tallman, Anchorage, for appellant and cross appellee. J. Randall Luffberry and Edward J. Reasor, Anchorage, for appellee and cross appellant. Before RABINOWITZ, CONNOR and ERWIN, JJ.

2365

14296

RABINOWITZ, Justice. The principal questions raised in these appeals concern the trial court's division or property in conjunction with a decree of divorce. Essentially, both parties contend that the trial court misinterpreted and misapplied AS 09.55.210(6). Prior to 1968, AS 09.55.210(6) provided that: In a judgment in an action for divorce or action declaring a marriage void or at any time after judgment, the court may provide (6) for the division between the parties of their joint property or the separate property of each, in the manner as may be just, and without regard as to which of the parties is the owner of the property . We have consistently held that this statute vested the trial court with broad discretion in the matter of division of the parties' properties and that on appeal we would not disturb the trial court's determination unless it is shown that the property division was clearly unjust. These standards were articulated in Crume v. Crume, 378 P.2d 183, 186 (Alaska 1963), where we said in part: [WJith respect to the judicial division of the property in this case, that is a matter left by statute to the broad discretion of the trial court and will not be disturbed on appeal unless an abuse of such discretion is shown. To establish an abuse of discretion the aggrieved party must show that the property division was clearly unjust. (Footnotes omitted.) In Merrill v. Merrill, 368 P.2d 546, 547-548 n. 4 (Alaska 1962), this court set forth the principal factors which the trial court should consider in resolving property division questions. In Merrill we said that the principal factors . . . are 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. In 1968 the Alaska Legislature amended AS 09.55.210(6), drawing a distinction between assets acquired prior to coverture and those acquired subsequently. AS 09.55.210(6) now provides: In a judgment in an action for divorce or action declaring a marriage void or at any time after judgment, the court may provide (6) for the division between the parties of their property, whether joint or separate, acquired only during coverture, in the manner as may be just, and without regard to which of the parties is in fault; however, the court, in making the division, may invade the property of either spouse acquired before marriage when the balancing of the equities between the parties requires it . These appeals present our first opportunity to address property division questions arising under AS 09.55.210(6) as amended in 1968. In his appeal Harold Vanover argues that the trial court misapplied AS 09.55.210(6) by invading property he acquired before marriage and awarding a portion of this property to his wife Gladys. In her appeal Gladys contends that the trial court abused its discretion in that it awarded her an inadequate share of Harold's property. The record, in its salient portions, shows that at the time the matter was tried to the superior court Gladys Vanover was 56 years old and Harold Vanover was 53 years of age. They had been married for 15 years and one son was born of their marriage. At the time of trial, Gladys was employed as a waitress earning a take home pay of approximately $400 per month. During the marriage Gladys worked a total of eight years, earning annually from $5,000 to $6,500. From these earnings Gladys contributed to the upkeep of the family, buying groceries, and paying utilities, taxes on her home and Harold's homestead lands, and other marital expenses. Prior to the marriage Gladys owned seven apartment rental units, which after her marriage to Harold, she sold for $14,000. Out of the proceeds of this sale she made available the sum of $6,000 to enable Harold to purchase a dump truck for his gravel hauling business. Harold additionally used $1,800 of the $14,000 to pay certain tax indebtednesses. Gladys also owned a home prior to the marriage which, by party stipulation, was valued at $16,000. Harold, Gladys, and their son lived in this house during the marriage of the parties. Although Harold lived in Gladys' house, he made extensive repairs and renovations to the house and grounds over the years they were married. Harold Vanover had come to Alaska in 1947 and homesteaded 160 acres in 1948. He received a patent for these lands in 1951. In 1953 he obtained a divorce from his first wife who was awarded a portion of these homestead lands! At the time he remarried, Harold had approximately 70 acres of the original homestead left. After marrying Gladys, Harold sold 20 acres of the remaining 70 for approximately $20,000. This money was used in payment of family expenses and equipment. Regarding the remainder of Harold's homestead lands, the parties stipulated to the following values of the remaining lots in Van's Subdivision and of Harold's interests in various executory contracts of sale pertaining to other portions of the subdivision : Lot 9, Block 2 $10,000 Lot 10, Block 2 10,000 Lot 3, Block 4 4,500 Lot 4, Block 4 4,500 Lot 5, Block 4 4.500 Lot 4, Block 5 7.500 Lot 5, Block 5 7,500 Interests in Executory Contracts of Sale Miller contract balance $ 619.81 Watts contract balance 26,488.95 Carr contract balance 22,668.55 Kocurek contract balance 110,000.00 At the conclusion of the trial, the superi- or court divided the property of the parties in the following manner: Gladys received the family home, furniture and fixtures; one-half of the proceeds from the sale of a Public Service Commission Permit which Harold used in connection with his gravel hauling business; $3,000 in cash from the Kocurek contract, plus $326 monthly for 15 years from the monthly installments payable under the Kocurek contract once the balance of this contract is reduced to $84,000; two fairly old vehicles; her personal effects; and certain cemetery lots. Harold was awarded the $17,500 down payment payable under the Kocurek contract, all payments made thereunder until the balance reached $84,000, and 60 percent of the payments thereafter; the entire balances of the Miller, Watts, and Carr exec-utory contracts of sale; sole title to the seven remaining lots in Van's Subdivision; one-half of the proceeds from the sale of a Public Service Commission Permit; and one 1968 Cadillac automobile. In arriving at this property division, the trial judge, in his oral opinion, advised counsel that he was fully aware of the provisions of AS 09.55.210(6), stating that he felt that because [Gladys'] efforts helped to save [Harold's homestead lands], because her efforts helped to support the family she must now therefore be allowed to share in the bounty resulting from the retention of the land until it did become so valuable. In his oral decision the trial judge further stated that he was going to make no effort to divide the property equally. I feel . . . [Harold] here should have the substantial portion. I'm looking rather at the needs of the parties, bearing in mind what I do know about their respective contributions both before and during the marriage The trial judge concluded his oral opinion with the statement that he felt the division he had decided upon would meet Gladys' needs "without unduly depriving [Harold] of any of the fruits of his . blood, sweat, and tears that went into his homesteading." Turning first to Harold's appeal, we are of the view that on this record the superior court did not misapply AS 09.55.-210(6) when it determined that Gladys was entitled to $3,000 in cash from the Kocurek contract, as well as a percentage of the monthly installment payments due under the Kocurek contract. We believe that a balancing of the equities required that the trial court invade the separate property of Harold which he had acquired prior to his marriage to Gladys. From the record it is apparent that the homestead lands to which Harold had managed to obtain a patent prior to his marriage had greatly appreciated in value during the 15 years that he was married to Gladys. In part through the efforts of Gladys, by virtue of her working for eight years during their 15-year marriage and her contributions toward payment of family expenses and taxes, Harold was able to retain most of the homestead lands he had brought into their marriage. Given the extent of Gladys' financial contributions, the fact that the parties lived in her house during the marriage, the fact that her house had not appreciated in value during this period, her somewhat advanced age and fairly limited earning capacity, we think the trial court made an appropriate decision when it determined that the equities of the situation required invasion of Harold's homestead lands in order to achieve a just property division. We therefore hold that the superior court did not err in awarding Gladys a portion of Harold's separate property acquired prior to marriage. On the other hand, we think that there is merit in Gladys' contention that the trial court abused its discretion in awarding her too little of Harold's property. In light of the factors we have previously alluded to, such as Gladys' age, her limited earning capacity, and the contributions she made towards the payment of family expenses and her husband's business ventures, we think that a just division of the property of the parties not only required the invasion of Harold's separate property acquired before he married Gladys but that the equities of the case required that Gladys be awarded a somewhat greater share than she received under the trial court's decree. Here Harold not only retained title to the seven remaining lots in Van's Subdivision, which were valued at $48,500, but additionally he was awarded the total unpaid balances of the executory contracts of sale pertaining to the Miller, Watts, and Carr transactions, which balances totalled approximately $50,000. Further, Harold received the $17,500 down payment on the $110,000 Kocurek contract, 60 percent of the monthly installments due under the contract once the balance reached $84,000, plus all of the payments under the contract until the $84,000 balance was reached. In light of these factors, we think that the matter should be remanded to the superior court for the purpose of making a more equitable property division. This is not to say that we think an equal division of Harold's property would be appropriate on this record. In reaching these conclusions, we have determined that AS 09.55.210(6), as amended in 1968, empowers the trial court to invade the property of a spouse acquired prior to the marriage where a division solely of property acquired during cover-ture would be unjust. We do not read AS 09.55.210(6) as circumscribing in any significant manner the broad discretion which we have heretofore found vested in the trial court in regard to property division matters. Where one spouse has made contributions to the marital community, whether of a pecuniary or of a more intangible nature, and where these contributions have benefited in any manner the separate property of the other spouse acquired before the marriage, we believe that the trial court may determine that all or a portion of that property should be included with the property acquired after marriage in effecting a just and equitable division of property. Thus, we find that the standards regarding the trial court's discretion articulated in Crume v. Crume, 378 P.2d 183, 186 (Alaska 1963), are applicable both to the trial court's exercise of its discretion in deciding whether or not the balancing of the equities between the parties requires invasion of the separate property of a spouse acquired prior to coverture and to the trial court's decision in making the actual property division. As to such matters, we will not disturb the trial court's exercise of its discretion unless we are convinced that the record discloses a clear abuse of discretion. We are of the further view that the factors we alluded to in Merrill v. Merrill, 368 P.2d 546, 547-548 n. 4 (Alaska 1962), have continued validity and should be applied by trial courts in making property division determinations of after-acquired property under AS 09.55.210(6). In determining whether separate property acquired before marriage should be invaded, the court should particularly consider factors such as the duration of the marriage, the conduct of the parties during the marriage, the manner of acquisition of the property, its value at the time of acquisition and at the time of the property division, and any other factors bearing on whether the equities dictate that the other spouse is entitled to share in that property. Since we have determined that the matter must be remanded, we also think it appropriate that on remand the trial court redetermine its award of attorney's fees to Gladys. Our study of the record has left us with the conclusion that the trial court's award to Gladys of $200 in attorney's fees is clearly inadequate. Affirmed in part, reversed in part, and remanded for further proceedings in conformity with the foregoing. BONEY, C. J., and BOOCHEVER, J., not participating. . We have employed the clearly unjust standard in Sheridan v. Sheridan, 466 P.2d 821, 822 (Alaska 1970); Houger v. Houger, 449 P.2d 766, 771 (Alaska 1969); Groff v. Groff, 408 P.2d 998, 1000 (Alaska 1965); McSmith v. McSmith, 387 P.2d 454, 455 (Alaska 1963); Rhodes v. Rhodes, 370 P.2d 902, 905 (Alaska 1962); Merrill v. Merrill, 368 P.2d 546, 547 (Alaska 1962). . These lands had by this time been subdivided and were known as Van's Subdivision. . AS 09.55.200(a) (1). Houger v. Houger, 449 P.2d 766, 772 (Alaska 1969).

10433782

James KARKANEN, Appellant, v. PERINI ARCTIC ASSOCIATES, Appellee

Karkanen v. Perini Arctic Associates

1982-09-24

No. 6331

845

846

651 P.2d 845

651

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:30:38.512786+00:00

CAP

Before RABINOWITZ, CONNOR, MATTHEWS and COMPTON, JJ.

James KARKANEN, Appellant, v. PERINI ARCTIC ASSOCIATES, Appellee.

James KARKANEN, Appellant, v. PERINI ARCTIC ASSOCIATES, Appellee. No. 6331. Supreme Court of Alaska. Sept. 24, 1982. Millard F. Ingraham, Fairbanks, for appellant. Richard L. Wagg, Faulkner, Banfield, Doogan & Holmes, Anchorage, for appellee.

654

4054

OPINION Before RABINOWITZ, CONNOR, MATTHEWS and COMPTON, JJ. PER CURIAM. James Karkanen incurred an on-the-job back injury while employed as a heavy equipment operator by Perini Arctic Associates [Perini] in 1976. He sought worker's compensation benefits, alleging he was permanently partially disabled. Following a hearing, the Workers' Compensation Board [Board] rejected his application. The Board's written decision indicates that it did not believe Karkanen's testimony concerning the extent of his injury, nor did it accept the opinion testimony of a doctor offered by Karkanen to support his claim. Citing to another doctor's report and to the report of the camp medics, the Board concluded that Karkanen on October 13, 1976, had "recovered from the June 25, 1976, injury, experienced no permanent partial impairment and was able to return to regular employment without loss in earning capacity." On appeal, the superior court ruled that there was no substantial evidence in the record negating an existing physical impairment or a causal connection between the impairment and the on-the-job injury. However, the court also ruled that there was "substantial evidence in the record to support the Board's conclusion that Karka-nen suffered no loss in wage earning capacity." Hence, the Board's decision was affirmed. In this appeal, Karkanen contends that the superior court erred by failing to remand the case to the Board for findings on the existence or extent of the reduction in his wage earning capacity. Perini does not contest the superior court's cpnelusion that there is no substantial evidence to negate the existence of a physical impairment and its causal connection with the 1976 job injury. Thus the sole issue before us concerns the propriety of the superior court's ruling regarding wage earning capacity. It is apparent from reading the opinion of the Board that it did not inquire into whether Karkanen has suffered a loss in wage earning capacity because it did not believe that there was a causal connection between an on-the-job injury and any existing physical impairment: We believe the condition for which Dr. Meier treated the applicant arose out of some activity during the six months since leaving Alaska or from the natural progression of degenerative disc disease. Dr. Meier relates the applicant's condition to the incident in Alaska on June 25, 1976, however, Dr. Meier formed his opinion as to the causal relationship of applicant's symptoms from statements made by the applicant. We do not believe the applicant and disregard the opinion given by Dr. Meier. The question as to the extent of Karka-nen's compensable disability, if any, must be remanded to the Board, for it is the Board which has the duty to make findings of fact, not the superior court. REVERSED and REMANDED. BURKE, C. J., not participating. . The decision states in part: We find that applicant's description of the injury was greatly exaggerated when he described it to Dr. Meier some ten months afterward and in his deposition and at hearing, some three years later. We find that the applicant experienced a strain of the back from a jarring incident on June 25, 1976, but that injury was nothing like the severity described by applicant several years later . We do not believe the applicant when he states some three years afterwards that he terminated his employment for the defendant on October 12, 1976, because he could no longer work with the back pain, shocks in the back of the neck and temporary loss of vision several times a day, resulting from the June 25, 1976, injury . We believe the applicant was lying when he stated in his deposition that as a result of the June 25, 1976, injury and while still in Alaska, he experienced knee pain, numbness in his right thumb and headaches.

10435976

Larry F. SMITH, Appellant, v. STATE of Alaska, Appellee

Smith v. State

1982-10-01

No. 6069

1191

1195

651 P.2d 1191

651

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T19:30:38.512786+00:00

CAP

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

Larry F. SMITH, Appellant, v. STATE of Alaska, Appellee.

Larry F. SMITH, Appellant, v. STATE of Alaska, Appellee. No. 6069. Court of Appeals of Alaska. Oct. 1, 1982. Edward J. Reasor, P. C., for appellant. James P. Doogan, Jr., Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Wilson L. Condon, Atty. Gen., Juneau, for appellee.

2292

13728

OPINION Before BRYNER, C. J., and COATS and SINGLETON, JJ. BRYNER, Chief Judge. Larry Smith appeals from a sentence of six years with three years suspended, which he received for the offense of lewd and lascivious acts toward a child in violation of former AS 11.15.134. On appeal, Smith contends that this sentence is excessive; he argues alternatively that, in denying a request for continuance of his sentencing hearing, the superior court deprived him of his right to be represented by an attorney of his own choice and of his right to present favorable evidence for the purpose of sentencing. We find it unnecessary to reach the issue of excessiveness, because we conclude that Smith was improperly deprived of his right to representation by counsel. On February 11, 1981, Smith entered a plea of guilty to one count of lewd and lascivious acts toward a child. Sentencing was scheduled for March 27, 1981. However, a series of events resulted in the original sentencing date being changed on four occasions. Proceedings were first rescheduled from March 27 to April 17 at the request of the defense, apparently because Smith was unable to arrange an appointment for a psychiatric evaluation in time to allow preparation of a presentence report. Another date, April 10, was later substituí ed, based on the motion of Smith's former attorney, Irwin Ravin, who indicated that he was scheduled to be out of town on April 17. Because Smith's psychiatric counselor, Dr. Gilbert, could not be present to testify as a witness for Smith on April 10, Smith's attorney again moved for a new sentencing date, this time requesting that sentencing be continued to April 16, a date when Dr. Gilbert apparently would have been available. The court, however, rescheduled sentencing for April 17 instead of April 16, apparently overlooking the fact that Ravin had earlier indicated he would be out of town on that date. Upon receiving notice that sentencing had been reset to April 17, Ravin obtained a stipulation from the prosecution to postpone sentencing until May 8, 1981. Smith appeared on May 8,1981, as scheduled. He was accompanied by Ravin. At the outset, however, Smith indicated that he was not ready to proceed. He told the court that he had discharged Ravin and hired another attorney, Mr. Edward Reasor. Smith explained that Reasor knew at the time that he was hired that he would be unable to appear to represent Smith on May 8. According to Smith, Reasor wrote to Ravin requesting him to move for an additional continuance to enable Reasor to appear. It was Smith's assertion, however, that Ravin failed to take any action on Reasor's request. Smith also informed the court that Dr. Gilbert was unable to appear as a witness on that date; Smith told the. court that Ravin had been apprised of this fact well in advance of sentencing but had failed to make any effort to obtain an alternative date to allow for Dr. Gilbert's presence. Smith generally expressed dissatisfaction with Ravin's handling of the case, stating that Ravin had twice changed the date of sentencing without Smith's prior knowledge or consent in order to suit his own (Ravin's) convenience. Superior Court Judge James Blair indicated early on in the hearing of May 8 that, because of the number of prior continuances, Smith would under no circumstances be permitted an additional extension to enable his new attorney to appear. Judge Blair told Smith that he could have Mr. Ravin act as his attorney or that he could represent himself. Then, without asking Smith if he wanted to relinquish his right to counsel, Judge Blair began the sentencing hearing. The state called one witness, who testified without cross-examination by Smith. Ra-vin did not examine the state's witness, nor did he attempt to call any defense witnesses. He explained that Smith had instructed him not to speak. Thereafter, the prosecutor presented his sentencing argument and recommendation to the court. At the conclusion of this presentation, Smith's wife interceded, indicating that she had questions about the propriety of a number of matters argued by the prosecution. Mrs. Smith further stated her view that Dr. Gilbert's testimony, which could not be obtained because of the court's reluctance to grant a continuance, would have been essential in assisting her husband to present his side of the sentencing issue. Mrs'. Smith reiterated her husband's prior claims that it was Mr. Ravin's handling of the case that precluded sentencing from being held at a time when Dr. Gilbert was available. At approximately this juncture in the proceedings, after the prosecution had presented its sentencing argument but before Smith had an opportunity to argue, Judge Blair, for the first time, personally asked Smith if he wanted Ravin to argue in his behalf; Smith declined. Judge Blair told Smith that he thought Smith was making a mistake, but he concluded that, "it's up to you." Both Smith and his wife then made brief statements to the court with respect to sentencing. Thereupon, Judge Blair imposed the six-year sentence, with three years suspended, from which Smith now appeals. Several additional observations must be made concerning Smith's sentencing hearing. At no time during the sentencing did the prosecution object to a continuance or set forth any reason why the state would be prejudiced by a postponement. The only reason stated by the court in denying a continuance was the fact that prior continuances had been granted. Though present throughout the proceedings, Ravin, Smith's discharged counsel, never denied Smith's assertions that the prior delays in sentencing were caused by him and that he had failed to attempt to obtain a different date for sentencing even though he was aware that Dr. Gilbert could not be present on May 8. Despite the obvious animosity on Smith's part toward Ravin, the court never questioned Smith or Ravin to determine whether there was a reasonable basis for Smith's dismissal of Ravin; nor did the court in quire as to whether Ravin thought that there was a sufficiently serious breakdown in his attorney-client relationship with Smith to preclude him from continuing to act effectively as Smith's legal counsel. Having reviewed the totality of the sentencing record, we do not think that it can support a conclusion that Smith acted unreasonably or in bad faith in attempting to discharge Ravin as his attorney. Indeed, the superior court made no such finding. Nor does the record lead us to conclude that Smith himself could properly be characterized as having been dilatory with respect to his sentencing date. Smith and his wife both made statements on the record placing the blame for much of the delay in scheduling, as well as for Dr. Gilbert's unavailability to testify, on their former attorney, Ra-vin. Neither Ravin nor the prosecutor disputed these statements, and they went unquestioned by the court, as well. In Ledbetter v. State, 581 P.2d 1129 (Alaska 1978), the supreme court considered a case substantially similar to this case. There, the defendant had appeared before the district court for trial approximately seven weeks after his arraignment by a magistrate. He requested a continuance, stating that he had not yet had the chance to retain an attorney. The district court denied this motion, finding that the defendant had had sufficient time to retain counsel. Trial was held, and Ledbetter appealed after being convicted. The supreme court, noting that remarks made by the magistrate at Ledbetter's arraignment might have led him to believe that he would be able to obtain a delay if he did not obtain an attorney by the date of trial, concluded: Ledbetter's request for a continuance on July 28, the date of the trial, in order to give him further time to get an attorney, did not demonstrate such a complete lack of diligence . as to merit a denial of his request for a continuance. Ledbetter v. State, 581 P.2d at 1131 (footnote omitted). We believe that a similar conclusion must be drawn from the record in this case. After concluding that the defendant's conduct could not be characterized as an abandonment of counsel, the court in Led-better proceeded to hold that the defendant had been denied his constitutionally guaranteed right to counsel. The court stated: It must be remembered that Ledbet-ter's right to be represented by counsel in this criminal prosecution was of constitutional dimension. A waiver of such a right is not to be lightly inferred. As we stated recently in O'Dell v. Municipality of Anchorage, [576 P.2d 104, 108 (Alaska 1978)], in order to find a waiver the record must clearly disclose that the accused 'intelligently, competently, understandingly, and freely waived' the benefits of legal representation. Such a showing was not made here. The record of proceedings . . 'fails to reflect a clear waiver . of the right to legal representation.' O'Dell v. Municipality of Anchorage, supra at 108. Ledbetter v. State, 581 P.2d at 1131 (footnotes omitted). We think that the supreme court's holding in Ledbetter with respect to deprivation of the right to counsel is squarely applicable to this case. Here, Smith never indicated a willingness to waive representation by Edward Reasor, whom he had retained to replace Irwin Ravin. Instead, the court forced Smith to elect between representing himself and having Ravin speak for him. Even assuming that Smith's conduct with respect to the prior continuances of his sentencing could have justified the court in forcing such an election — and we do not think that it could — the record before us still fails to reflect an express, informed waiver by Smith of his right to counsel. Smith was not advised of the benefits of legal representation or of the dangers of self-representation before he proceeded with the sentencing unrepresented by counsel. O'Dell v. Municipality of Anchorage, 576 P.2d at 108; Gregory v. State, 550 P.2d 374, 379 (Alaska 1976). Nor does the record disclose any effort by the court to inquire personally of Smith to assure that he understood precisely what rights he was giving up by declining legal representation. O'Dell, 576 P.2d at 107; McCracken v. State, 518 P.2d 85, 91 (Alaska 1974). See also Rule 39(b)(3), Alaska R.Crim.P. Additionally, the court failed to determine on the record whether Smith was even minimally qualified to proceed on his own, without the assistance of an attorney. McCracken v. State, 518 P.2d at 91. See also Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562, 582 (1975). We find the language of the Alaska Supreme Court in O'Dell v. Municipality of Anchorage, 576 P.2d at 108, to be appropriate to these circumstances: What the record totally fails to demonstrate is that [Smith] appreciated what he was giving up by declining the assistance of counsel. In short, the record fails to demonstrate a knowing and intelligent waiver by [Smith] of the right to the assistance of counsel. In the absence of a clear indication that Smith had been intentionally dilatory or that he had acted in bad faith with respect to his sentencing date, and lacking any claim of prejudice by the state, we find that Judge Blair's denial of a continuance and his decision to permit Smith to proceed unrepresented must be deemed clearly erroneous. Ledbetter v. State, 581 P.2d at 1131. The sentence imposed by the superior court is VACATED, and this case is REMANDED for resentencing. . In this regard, the court stated: Well, Mr. Ravin is still on the case as far as the file reflects. If you wish to have him speak on your behalf, he is here and able to do so. If you do not wish to have him speak on your behalf, then . you'll face it on your own. But that's a decision that you make willingly and voluntarily at this stage, 'cause we're not going to continue the sentencing. . At one point, after the state had presented its witness and made its sentencing argument, Judge Blair did ask Smith if he would permit Ravin to speak in his behalf; when Smith re plied that he would not, the judge told Smith that he considered this decision unwise: THE COURT: I'm telling you you're making a mistake by not allowing it, because this is the time and you have an attorney who can speak on your behalf. And whether you ever get another opportunity is something that is far off in the future, so it's up to you. Aside from the fact that the court's comment was made toward the end of the sentencing proceedings, we note that it was conclusory in nature and did not seek to actually inform Smith of the ways in which he might benefit from'being represented by counsel. It is not insignificant, in this regard, that, at an earlier stage in the proceedings, Mrs. Smith, after having intervened to voice complaints about Ra-vin's failure to handle Smith's case in an adequate manner, stated: MRS. SMITH: What does a person have an attorney for if they do not do — do these things for you? To this, the court responded: THE COURT: Well, I don't know. . In fact, at the beginning of the sentencing hearing, the court did not, even address Smith personally to inquire whether he wanted to waive representation; instead, Judge Blair simply told Smith that he could choose between having Ravin represent him and representing himself. Sentencing proceedings then went forward, without any express indication by Smith as to whether he intended to relinquish his right to representation.

10435917

Scott Ross NEWCOMB, Appellant, v. STATE of Alaska, Appellee

Newcomb v. State

1982-10-01

No. 5132

1176

1184

651 P.2d 1176

651

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T19:30:38.512786+00:00

CAP

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

Scott Ross NEWCOMB, Appellant, v. STATE of Alaska, Appellee.

Scott Ross NEWCOMB, Appellant, v. STATE of Alaska, Appellee. No. 5132. Court of Appeals of Alaska. Oct. 1, 1982. Peter F. Mysing, Asst. Public Defender, Kenai, and with Drathman & Weidner, Anchorage, and Brian Shortell, Public Defender, Anchorage, for appellant. W. H. Hawley and David Mannheimer, Asst. Attys. Gen., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for appellee.

5950

35623

OPINION Before BRYNER, C. J., and COATS and SINGLETON, JJ. COATS, Judge. Scott Ross Newcomb was convicted by a jury of grand larceny, in violation of former AS 11.20.140, for stealing building materials from United Building Supply in Kenai. Imposition of sentence was deferred for three years on the condition that Newcomb serve thirty days in jail. Newcomb appeals and argues that the trial court abused its discretion by denying (1) Newcomb's counsel's motion to withdraw and (2) a corollary motion for a continuance so that Newcomb could obtain new counsel. We have concluded that the trial court should have granted the continuance so that Newcomb could obtain different counsel. We therefore reverse his conviction and remand for a new trial. In order to understand the context in which New-comb's motions were made and our reasons for reversing, a brief review of the facts is necessary. Newcomb retained Paul Davis as counsel on July 25, 1979, shortly after being charged with the crime in question. On August 8, 1979, the grand jury indicted Newcomb. Trial was ultimately set for Monday, October 15, 1979. Newcomb met with his attorney, Paul Davis, on the Thursday preceding trial. He imparted information to Davis which caused Davis concern over whether he could ethically represent Newcomb if Newcomb decided to testify in his own behalf. Davis considered the ethical problem and did legal research for a day in order to determine what he should do. He also consulted with his partner, Edgar Paul Boyko, an experienced trial lawyer specializing inter alia in criminal defense. At 4:30 p. m. on Friday afternoon, Davis called Judge Hanson, the presiding judge, to inform him that Davis would seek to withdraw as Newcomb's attorney because of ethical problems. Davis formally moved to withdraw from the case at 9:00 a. m. Monday morning, just before trial. The time of the trial had been moved from 10:00 a. m. to 9:00 a. m. by the court, but Davis stated that he only got word of this late Friday afternoon and had not been able to contact his client, who had no phone. Therefore Newcomb was not present at the hearing on Davis' motion to withdraw. The court and Davis went on record anyway and discussed the reasons for Davis' motion to withdraw. Davis did not directly inform the court what the problem was with his representation of New-comb, but he did tell the court that for him to proceed would be a violation of disciplinary rule 7-102. Davis indicated that he could not proceed because he had received a confidential communication from his client which he believed made it impossible for him to proceed. Judge Hansen "assumed for purposes of the discussion" a hypothetical situation where an attorney had a client who wished to put on witnesses who wished to commit perjury. Judge Hansen said that he felt if he were the attorney his responsibility would be to avoid putting on perjured testimony but to give the client the best defense possible by trying to show that the state had not met its burden of proving the charges. Davis agreed with the court's hypothetical but stated that his "problem could be exacerbated by the fact that the client would refuse to not take the stand." When Newcomb arrived for his trial a short while later, the court replayed the tape of the discussion between the court and Davis. The court and Davis then considered the standards proposed by the ABA for dealing with the problem and several appropriate cases. In order to understand the discussion that then took place between the court, counsel, and defendant, it is necessary to note that the case against Newcomb consisted of two witnesses: the police officer who discovered Newcomb parked behind United Building Supply and in the act of loading building supplies into Newcomb's truck at 2:30 a. m., and the manager of United Building Supply who ultimately testified that the materials in question belonged to his company. Defense counsel had previously received copies of the police officer's reports and had moved to suppress on constitutional grounds certain statements Newcomb allegedly made to the police officer. These motions were denied. Newcomb does not challenge those rulings in his appeal. The police report stated in relevant part: This officer was on routine patrol and in prowl checking United Building Supply, I drove to the rear of the building, at that point I observed a 51 Chev. pickup, License No. 8805 AR, sitting directly behind the building. I also observed the above listed Mr. Newcomb loading some metal roofing into the back of the pickup. At this point I advised radio of a possible larceny in progress and exited the vehicle. As I was exiting the vehicle, Mr. Newcomb ran around to the front of his vehicle out of sight of the officer and crouched down. I walked around Mr. Newcomb's vehicle and observed him crouched down, when he saw me he stood up and I ask [sic] Mr. Newcomb what he was doing. Mr. Newcomb replied, "just loading some roofing — some roofing material." I asked Mr. Newcomb if he had paid for or had a receipt to show he had paid for the materials and Mr. Newcomb stated that he had not paid for the materials. At this point I took Mr. Newcomb back to my patrol vehicle and after a pat search, placed him in the back seat. Mr. Newcomb several times requested [me] to let him go and just help him unload the materials and forget the whole thing. Mr. Newcomb was advised of his constitutional rights and . asked to sign the rights card acknowledging the advisement of his rights. He refused to sign it. I asked Mr. Newcomb what he was going to do with the building supplies and he said he was building a garage. At this point Mr. Newcomb stated he would not answer any more questions. The police report continues, When Mr. Newcomb was contacted by this officer he did have a cut on his right hand, below the thumb, in the area of the palm, apparently as a result of his loading the metal roofing into his pickup. There was some blood on several of the sheets of the roofing. Davis stated that because of information which he received from Newcomb, he felt he was unable to question the truth of the testimony which he anticipated the officer would give. Specifically, Davis told the court that during the trial of the case there would be four problem areas in which he could not fully participate, due to ethical considerations and his own feelings. First of all, I do not believe I could voir dire the jury as to one important issue. The second is that I do not believe I can cross-examine a key prosecution issue [sic] with some aim to testing his credibility. Third, I cannot conduct examination of my client in either direct or redirect. Fourth, I cannot argue either my client's testimony or against the credibility of the key prosecution witness. Davis felt that he would not even be able to ask routine questions on voir dire as to whether a prospective jury would give more credence to a police officer than to the ordinary witness. Davis acknowledged that this was more of a subjective feeling on his part than reliance on an express ethical requirement. The state supported Davis' motion to withdraw. The prosecuting attorney was reluctant to proceed in the face of a strong possibility of reversible error, feeling the jury might make adverse inferences from Davis' less than vigorous performance as Newcomb's lawyer. She agreed with Davis that the same problem might not arise if Newcomb secured another lawyer and noted that the problem between Davis and Newcomb appeared to be more than a problem which was caused by the ethical considerations previously discussed. Newcomb himself requested a new lawyer. Davis and Newcomb agreed that the attorney-client relationship had deteriorated to the point that Davis could no longer adequately represent Newcomb. Newcomb preferred that Davis not examine anyone about anything at all. Newcomb, counsel and the court subsequently met in chambers at which time Newcomb, having considered the morning's discussion, personally moved to discharge Davis and asked the trial judge to recuse himself on the ground that the discussion had necessarily prejudiced the judge against Newcomb's defense. When this motion was denied, Davis asked for a stay in order to petition for supreme court review of the issue; the prosecutor joined in the motion but it was also denied. New-comb reiterated his wish that the trial judge disqualify himself, due to all he had heard regarding Davis' beliefs that New-comb contemplated committing perjury. The judge refused to do so, stating that if Newcomb testified and the state felt that he perjured himself, it should separately prosecute him for perjury, but that any such perjury would not be a major factor in sentencing in the case. The trial then proceeded with jury voir dire. The prosecutor asked a number of questions and inquired of each juror whether he or she would give the same weight to the testimony of a police officer as to other testimony. The court, in some cases at Davis' prompting, also asked a few questions. However, Newcomb specifically instructed Davis not to ask any questions on voir dire, and Davis remained silent, after requesting the court to ask any questions necessary to protect Newcomb. Among the prospective jurors were: (1) a former manager of Newcomb's apartment building;. (2) a friend of Newcomb's who was familiar with the case and was uncomfortable judging Newcomb (excused for cause; Davis presented no argument against the excuse for cause); (3) a bank loan officer who had made loans to both the police officer and United Building Supply (eliminated by peremptory challenge); (4) a person who implied that she would give more weight to the testimony of a police officer, although it would depend on who the other person was (neither Davis nor the court explored the issue). Davis, in consultation with New-comb, exercised two peremptory challenges and, after consultation with Newcomb, waived the rest. The prosecutor then presented the police officer. Newcomb directed Davis not to cross-examine the officer and chose to do it himself. Davis asked the court for a recess, which was granted, and outside the presence of the jury the following exchange took place: THE COURT: . Mr. Newcomb now has indicated that he wishes to cross-examine the state's witness. He does not wish you to do so, is that correct? MR. DAVIS: That's my understanding, Your Honor. THE COURT: Is that correct, Mr. New-comb? MR. NEWCOMB: I have no choice, Your Honor. THE COURT: You have no choice? MR. NEWCOMB: No lawyer. THE COURT: Mr. Davis still represents you so far as I am concerned. If you do conduct cross-examination, Mr. New-comb, you'll be bound by all the rules of procedure and evidence that Mr. Davis or any lawyer would be bound by, do you understand that? MR. NEWCOMB: Ido. THE COURT: And . MR. NEWCOMB: As I said before, I have no choice. He is not representing me. He is giving me advice but he is not representing me. I'm put in a situation where I have no choice.... THE COURT: All right. I think that you're ill-advised to do that, I think you should let Mr. Davis conduct the case for you. I know him to be competent counsel. MR. NEWCOMB: He doesn't want to represent me. I'm not going to hold him to do something he doesn't want to do. Davis reiterated his willingness to proceed within ethical confines but stated that there would be some further difficulty with cross-examination of the officer: [L]et me see how would I put this — that if I ignore the situation and cross examine this witness as I would in the absence of presenting any defense at all, that it may have a negative effect later on on his defense, and they may be inconsistent. Therefore, I feel that I have a double-edged problem. Therefore, the court allowed Newcomb to "proceed at his peril," and Newcomb conducted an unremarkable cross-examination. There were several instances of "whispered conversation" in the record, and it is clear that Davis was consulting with Newcomb during Newcomb's examination of the officer. The prosecution next presented the lumber yard manager for United Building Supply, who identified the items taken and testified as to their value. Then Newcomb cross-examined the manager, although no additional reasons had been given by Davis why he could not do so. During cross-examination Newcomb established that the manager had no way of specifically identifying the materials found in Newcomb's truck as belonging to United Building Supply other than that they looked similar to materials delivered to United Building Supply shortly before, that the manager's testimony as to the cost and value of the materials was different from the testimony he gave at the preliminary hearing, and that the materials had not been counted or otherwise identified before the end of the previous workday. At this point, out of the presence of the jury, Newcomb again personally moved to discharge Davis and for a continuance to get another lawyer before presentation of his defense. He stated that things were happening too fast in the court room, and he was having trouble understanding them. Newcomb conceded that Davis was giving him advice, but he contended that he and Davis were having trouble communicating all along. Davis added: Mr. Newcomb informed me that he does not want to take the stand in the absence of having an attorney, someone who can explain to him what the ramifications are and someone he trusts and believes in. We don't have that kind of relationship anymore. I believe that what he is trying to do is — and please correct me if I'm wrong, I don't want to be putting words in his mouth in this thing at all — but my understanding is, based upon our conversations just now is that he does not want to take the stand unless he has an attorney to help him and direct him. I have told him that I will not help him and I will not direct him in this — in his case as it currently stands. And I think, unless I'm incorrect, and I think Mr. Newcomb should be asked about it directly, this is the situation that he is facing, this is his problem. Newcomb acknowledged that Davis had accurately stated his position. The court denied the motion for a continuance. It did allow Newcomb an additional five minutes to determine whether or not he would take the witness stand. Newcomb decided not to take the stand. At Newcomb's request, Davis presented final argument. He emphasized that the burden of proof was on the state, that the manager had been confused as to the identification of the value of the materials, and basically argued that the evidence presented was insufficient. The jury returned a verdict of guilty. Immediately after the trial, the judge on his own initiative asked Newcomb if he would prefer to have Davis withdraw as his attorney. Newcomb responded affirmatively, and the judge allowed the withdrawal. The public defender was appointed and represented Newcomb at sentencing and in this appeal. Newcomb contends that the failure of the trial court to allow Davis to withdraw and to continue the trial so that Newcomb could secure new counsel was an abuse of discretion which prejudiced his right to the effective assistance of counsel. He argues that the ethical conflict experienced by Davis made it impossible for Davis to provide Newcomb with effective representation, and that the court should have allowed Davis to withdraw. Newcomb contends that this should be so even if he were fully intending to commit perjury. The state responds that Newcomb received the assistance to which he was entitled, since his right to counsel is necessarily circumscribed by ethical considerations which would have affected any attorney he hired. The state also argues that any prejudice which occurred to Newcomb resulted from his own limitation of his lawyer's function beyond that which Davis imposed on himself. In Neilson v. State, 623 P.2d 304, 307 (Alaska 1981), the supreme court reviewed the law on granting or denying continuances: The decision whether to grant or deny a motion for continuance is committed to the sound discretion of the trial court; reversal is appropriate only upon the showing of an abuse of that discretion. Wright v. State, 501 P.2d 1360, 1366 (Alaska 1972); Klockenbrink v. State, 472 P.2d 958, 964 (Alaska 1970). See Salazar v. State, 559 P.2d 66, 71 (Alaska 1976); Doe v. State, 487 P.2d 47, 57 (Alaska 1971). But, error alone is not enough to require reversal. Wright v. State, 501 P.2d at 1366 (Alaska 1972). It must appear that the refusal of additional time in some manner embarrassed the accused in preparing his defense and prejudiced his rights. Klockenbrink v. State, 472 P.2d 958, 964 (Alaska 1970), quoting People v. Solomon, 24 Ill.2d 586, 182 N.E.2d 736, 738 (1962). We believe that under the circumstances of this case the trial judge abused his discretion in not allowing Newcomb a continuance to obtain different counsel. First we note that it appears clear from the record that it would not have been difficult to continue this trial. The case was simple and involved two local witnesses and an estimated three hours of testimony. The case shows no history of delays, and there are no findings which indicate that it would have been difficult to reschedule this case. We note that the prosecutor did not argue that there would be any difficulty in continuing the ease; in fact she joined the defense in asking for a continuance. We also believe that there was sufficient evidence to suggest that the attorney-client relationship between Newcomb and Davis had broken down, and we believe that the record reflects that this breakdown might not have occurred with another attorney. Davis, Newcomb and the prosecuting attorney all seemed to agree on this point. Furthermore, Davis' method of attempting to withdraw from the case tended to undermine the attorney-client relationship. In trying to extricate himself from his ethical dilemma, Davis essentially told the trial judge that his client was going to perjure himself. To make matters worse, this revelation was made to the trial judge in New-comb's absence. Although this court appreciates the ethical dilemma in which Davis found himself, from Newcomb's point of view Davis' statements in Newcomb's ab sence would be perceived as revealing to the court confidential statements which Newcomb had made to Davis and also as taking actions which might prejudice the trial judge against Newcomb's case. This is why one well reasoned opinion in this difficult area, as well as the ABA Standards Relating to the Prosecution and Defense Functions, states that an attorney faced with a client who wishes to testify falsely should move to withdraw from the case but should not reveal to the court that his client wishes to commit perjury. Given the fact that Davis, Newcomb and the prosecutor all indicated that they believed that the problem between Newcomb and Davis was more than just an ethical problem, and given the fact that the record indicates that the method which Davis used to withdraw from the case was bound to have had a detrimental effect on the attorney-client relationship, we conclude that the record reflects a greatly deteriorated attorney-client relationship between Newcomb and Davis. The circumstances of this case distinguish it from Coleman v. State, 621 P.2d 869 (Alaska 1980), cert, denied, 454 U.S. 1090, 102 S.Ct. 653, 70 L.Ed.2d 628 (1981). In Coleman the court held that the trial court did not abuse its discretion in failing to appoint another attorney for Coleman because the record supported the conclusion that Coleman's problem with his attorney resulted from his distrust of the Public Defender Agency and the judicial system in general. 621 P.2d at 881. Here, however, Davis and Newcomb claimed an individual conflict. There is no reason to believe that the same ethical conflict would necessarily arise with another attorney who might be better able to communicate with Newcomb. Even in the event a similar ethical problem arose with another attorney, there is probably a substantial chance that, given his experience with Davis, Newcomb would be less likely to interpret his new attorney's actions in discouraging him from testifying as a lack of zeal. We recognize that the trial court needs broad discretion to deal with the problem of a defendant who, on the day of trial, wishes to have a continuance and a new attorney because of a similar ethical problem. However, in this ease the record indicates that there was no reason why the case could not be continued or why the continuance of the case would hinder the administration of justice. The record also supports the fact that the attorney-client relationship had broken down and does not support the inference that another attorney-client relationship would similarly break down. These are the factors which lead us to the conclusion that the trial court abused its discretion in not allowing Newcomb a continuance so that he could later proceed to trial with another attorney. Although the state's case was very strong, we cannot conclude that the failure to grant a continuance so that Newcomb could go to trial with an attorney with whom he did not have a conflict can be deemed harmless error under these circumstances. The trial record reflects that the conflict continued between Newcomb and his attorney during the trial and that New-comb in many respects ended up representing himself during the trial. The record also reflects that Newcomb may have given up his right to testify because he had no faith in his attorney. We conclude that this record indicates that the conflict with counsel had an effect on Newcomb's representation. We cannot conclude beyond a reasonable doubt that this conflict did not affect the result of the trial. Risher v. State, 523 P.2d 421 (Alaska 1974). The conviction is therefore REVERSED. . The trial court found that Davis acted with reasonable dispatch in informing the court of the problem. Although "it would have been nicer" to have learned of the problem on Thursday, the court recognized Davis' need to do some research. The court acknowledged that it had the option on Friday afternoon to call the jury and witnesses and postpone the trial, but it elected not to do so. . Alaska Code of Professional Responsibility, Disciplinary Rule 7-102 reads as follows: Representing a client within the bounds of law. (A) In his representation of a client, a lawyer shall not: (1) File a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client, when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another. (2) Knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law. (3) Conceal or knowingly fail to disclose that which he is required by law to reveal. (4) Knowingly use perjured testimony or false evidence. (5) Knowingly make a false statement of law or fact. (6) Participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false. (7) Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent. (8) Knowingly engage in other illegal conduct or conduct contrary to a Disciplinary Rule. (B) A lawyer who receives information clearly establishing that: (1) His client has, in the course of the representation, perpetrated a fraud upon a person or tribunal, shall promptly call upon his client to rectify the same, and if his client refuses or is unable to do so, he shall reveal the fraud to the affected tribunal and may reveal the fraud to the affected person. (2) A person other than his client has perpetrated a fraud upon a tribunal shall promptly reveal the fraud to the tribunal. [Emphasis added]. Ethical Consideration 7-26 reads: The law and Disciplinary Rules prohibit the use of fraudulent, false, or perjured testimony or evidence. A lawyer who knowingly participates in introduction of such testimony or evidence is subject to discipline. A lawyer should, however, present any admissible evidence his client desires to have presented unless he knows, or from facts within his knowledge should know, that such testimony or evidence is false, fraudulent, or perjured. . At one point Davis interposed an objection on Newcomb's behalf, saying "Excuse me, I'm sorry. Mr. Newcomb wouldn't know how to do this but I would object to any testimony as to any exhibits that are not placed in evidence." This was the sum of Davis' objections. . In People v. Schultheis, 638 P.2d 8, 13-14 (Colo.1981) the court said: Even when counsel makes a motion to withdraw, however, the defendant is always entitled to an impartial trial judge, untainted by accusations that the defendant had insisted upon presenting fabricated testimony. Therefore, we hold that defense counsel, in a motion to withdraw, should never be required to cite the specific provisions of the Code of Professional Responsibility which prohibit the use of perjured testimony or false evidence. The court of appeals' rule [which said the attorney should reveal the code provision] is tantamount to a full disclosure to the court, since citing specific ethical provisions enables the court to determine that the factual basis for the motion to withdraw is the defendant's intention to present false alibi testimony. We do not approve of such a rule. Defense counsel should not, in any way, be required to divulge a privileged communication to the trial court during trial. See Code of Professional Responsibility, DR 4-101. When confronted with a client who insists upon presenting perjured testimony as to an alibi, counsel may only state, in the motion to withdraw, that he has an irreconcilable conflict with his client. An "irreconcilable conflict" may mean a conflict of interest, a conflict of personality, a conflict as to trial strategy, or a conflict regarding the presentation of false evidence. The integrity of the trial proceedings is thereby preserved. The ABA Standards Relating to the Prosecution and Defense Functions (Approved Draft 1971) provide: Standard 7.7 Testimony by the defendant. (a) If the defendant has admitted to his lawyer facts which establish guilt and the lawyer's independent investigation establishes that the admissions are true but the defendant insists on his right to trial, the lawyer must advise his client against taking the witness stand to testify falsely. (b) If, before trial, the defendant insists that he will take the stand to testify falsely, the lawyer must withdraw from the case, if that is feasible, seeking leave of the court if necessary. (c) If withdrawal from the case is not feasible or is not permitted by the court, or if the situation arises during the trial and the defendant insists upon testifying falsely in his own behalf, it is unprofessional conduct for the lawyer to lend his aid to the perjury or use the perjured testimony. Before the defendant takes the stand in this circumstance, the lawyer should make a record of the fact that the defendant is taking the stand against the advise of counsel in some appropriate manner without revealing the fact to the court. The lawyer must confine his examination to identifying the witness as the defendant and permitting him to make his statement to the trier or the triers of the facts; the lawyer may not engage in direct examination of the defendant as a witness in the conventional manner and may not later argue the defendant's known false version of facts to the jury as worthy of belief and he may not recite or rely upon the false testimony in his closing argument. [Emphasis added]. . Assuming Newcomb wanted to commit perjury, there is, of course, the possibility that he could lie to the second attorney so that the attorney would put Newcomb on the stand to commit perjury. The possibility of perjury is present in any case. There are severe penalties for perjury, and we believe that our institutions are strong enough to withstand the threat of perjury. Certainly jurors are aware that any witness with a strong interest in the outcome of a case will be tempted to lie. The testimony of other witnesses in the case and the skillful use of cross-examination normally make perjury a risky and self-defeating course of action. . We believe that Coleman v. State, 621 P.2d 869 (Alaska 1980), cert, denied, 454 U.S. 1090, 102 S.Ct. 653, 70 L.Ed.2d 628 (1981), is distinguishable from the case at bar. In Coleman the defendant's attorney moved to withdraw on the day of trial, alleging a breakdown of the attorney-client relationship and alleging that he could not place his client on the stand because he would be putting on perjured testimony. The superior court denied the motion to withdraw and ordered the attorney to put Coleman on the stand, question him, and argue his case to the jury. Although the supreme court did not necessarily approve of the fact that counsel revealed the perjury to the court or of the fact that the trial court ordered full representation, the court concluded that Coleman was not harmed by the procedure employed and therefore affirmed Coleman's conviction. The supreme court upheld the trial court's decision that Coleman's attorney had not acted improperly and upheld the trial court's conclusion that appointing another public defender would not have solved Coleman's problems with his attorney which the court concluded were based upon a distrust of public defenders and the judicial system in general. In Newcomb's case we believe that the record supports the inference that Newcomb's problem with his attorney may very well have been a problem with a particular attorney, Davis, and may not have arisen with another attorney. The supreme court also stressed that the trial judge ordered Coleman's attorney to give him full representation and pointed out that Coleman thus had a very favorable situation in having an attorney who would be fully aware of the facts of the case and yet would be able to give his client full representation. The court believed that the record indicated that Coleman received full and competent representation. In Newcomb's case the record indicates that the conflict in the attorney-client relationship permeated the trial. It is true that Coleman did not testify in his case. However, Coleman did not testify after the court urged him to take the stand; his attorney would have been able to question him and argue his position. Newcomb did not take the stand, but it was clear his attorney was not going to question him or argue his position. Newcomb specifically stated that he did not want to take the stand unless he had an attorney he trusted. Although the supreme court did not necessarily approve of all the procedures used in Coleman's case, it concluded that the alternatives which the trial court took re- suited in a trial which was clearly fair to Coleman. We simply do not believe the record allows us to reach a similar conclusion in New-comb's case.

10557938

ALASKA STATE HOUSING AUTHORITY, Appellant, v. Edna DIXON, and other low-rent tenants similarly situated, Appellees

Alaska State Housing Authority v. Dixon

1972-05-05

No. 1529

649

651

496 P.2d 649

496

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:31:12.080307+00:00

CAP

Before BONEY, C. J., and RABINO-WITZ, CONNOR and ERWIN, JJ.

ALASKA STATE HOUSING AUTHORITY, Appellant, v. Edna DIXON, and other low-rent tenants similarly situated, Appellees.

ALASKA STATE HOUSING AUTHORITY, Appellant, v. Edna DIXON, and other low-rent tenants similarly situated, Appellees. No. 1529. Supreme Court of Alaska. May 5, 1972. Donna Page, Anchorage, for appellant. John Reese, Alaska Legal Services Corp., Anchorage, for appellees. Before BONEY, C. J., and RABINO-WITZ, CONNOR and ERWIN, JJ.

1329

8328

BONEY, Chief Justice. This case presents the single issue of whether or not the Alaska Administrative Procedure Act (hereinafter, the APA) applies to the Alaska State Housing Authority (hereinafter, ASHA). In July, 1970, the Board of Directors of ASHA resolved to amend its Statement of Policies to conform them to recent changes of law. Preliminary drafts were prepared and a public meeting was held on October 22, 1970, to solicit recommendations and comments. A second public meeting, scheduled for November 9, 1970, was cancelled when ASHA was requested by Alaska Legal Services Corporation, representing a group of tenants, to hold public hearings in conformity with the APA. ASHA refused and filed a complaint seeking a declaratory judgment that the APA is not applicable to ASHA. Both parties moved for summary judgment. The superior court granted summary judgment to Dixon, holding that ASHA is a state agency within the meaning of the APA and that the proposed Statement of Policies was a regulation subject to the APA. From that judgment, ASHA has brought this appeal. Under the approach taken by this court in DeArmond v. Alaska State Development Corp. and Walker v. Alaska State Mortgage Ass'n, we conclude that ASHA is an instrumentality of the state within the Department of Commerce. The fol lowing factors parallel those stressed in those cases: (1) ASHA is created as a "public corporate authority" "within the Department of Commerce (2) the Commissioner of Commerce is a member of the board of directors of ASHA; (3) the other four members of that board, and of course the Commissioner of Commerce, are appointed by the governor and serve at his pleasure; (4) ASHA is required to submit several annual reports to the Department of Commerce. As an instrumentality of the state within the Department of Commerce, ASHA comes within the meaning of "state agency" as that term is used and defined in the APA: "[S]tate agency" means a department, office, agency, or other organizational unit of the executive branch, except one expressly excluded by law, but does not include an agency in the judicial or legislative department of the state government. There being no express exclusion of ASHA from the APA, we conclude that ASHA is bound to adhere to the provisions of the APA. ASHA's separate corporate nature does not detract from this conclusion. The legislature may have had a special reason for choosing the corporate vehicle; e. g., to insulate the state from potential liabilities. Moreover, as Davis has pointed out: An administrative agency may be called a commission, board, authority, bureau, office, officer, administrator, department, corporation, administration, division, or agency. Nothing of substance hinges in the choice of name . . . . We therefore conclude that the .APA should apply to ASHA. The decision of the superior court is affirmed. BOOCHEVER, J., not participating. . AS 44.62.010-650. . 376 P.2d 717 (Alaska 1962). The plaintiff there appealed from a denial of'liis request for a judgment declaring unconstitutional the act creating the Alaska State Development Corp. (hereinafter, ASDC). Among the various constitutional provisions alleged by the plaintiff as having-been violated by the act creating ASDC was article III, section 22, of the Alaska Constitution, which states: All executive and administrative offices, departments, and agencies of the state government and their respective functions, powers, and duties shall be allocated by law among and within not more than twenty principal departments, so as to group them as far as practicable according to major purposes. Regulatory, quasi-judicial, and temporary agencies may be established by law and need not be allocated within a principal department. The court held that ASDC was an instrumentality of the state within the Department of Commerce, emphasizing the following factors in reaching its decision: (1) the Commissioner of Commerce is on the board of directors of ASDC; (2) the other six members of that board are appointed by the governor and serve at his pleasure; (3) the board of directors submits an annual report to the governor and the legislature; (4) ASDC's financial records are audited annually by the legislative auditor; (6) the act creating ASDC specifically provides that the "corporation is an instrumentality of the state within the Department of Commerce, but has a legal existence independent of and separate from the state." The court noted that this separate existence is true for all corporations. The court upheld the constitutionality of the act creating ASDC. . 416 P.2d 245 (Alaska 1966). A taxpayer there unsuccessfully attacked as unconstitutional the legislation providing for the creation of the Alaska State Mortgage Association (hereinafter, ASMA). Most of the taxpayer's attacks were the same as those made on ASDC in De-Armond. The court rejected the taxpayer's argument that article III, section 22, of the Alaska Constitution, note 2 supra, had been violated. The court reaffirmed its adherence to the principles stated in DeArmond, and emphasized the following factors: (1) the act creates ASMA as "a public corporation and government instrumentality within the Department of Commerce, but having a legal existence independent of and separate from the state . . . ." (2) ASMA is required to submit a comprehensive annual report to the governor and the legislature; (3) ASMA is subject to an annual audit by the legislative auditor; (4) the minutes of every meeting of ASMA are sent to the governor ; (5) the Commissioner of Commerce serves on the board of directors of ASMA; (6) at the time that the litigation arose the other four members of the board were the executive director of ASHA and three of the board members of ASHA [now the other four are all members of the board of ASHA] ; (7) the board members serve at the pleasure of the governor. The court again stated that the fact that the challenged body had an existence separate from the state was of no help to the party attacking the constitutionality of the creation of that body for such separateness is of the nature of the corporate structure. The court upheld the constitutionality of the legislation creating ASMA. .ASHA refers us to Bridges v. Alaska Housing Authority, 349 P.2d 149 (Alaska 1959), as authority for the proposition that ASHA is not a state agency. There, the Alaska Housing Authority, the territorial predecessor to ASHA, used a declaration of taking in an eminent domain proceeding. The property owner appealed, arguing that the use of a declaration of taking was by statutory authorization only and that such authorization had not been granted to the Alaska Housing Authority. This court agreed with the property owner. The power to use a declaration of taking had been extended by the territorial legislature to the territory and to first class cities. The first state legislature also extended the power to school and public utility districts but refused to go any further. The court concluded that the legislation authorizing the Housing Authority to take by eminent domain did not include a grant of the power to use a declaration of taking and that the Housing Authority did not come within any legislation granting that power to enumerated bodies. The court specifically stated that the Housing Authority "is not the Territory or State of Alaska." We conclude that the case merely stands for the proposition that ASHA is not identical with the state. Dixon does not contend that ASHA is anything but "a subordinate corporate authority created by the state." ASHA's reliance on Bridges is therefore misplaced. . . . AS 18.55.030. . AS 18.55.020. . Id. . AS 39.05.060. . AS 39.05.020-030. . AS 18.55.270, 18.55.430, 18.55.640. . AS 44.62.640(a) (4). . Cf. Walker v. Alaska State Mortgage Ass'n, 416 P.2d 245, 250 (Alaska 1966); DeArmond v. Alaska State Development Corp., 376 P.2d 717, 724 (Alaska 1962). . 1 K. Davis, Administrative Law § 1.01, at 1 (1958).

8987590

Andrew B. CASE, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee

Case v. Municipality of Anchorage

2006-01-27

No. A-9082

193

196

128 P.3d 193

128

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T19:31:47.331899+00:00

CAP

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

Andrew B. CASE, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.

Andrew B. CASE, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. No. A-9082. Court of Appeals of Alaska. Jan. 27, 2006. David S. Case, Anchorage, Landye Bennett Blumstein, LLP, for the Appellant. Rachel Plumlee, Assistant Municipal Prosecutor, and Frederick H. Boness, Municipal Attorney, Anchorage, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

1917

11885

OPINION MANNHEIMER, Judge. Andrew B. Case was ticketed for speeding, and he demanded a trial on this charge. Case asserts that he received permission from the district court to attend the trial telephonically, since he was about to leave Alaska to study in Europe. Case's trial was set for the afternoon of October 18, 2004. But Case failed to telephone the district court at the appointed time. After waiting for approximately forty minutes, Magistrate Jennifer K. Wells proceeded with the trial. The officer who gave Case the speeding citation testified that Case had indeed committed this offense. Based on this testimony, and based on Case's failure to appear, Magistrate Wells entered a default judgement against Case pursuant to Alaska District Court Criminal Rule 8(d)(6) Some ten weeks later, Case filed the first of a series of pleadings in which he asked the district court to set aside this default judgement under District Court Criminal Rule 8%), and to reschedule his trial. Although Magistrate Wells initially indicated that she believed Case had not acted with due diligence, she later conceded that Case might have been confused concerning the hour when he was supposed to call the court, given the time difference between Alaska and Spain. However, Magistrate Wells noted another deficiency in Case's pleadings. Under the Alaska appellate cases construing Alaska Civil Rule 60(b) (the civil rule counterpart to District Court Criminal Rule 8), a party seeking relief from a default judgement must assert that they have a meritorious defense to the opposing party's claim(s). In other words, a party seeking relief from a default judgement must show the court that there is, in fact, something to be litigated. As Magistrate Wells pointed out, Case never asserted that he had a meritorious defense to the speeding citation. In fact, Case expressly contended that he had no obligation to assert a defense. Case argued that a traffic citation "is- a criminal matter", and that "requiring a defendant to show [a] defense would impermissibly require that the defendant waive his right to remain silent in order to obtain a [trial]". Magistrate Wells rejected this contention. And, because Case failed to assert a defense to the speeding charge, the magistrate denied his motion to set aside the default judgement. Case then filed this appeal. Case renews his contention that, to the extent that Alaska law requires him to plead a meritorious defense to the speeding charge in order to get the default judgement set aside, Alaska law violates his Fifth Amendment right to remain silent. However, Case fails to cite any relevant case law to support this proposition. Case's Fifth Amendment argument might be stronger if Alaska law required the moving party to prove a meritorious defense as a pre-condition to setting aside a default judgement. But the burden on the moving party is simply to convince the court that there is something to litigate if the matter went to trial. The Alaska Supreme Court most recently addressed this point in Cook v. Rowland, 49 P.3d 262 (Alaska 2002). Here is how the supreme court described the rule that a party seeking to set aside a default judgement must demonstrate a "meritorious defense": It is not necessary that the defendant show that, if [the default is set aside], the ultimate outcome [of the litigation] will be different[. But] the defendant must demonstrate that the outcome might be different if a trial were held. Showing a meritorious defense demands more than a perfunctory statement that a meritorious defense exists. The defaulting party may be required to show that there is a factual or legal basis for the tendered defense. [The appellant in this case] contends that this requirement only means that a defendant must say more than the conclusory statement "I have a defense." But the exact standard is not so easily defined, because the amount of proof required will change based on the persuasiveness of the other equitable factors considered under [Civil] Rule 55(e)'s requirement of good cause. [On the other hand, we reject the appel-lee's argument] that a meritorious defense [always] requires both a claim of defense and a factual representation supporting that claim.... [In several . cases we have not required evidencel[,] but have found a meritorious defense when facts supporting a claim of defense are merely alleged. Again, the existence and quality of evidence establishing a meritorious defense is a factor to be weighed in determining whether good cause exists to set aside the default judgment. Cook v. Rowland, 49 P.3d at 265-66 (emphasis added) (footnotes and internal quotations omitted). In other words, the rule does not require the presentation of an extensive or full-blown defense. In some instances (as noted in Cook v. Rowland), the defendant's burden can be satisfied by simply presenting an arguable theory of defense-allegations which, if ultimately supported by credible evidence, would defeat the opposing party's claim. Case argues that the Fifth Amendment protects a criminal defendant from disclosing even this much about his case. But, as we noted above, Case has failed to provide us with any authority to support this assertion. And our own research has not revealed any cases on point. Moreover, we note that even though Alaska's privilege against - sélf-incrimination (Alaska Constitution, Article I, Section 9) has repeatedly been interpreted as providing broader protection than the corresponding federal privilege, the Alaska Supreme Court has nevertheless held that requiring a criminal defendant to give advance notice of their intention to raise a defense of "alibi" does not violate the defendant's privilege against self-incrimination. Scott v. State, 519 P.2d 774, 786-87 (Alaska 1974). We do not suggest that Case's constitutional argument is frivolous. However, because we must presume that the "meritorious defense" requirement is constitutional, it is Case's burden to affirmatively demonstrate that this requirement violates his Fifth Amendment privilege. It is sufficient, for present purposes, to note that (1) Case has failed to cite any authority to support his Fifth Amendment assertion, (2) our own research has revealed no case law that prohibits courts from enfore-ing a "meritorious defense" requirement against criminal defendants, and (8) even under Alaska constitutional law as expounded in Scott, the "meritorious defense" requirement appears not to infringe the privilege against self-incrimination, at least to the extent that the "meritorious defense" rule merely requires defendants to give advance notice of their general theory of defense. Given these cireumstances, we conclude that we need not-and should not-definitively resolve the Fifth Amendment issue raised by Case in this appeal. Rather, as we said in Nason v. State, "it is better to leave [this] important [constitutional] issue[ ] undecided." We therefore simply hold that, with regard to Case's Fifth Amendment challenge to the "meritorious defense" requirement, Case has failed to rebut the presumption that this requirement is constitutional. We accordingly AFFIRM the district court's ruling that Case is obliged to plead a meritorious defense as one element of his motion to set aside the default judgement. Now that we have clarified the law that governs Case's motion to set aside the default judgement, Case should have the opportunity to file an amended motion that includes the assertion of a meritorious defense. Accordingly, Case shall have 80 days from the issuance of this opinion to file an amended motion to set aside the default judgement. If, within these 30 days, Case files an amended motion (one that includes an assertion of a meritorious defense), the district court shall reconsider the question of whether the default judgement against Case should be set aside. If, on the other hand, Case files no amended motion within the 30 days, the default judgement shall stand. We do not retain jurisdiction of this case. We do, however, add one final comment-a suggestion for a revision of the court system form that is currently given or mailed to people who indicate that they want to ask the court to set aside an already-entered default judgement. This form is entitled "Request and Order to Set Aside Judgment", and it currently bears the identifying number "TR-420 Anch (11/98) (st.4)". This form states (correctly) that District Court Criminal Rule 8(i) sets a one-year time Timit on motions to set aside a default judgement. The form then asks the person to explain why the default judgement should be set aside, and it provides four empty lines for this explanation. The problem is that the form does not provide any information concerning the law that governs requests for setting aside a default judgement. As we noted in Zok v. Anchorage, 41 P.3d 154 (Alaska App.2001), a litigant who seeks to have a default judgement set aside must pursue one of two paths. Either the litigant must allege that their right to due process was violated in the earlier proceeding (i.e., they did not receive fair notice of the proceeding, or they did not have a fair opportunity to respond before the default was entered), or alternatively, the litigant must allege that there is a good reason to set aside the default judgment and that they have a meritorious defense to present if the case is re-opened. Zok, 41 P.3d at 155-56. As Case correctly noted when he argued this appeal to us, the court system form is completely silent regarding these legal requirements. Thus, unless a person has the means or the good fortune to consult a lawyer, there is a good chance that they will fail to address these legal requirements when they give their four-line handwritten explanation of why the default judgement should be set aside. And, because the form allows the assigned judge to deny the set-aside by simply checking a box labeled "Request denied", the person requesting the set-aside may never know that their request was denied because they failed to address these legal requirements. We agree with Case that this form should be changed so that it informs people of what they must prove if they wish to have a default judgement set aside. . This rule reads: "The court may . enter a judgment of conviction against a person who requests a trial [of a minor offense] if the person has been [notified of the] trial date and then fails to appear...." . See Cook v. Rowland, 49 P.3d 262, 265 (Alaska 2002) ("In addition to the specific showing of excusable neglect, . the rules governing setting aside a default judgment generally require that the movant have a meritorious defense."); Hertz v. Berzanske, 704 P.2d 767, 771 n. 5 (Alaska 1985); Gregor v. Hodges, 612 P.2d 1008, 1009-1010 (Alaska 1980); Balchen v. Balchen, 566 P.2d 1324, 1328 n. 11 (Alaska 1977); Markland v. Fairbanks, 513 P.2d 658, 659-660 (Alaska 1973). See also Disciplinary Matter Involving Beconovich, 884 P.2d 1080, 1083 (Alaska 1994) ("[The] respondent attorney must show a meritorious defense and excusable neglect to warrant relief from the operation of [Alaska] Bar Rule 22(a)," which provides that an attorney's failure to answer a grievance within the prescribed time will be deemed an admission.). . See Beavers v. State, 998 P.2d 1040, 1046 n. 30 (Alaska 2000); State v. Gonzalez, 853 P.2d 526, 530 (Alaska 1993); Scott v. State, 519 P.2d 774, 785 (Alaska 1974). . 102 P.3d 962, 965 (Alaska App.2004).

10428814

Cummings SMITH, Sr., Appellant, v. STATE of Alaska, Appellee

Smith v. State

1982-09-24

No. 5211

7

10

651 P.2d 7

651

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T19:30:38.512786+00:00

CAP

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

Cummings SMITH, Sr., Appellant, v. STATE of Alaska, Appellee.

Cummings SMITH, Sr., Appellant, v. STATE of Alaska, Appellee. No. 5211. Court of Appeals of Alaska. Sept. 24, 1982. Christine Schleuss, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for appellant. Elizabeth H. Sheley and Peter A. Michal-ski, Asst. Attys. Gen., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for ap-pellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

1504

9208

OPINION COATS, Judge. Cummings Smith, Sr., was charged in a two-count indictment with embezzlement of public money, former AS 11.20.300, and with embezzlement by employee, former AS 11.20.280. Following a thirty-three day trial, a jury found Smith guilty of embezzle ment of public money. He was sentenced to five years with four-and-one-half years suspended and was ordered to pay the Municipality of Anchorage $20,000 as restitution. In this appeal, Smith argues that the court improperly instructed the jury on the elements of embezzlement. Since no objection to the instructions was made at trial, a plain error standard of review must be employed. Applying that standard to the facts of this case, we conclude that plain error was not committed, and we accordingly affirm Smith's conviction. To summarize briefly the facts of the case: Smith was charged with embezzling municipal funds between August 12, 1976, and October 27, 1977. During that time, Smith worked within the,traffic engineer's office as transportation inspector for the Municipality of Anchorage. As transportation inspector, Smith regulated the taxicab industry in Anchorage. His duties included issuance and renewal of taxicab permits and chauffeurs' licenses as well as inspection of all for-hire vehicles, such as cabs and limousines. In 1977, Courtney Tomlinson, an internal auditor for the municipality, performed a routine audit of various municipal departments. The inability to account for cash receipt books checked out to the traffic engineer's department led to a more thorough examination of the situation. Ultimately, it was discovered that someone in the transportation inspector's office had collected fees which were never turned in to the finance department. Smith was charged with embezzlement of public money and embezzlement by employee. At trial, the defense conceded the fact that the funds were missing. However, the defense argued that Smith was not the person who had converted the money. The jury, however, accepted the state's circumstantial evidence against Smith and found him guilty of embezzlement of public money- Smith's sole point on appeal concerns the trial jury instructions which set out the elements of the charge of embezzlement of public money, former AS 11.20.300. Specifically, Smith argues that the court's instructions impermissibly broadened the statutory definition of embezzlement of public money. Former AS 11.20.300 provided, in pertinent part: Embezzlement of public money. A person who receives money for the state or a borough, town or other municipal or public corporation, or who has in his possession money belonging to the state, borough, town, or other municipal or public corporation, or in which any of the foregoing has an interest, and who converts it or any portion to his own use . is guilty of embezzlement.. . . [Emphasis added] Two of the court's instructions to the jury, however, stated it was embezzlement to convert the money either to one's own use or "to a use other than the purpose for which it was received." Smith argues that it was error to instruct the jury in these terms because the language of the instructions impermissibly broadened the offense charged, thereby prohibiting conduct beyond either that prohibited by the statute or that specified in the indictment. Smith asserts that so instructing the jury violated his right to due process of law. Although Smith failed to object to the challenged jury instructions at trial, he nevertheless argues that this court should reverse his conviction pursuant to Alaska Criminal Rule 47(b) on grounds of plain error. That rule provides: Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. This standard was expanded in Evans v. State, 550 P.2d 830, 843 (Alaska 1976), where the Alaska Supreme Court discussed the plain error rule in the context of a challenged jury instruction. The court stated: To constitute 'plain error' the defect [in the instruction] must be both obvious and substantial. The giving of an incorrect instruction should be recognized as plain error only when necessary to prevent a miscarriage of justice. The defect must have been obviously prejudicial. If it appears that failure to give defendant's proposed instruction did not contribute to the verdict, reversal is not required. [Citations omitted] See also Burke v. State, 624 P.2d 1240, 1256-57 (Alaska 1980). Viewing the facts of the instant case in the light of this standard, we do not believe that the trial court committed plain error in giving the challenged instructions to the jury. Our decision in this regard is supported by a number of considerations. First, it does not appear obvious to us that the language of the challenged instructions did in fact impermissibly broaden the statutory definition of the offense. It is at least arguable that the statutory language prohibiting conversion "to his own use" encompasses a prohibition against conversion of the money "to a use other than the purpose for which it was received." R. Perkins, Criminal Law 292 (2d ed. 1969), states: "Statutes sometimes speak in terms of conversion 'to one's own use' but this has not been narrowly construed." W. LaFave & A. Scott, Criminal Law § 89, at 645 (1972), states: Embezzlement statutes often are worded in terms of the wrongdoer's conversion 'to his own use.' These words are not to be taken literally, however, for it is not a requirement for a conversion that the converter gain a personal benefit from his dealing with the property. Although we recognize that Smith has cited cases standing for a proposition contrary to that set out in the treatises, United States v. Williams, 478 F.2d 369 (4th Cir. 1973); United States v. Overbay, 444 F.Supp. 259 (E.D.Tenn.1977), we do not believe, given the split of authority, that it can be said that the instructions' defects were so obvious as to support a finding of plain error. We are further inclined to reject plain error because Smith does not appear to have been substantially prejudiced by the challenged instructions. The focus of the case at trial was on the question of who took the money; the focus was not on what was done with it. Although, of course, what was done with the money could in some cases be viewed as probative of who actually took it, we believe that in this case the question of how the money was actually spent was more in the nature of a collateral issue. The jury was instructed that the state had to prove beyond a reasonable doubt "[t]hat the defendant did wilfully, unlawfully, and with intent to defraud" convert the municipality's money. This requirement was further expanded and defined in a number of subsequent instructions. Given this finding, we do not believe it can be said either that Smith was obviously prejudiced or that a miscarriage of justice occurred. Accordingly, we see no basis upon which to find plain error. The judgment of conviction is AFFIRMED. . Prior to final argument at trial, the state dismissed the charge of embezzlement by employee. . The statute also makes it illegal to loan public money or to neglect or refuse to pay over public money as required by law or when lawfully demanded to do so. The indictment charging Smith, however, did not employ any of this language. . Jury Instruction 16 quoted the language of former AS 11.20.300 and then stated, in pertinent part: In order for the defendant to be found guilty of embezzlement of public money, the evidence must establish each of the following beyond a reasonable doubt: (1) That from on or about August 12, 1976 through on or about October 27, 1977 at or near Anchorage, in the Third Judicial District, State of Alaska, the defendant received money for and on behalf of the Municipality of Anchorage; (2) That the defendant did wilfully, unlawfully, and with intent to defraud; (3) Convert a portion of this money to his own use or to a use other than the purpose for which it was received. Jury Instruction 18 stated in full: The evidence must establish beyond a reasonable doubt that money entrusted to the defendant was fraudulently converted by him to his own use or to some purpose other than that for which he received it. However, it is not necessary that the evidence establish the precise manner in which the money was con verted, nor is it necessary that the evidence establish that the defendant was personally enriched. . Had the defense actually relied upon the fact that Smith had not personally used the embezzled money as a complete and independent defense, we do not think it unreasonable to conclude that defense counsel should have brought the alleged defects in the instructions to the attention of the trial court prior to their presentation to the jury.

10433747

PARKER DRILLING COMPANY and Commercial Union Assurance Company, Appellants, v. Rick WESTER and Alaska Workers' Compensation Board and Alaska Pacific Assurance Company, Appellees

Parker Drilling Co. v. Wester

1982-09-24

No. 5759

842

845

651 P.2d 842

651

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:30:38.512786+00:00

CAP

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

PARKER DRILLING COMPANY and Commercial Union Assurance Company, Appellants, v. Rick WESTER and Alaska Workers’ Compensation Board and Alaska Pacific Assurance Company, Appellees.

PARKER DRILLING COMPANY and Commercial Union Assurance Company, Appellants, v. Rick WESTER and Alaska Workers’ Compensation Board and Alaska Pacific Assurance Company, Appellees. No. 5759. Supreme Court of Alaska. Sept. 24, 1982. Sanford M. Gibbs, Hagans, Brown & Gibbs, Anchorage, for appellants. Michael A. Barcott and Monica Jenicek, Faulkner, Banfield, Doogan & Holmes, Anchorage, for appellees. Before BURKE, C. J., and RABINOW-ITZ, CONNOR, MATTHEWS and COMPTON, JJ.

1596

10065

OPINION PER CURIAM. Rick Wester, an 18 year old roustabout on a Cook Inlet drilling rig, was seriously injured while working for Parker Drilling Company on April 2, 1975. He fell some thirty feet to the steel deck of the rig, fracturing his hip and right arm, shattering his right elbow, and suffering internal injuries. Wester was temporarily totally disabled through July 1975. At that time his doctor released him to return to work on a trial basis. Following his return to work, West-er's arm and elbow showed "periosteal post-traumatic reaction." Post-traumatic arthritis was predicted as a possibility as early as October 1975. In January 1976, the doctor reported Wester's complaints of increasing pain and stated: "I do not believe he is going to be employable as a roustabout on the drill ing rig. He has sufficient permanent damage to his right elbow which prohibits him from doing heavy labor and as time goes on he will develop a progressive arthritic deterioration of the elbow." The doctor suggested vocational rehabilitation and stated "at this point [Wester] realizes that his future is not in this type of heavy labor." Wester evidently decided to take his chances and to continue work on the rig. He was given a permanent partial disability rating of loss of 50% of an arm, a lump sum payment was made, and his workers' compensation file was closed in early 1976. Wester suffered a traumatic on-the-job injury to his right elbow and arm in October 1976, but continued to work on the drilling rig during those periods that he was not disabled. In September 1977, he was again cautioned that "this is not going to be a long term type of job for him" and that he already had a significant post traumatic arthritis "which is going to gradually get worse." In 1978, Wester lost three weeks work time when he cut his left hand. He injured his right elbow again in January 1979. The 1979 injury healed completely and did not aggravate or accelerate the pre-existing degenerative arthritis of the right arm. Once again, however, Wester's doctor advised him not to return to his previous employment "because of the degenerative disease that is in his elbow as a result of his initial surgery and fracture." This time, Wester evidently decided to heed his doctor's advice and he requested vocational rehabilitation funds. Parker Drilling Company had switched workers' compensation carriers in February 1977, changing from Commercial Union Assurance Company [Commercial Union] to Alaska Pacific Assurance Company [ALPAC]. Both carriers refused to provide Wester with vocational rehabilitation funds, each claiming that it was the other carrier's duty to make the payment. Wester brought an amended application before the Workers' Compensation Board seeking temporary total disability compensation, permanent partial disability compensation, the statutory 20% penalty for late payments, vocational rehabilitation funds, medical costs, costs and attorney's fees. A hearing was held before the Board on August 1, 1979. The Board found that Wester's need for vocational rehabilitation was a direct consequence of the 1975 injury, and that there had been no additional injury or aggravation of the original injury. Thus, the Board concluded that Commercial Union, the insurer at the time of the original injury, was responsible for payment of the rehabilitation funds. Commercial Union appealed to the superi- or court. In a memorandum decision, the superior court affirmed the Board's decision. Commercial Union appeals again. Commercial Union argues that Wester's employment after the change in insurance carriers contributed to his present disability and that under the last injurious exposure rule adopted in Ketchikan Gateway Borough v. Saling, 604 P.2d 590 (Alaska 1979), ALPAC should be liable for all vocational retraining or other payments. In Saling, we held that when employment with successive employers contributes to a worker's disability, the employer at the time of the most recent injury is liable for disability payments. We also made it clear that aggravation of a preexisting condition is sufficient to impose liability on the successor employer. 604 P.2d at 592 n.4. Although Saling involved successive employers, while this case involves successive carriers, the distinction is of no significance as far as application of the last injurious expo sure rule is concerned. See 4 A. Larson, Workmen's Compensation Law § 95.12 at 17-71 (1982). In this light, the factual issue before the Board was whether Wester's employment while ALP AC was the carrier aggravated or accelerated the degenerative arthritis in his right arm. On appeal, the factual findings of the Board must be upheld if there is substantial evidence to support them. Vetter v. Alaska Workmen's Compensation Board, 524 P.2d 264, 265 (Alaska 1974). In its decision, the Board focused solely on the 1979 injury, finding that it was. not an additional injury or an aggravation, but rather that it was merely a recurrence of the 1975 injury. The evidence is clear and uncontradicted, and it is uncontested by Commercial Union, that the 1979 injury did not contribute to Wester's current disability. However, the Board's focus was too narrow; it should have also considered whether Wester's employment while ALP AC was the carrier in any other way accelerated or aggravated the degenerative arthritic condition originally caused by the 1975 accident. The evidence is clear that Wester's continued use of his arm in heavy labor aggravated or accelerated his preexisting injury. When asked about the degenerative arthritic condition of Wester's elbow, Wester's doctor expressed an opinion that the "[degenerative] changes . can be greatly accelerated with hard use." According to the doctor's testimony, if Wester had stopped working in his field, there would have been fewer degenerative changes in his arm. ALP AC has not pointed to any evidence that negates these opinions expressed by the doctor, nor have we found any. It is thus apparent that there is no substantial evidence to support a finding that Wester's employment while ALP AC was the carrier did not aggravate or accelerate the preexisting condition. We therefore conclude that there is no substantial evidence to indicate that the date of Wester's "last injurious exposure" was at any time prior to the date he ceased working for Parker Drilling, a conclusion we reach without any reliance on the injury which occurred on that day. The remaining issue before us is whether the last injurious exposure rule adopted in Saling as to permanent total disability benefits is also applicable as to vocational retraining benefits. We see no reason why the Saling rationale should not be extended to cover vocational rehabilitation benefits. In Saling, we concluded that the Board's finding of a preexisting total disability was without support in view of Saling's demonstrated earning capacity following the first injury. It would be inconsistent to reach a different result as to the need for retraining. Wester's demonstrated earning capacity following his first injury is thus equally decisive on the question of his need for vocational retraining. As long as Wester continued to work at his former job, his earning capacity was not impaired and he was not entitled to receive retraining benefits. In conclusion, we hold that there was no substantial evidence before the Board from which it could be determined that Wester's "last injurious exposure" occurred at any time prior to the time he was forced to cease working due to his 1979 injury. The judgment of the superior court affirming the Board's decision is REVERSED and this case is REMANDED for further remand to the Board for entry of such orders consistent with this opinion as may be appropriate. . The doctor's report to the Workers' Compensation Board at this time indicated that the only significant remaining problem was a lack of function in the right elbow; the doctor noted "some permanent residual disability" apparently primarily due to the elbow. . An equally blunt assessment had previously been made in December 1975, when the doctor noted Wester felt so limited in function that he might actually endanger his co-workers. . Wester lost two months work when his right arm was struck by drilling tongs in October 1976. Surgery was performed in mid-1977 to alleviate residual problems; according to the insurance carrier's reports this surgery was connected to the 1976 accident, although the doctor's report indicates the 1975 injury was the cause. . This was the conclusion of the superior court as well. The court's decision states in part: "Nor is there any question that use of the elbow joint from 1975 to 1979 aggravated the degenerative condition." . ALPAC's strongest argument on the factual issue is that the amount of post-1977 degeneration is unclear and that there is substantial evidence to show pre-1977 degeneration. Obviously, these arguments do not address the issue of substantial evidence negating aggravation or acceleration of the preexisting condition. .The present status of this case is not clear from the record before us. It appears that the Board has subsequently decided various questions left open by its decision herein. We also note that the Board's decision herein is silent with respect to Wester's various requests for temporary total disability, permanent partial disability, a 20% late payment penalty, medical costs, and attorney's fees. We express no opinion as to the appropriate course for the Board with respect to any of those claims.

10555988

Melvin Ray KINSMAN, Appellant, v. STATE of Alaska, Appellee

Kinsman v. State

1972-04-21

No. 1523

63

66

496 P.2d 63

496

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:31:12.080307+00:00

CAP

Before BONEY, C. J., and RABINO-WITZ, CONNER, BOOCHEVER and ERWIN, JJ.

Melvin Ray KINSMAN, Appellant, v. STATE of Alaska, Appellee.

Melvin Ray KINSMAN, Appellant, v. STATE of Alaska, Appellee. No. 1523. Supreme Court of Alaska. April 21, 1972. Herbert D. Soil, Public Defender R. Collin Middleton, Lawrence J. Kulik, Asst. Public Defender, Anchorage, for appellant. John E. Havelock, Atty. Gen., Juneau, Harold M. Brown, Dist. Atty., Ketchikan, for appellee. Before BONEY, C. J., and RABINO-WITZ, CONNER, BOOCHEVER and ERWIN, JJ.

1490

8772

OPINION BONEY, Chief Justice. The defendant, Kinsman, appeals from an order of the superior court dismissing his appeal from a district court judgment of conviction. On June 24, 1970, Kinsman was convicted in district court of assault and battery. He filed a timely Notice of Appeal and Statement of Points. Points No. 2, 3, 4, and 5 of which were stated as follows : 2. Remarks made by the District Attorney in his final argument were prejudicial to the defendant. 3. Remarks made by the judge during the Voir Dire of the jurors constituted a substantial impairment of the defendant's right to be tried by a fair and impartial jury. 4. Remarks of the judge on issues of law, made throughout the trial, exceeded the scope of allowable limitations as set forth by District Court Rule 1(c). 5. Defendant was prejudiced by the belief of the judge in his obvious guilt, as reflected by the judge's remarks at various stages of the proceedings. On September 30, 1970, the state moved for an order' requiring Kinsman to allege with more particularity what remarks were prejudicial to him. The parties subsequently stipulated to and the superior court ordered an exchange of briefs in lieu of a hearing on the state's motion. On February 10, 1971, the date his brief was due, Kinsman filed a motion for extension of time to file his brief until February 17, 1971. The parties then entered into a second written stipulation on March 24, 1971 to the effect that the defendant be allowed to file his brief on March 29, 1971, and the superior court so ordered. Again, the brief was not filed on the required date. On May 19, 1971, with no prior notification to Kinsman, the superior court dismissed the appeal for lack of prosecution. A motion for reconsideration was then filed by Kinsman, a hearing was held on the motion, and the relief was denied. On appeal to this Court, Kinsman argues that the superior court is required by statute and District Court Rule of Criminal Procedure 2 to dispose of his appeal on the merits once he had complied with all' the requirements for bringing that appeal from the district court to the superior court. Kinsman contends that he has satisfied all those requirements and that therefore it was error for the superior court to dismiss his appeal. In Lee v. State this Court approved the practice whereby the superior court determines the appeal from district court upon the record unless in its discretion a trial de novo in whole or in part is necessary. The Court noted that there was no necessity for the superior court to notify the appellant that the court intended to base its decision entirely upon the record. In that case, the defendants argued that the superior court had erred in not allowing their counsel to be heard prior to rendering a decision. The Court disposed of that argument, by noting that under the rules of criminal procedure the superior court had the power to entertain "appropriate motions". The Court noted that over five months had elapsed while the case was pending in the superior court and that no motion for a hearing had been brought by the defendants. Kinsman argues, in essence, that the superior court has no discretion but to dispose of the case either on the record or after a trial de novo. He relies on Lee v. State to the effect that: Where the record on appeal is sufficient for the court to determine the issues presented, it is incumbent upon the court to dispose of the appeal on the record alone. Where the record proves to be insufficient to permit the court to dispose of the issues presented, the court has the discretion to grant a new trial in whole or in part. Kinsman ignores, however, that part of Lee v. State where we discussed the power of the court to entertain "appropriate motions". District Court Criminal Rule 2(b) provides in part that: From the time of the filing of the magistrate's record the superior court shall have supervision and control of the proceedings on appeal, and may at any time, upon five days' notice, entertain appropriate motions, including motions to dismiss, for directions to the magistrate, or to vacate or modify any order of the magistrate in relation to the appeal, including any order for admission to bail. The state's motion for a more particular statement of allegations of prejudice and the stipulations of the parties were "appropriate motions" and the superior court was within its powers in ordering a time schedule for briefing. While inherent in its power to entertain "appropriate motions" is the power to police compliance with its orders entered pursuant to those motions, the superior court may not apply its rules in such a way as to work an injustice. We find that here the superior court abused its discretion in ordering a dismissal without first warning Kinsman that his continued failure to comply with the ordered schedule for briefs would lead to dismissal. We feel that Kinsman should not lightly be made to suffer, without warning, for the dilatoriness of his counsel in prosecuting his appeal. The order of dismissal is reversed and the case is remanded to the superior court. Reversed. ERWIN, J., dissenting. . AS 22.10.020(a) provides in pertinent part that: The superior court has jurisdiction in all matters appealed to it from a subordinate court, or administrative agency when appeal is provided by law. . . . The hearing on appeal from a final order or judgment of a subordinate court or ad ministrative agency shall be on the record unless the superior court, in its discretion, grants a trial de novo, in whole or in part. AS 22.15.240(c) provides: An appeal from the district court shall be taken within SO days from the date of entry of the judgment. All appeals shall be on the record unless the superior court, in its discretion, grants a trial de novo, in whole or in part. . Dist.Ct.R.Cr.P. 2. . 374 P.2d 868 (Alaska 1962). . Id. at 870. . See Cowgill v. State, 423 P.2d 907, 907-908 (Alaska 1967). . We note that motions to dismiss are in-cliided among the motions that Dist.Ct.R.Cr.P. 2(b) lists as appropriate. That the superior court has the power to dismiss is a proper inference from such inclusion. . Cowgill v. State, 423 P.2d 907, 908-909 (Alaska 1967) ; cf. Ketchikan Cold Storage Co. v. State, 491 P.2d 143 (Alaska 1971). . We find further support for our conclusion in the failure of the superior court to consider an oral agreement between the parties to the effect that the state would agree to a further enlargement of the time within which Kinsman could file his brief. This agreement was brought to the attention of the superior court in chambers before argument on Kinsman's motion to reconsider the order of dismissal.

10557969

Henry Allen THOMPSON, Appellant, v. STATE of Alaska, Appellee

Thompson v. State

1972-05-04

No. 1339

651

657

496 P.2d 651

496

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:31:12.080307+00:00

CAP

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

Henry Allen THOMPSON, Appellant, v. STATE of Alaska, Appellee.

Henry Allen THOMPSON, Appellant, v. STATE of Alaska, Appellee. No. 1339. Supreme Court of Alaska. May 4, 1972. Henry Allen Thompson, in pro. per. G. Kent Edwards, Atty. Gen., Juneau, Harold W. Tobey, Dist. Atty., Robert L. Eastaugh, Asst. Dist. Atty., Anchorage, for appellee. Before BONEY, C. J., and CONNOR, BOOCHEVER, RABINOWITZ and ERWIN, JJ.

3148

18856

OPINION BONEY, Chief Justice. On December 14, 1964 Henry Allen Thompson was indicted and arrested on felony counts of forgery, burglary and larceny. At the arraignment Thompson entered pleas of not guilty, and bail was set at $2500. He was unable to meet bail and thus remained in jail from the date of his arrest. During the trial Thompson changed his plea to guilty as to the count of forgery. The counts of burglary and larceny were subsequently dismissed. On April 7, 1965 he received an indeterminate sentence of one to twenty years pursuant to the inde terminate sentencing statute in effect at that time. On June 4, 1965, the superior court heard and denied Thompson's motion for suspension of the sentence. He immediately filed a "Notice of Appeal" which the superior court treated as an application to vacate sentence under Criminal Rule 35(b) because the applicant had previously entered a guilty plea. Upon denial of the motion, he appealed to this court for a determination of the voluntariness of his guilty plea. The case was remanded to the superior court for a factual hearing pursuant to Criminal Rule 35. The refusal of that court to grant the requested relief after it had made findings of fact was affirmed on appeal to this court. At all stages, Thompson was represented by counsel. In September 1969, Thompson again applied to the superior court for post-conviction relief. The superior court denied the requested relief, and he again appealed to this court. We remanded the case for an adjudication in accordance with Criminal Rule 35(g) or 35(h). On June 6, 1970, after due consideration, the superior court denied Thompson's application. From that decision Thompson now appeals. On his second application for post-conviction relief, and on this appeal, Thompson presents two constitutional issues: (1) He argues that the imposition of a possible 20-year sentence for forgery is cruel and unusual punishment, contrary to the protections of the eighth amendment to the United States Constitution and to the protections of article I, section 12 of the Alaska Constitution. (2) He further argues that the denial of credit for presentence detention time is an invidious discrimination against impecunious defendants unable to post bail, and hence in violation of the equal protection clause of the fourteenth amendment of the United States Constitution, and article T, section 1 of the Alaska Constitution. In Merrill v. State we held that, under Alaska Rule of Criminal Procedure 35(i), any ground for relief not raised in the original, supplemental or amended application will not be considered in a subsequent application unless the court finds "sufficient reason" for the failure to make the assertion in the first application. If the applicant is represented by counsel in the first application, there will be no presumption in his favor, and he will incur the burden of showing sufficient reason for his earlier failure to raise the issue. Because the instant case represents Thompson's second request for post-conviction relief, he must demonstrate sufficient reason for not having raised the present issues in his earlier application. As we noted in Merrill, when faced with a successive application, "the courts of this state stand ready to make a diligent search through the records and files of the case in order to discover if a sufficient reason exists for the failure of the applicant to raise the claim of error at an earlier stage of the proceedings." Thompson would have us find sufficient excuse for his not having raised the cruel and unusual punishment issue earlier in his claim that Faulkner v. Alaska, a case decided subsequent to his first application, has produced an intervening change in the law which will substantially alter the outcome of his case. The state responds that Faulkner is not new law because it applied the same test that was set forth in Green v. State, a case decided prior to Thompson's first application. In Green v. State we held that neither the United States nor the Alaska Constitution's prohibitions against cruel and unusual punishment were violated by statutes providing for a possible shorter minimum sentence for first degree murder than for second degree murder. The court stated the applicable test as follows: Only those punishments which are cruel and unusual in the sense that they are inhuman and barbarous, or so disproportionate to the offense committed as to be completely arbitrary and shocking to the sense of justice may be stricken as violating the due process clauses of the state and federal constitutions. Such punishments would also be void under article I, section 12 of the Alaska Constitution which declares that cruel and unusual punishments shall not be inflicted. In Faulkner v. State, Justice Dimond applied the test articulated in Green v. State to invalidate a thirty-six year sentence imposed for a single spree of bad check writing. Justice Rabinowitz concurred, arguing that this court has the power to review sentences. He agreed, however, with that part of Chief Justice Nesbett's dissent in which the Chief Justice expressed his views on the cruel and unusual punishment issue. Thus, while no opinion was fully acceptable to more than one member of our then three-man court, a majority of two justices specifically rejected the application of the Green v. State test. We fail to see, therefore, how Justice Dimond's remarks can be said to represent a change in the law in Alaska when they were expressive of the views of a minority of the court. Thompson has been unable to justify his failure to raise, on his first application, the cruel and unusual claim. Thompson next argues that Merrill v. State and Criminal Rule 35 (i) should not preclude our consideration of the equal protection issue involving credit for pre-sentence incarceration because the case of Sobell v. United States was decided after his first application. While recognizing that Sobell v. United States is not a change in the law of Alaska, he argues that it was the first case in the nation in which a court favorably passed upon the precise question presented in his case, and that under these circumstances he can be excused for not having earlier been aware of the issue. We disagree that Sobell v. United States was either the first ruling on the issue, or that it passed upon the precise question presented in the case before us. The court there explicitly avoided the constitutional question of presentence detention and decided the case on the basis of the federal statute and the pronouncements of the trial judge. Sobell v. United States was an outgrowth of an earlier case in another circuit, Stapf v. United States and the recognition by Congress of inequities in the federal bail system. Finally, even if we could recognize Sobell or Stapf as representing an intervening change in the law, we are moved to decision by the fact that it is not a change which affects the law of this jurisdiction. While we hold, therefore, that Thompson has failed to establish sufficient reason for his not having raised the issue in his first application for post-conviction relief, we nonetheless conclude that he should be granted credit against his sentence for his presentence time served. We agree with the Colorado Supreme Court that fairness dictates that such credit be given. Our legislature, subsequent to Thompson's sentencing, recognized the inequity of denying credit for presentence time and enacted AS 11.05.040(a) requiring that credit be given for time served pending trial, sentencing, or appeal. We conclude that denying Thompson credit would work an injustice which we are capable of avoiding by relaxing our rules. The sentence is vacated and the case is remanded to superior court for resentenc-ing consistent with this opinion. . AS 11.05.060 then provided: Courts imposing prison sentences for felonies shall sentence the defendant to the minimum and maximum term of imprisonment provided by law. [Ch. 43 § 3 SLA 1964] This sentencing scheme was repealed in 1965. [Ch. 68 § 1 SLA 1965] . At that time, Alaska R.Crim.P. 35(b) provided: (b) A prisoner in custody under sentence of the District Court for the District (Territory) of Alaska or the superior court of the State of Alaska claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States or the Constitution or laws of Alaska, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence or its successor, to vacate, set aside or correct the sentence. A motion for such relief may be made at any time. Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the State District Attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate. A court may entertain and determine such motion without requiring the production of the prisoner at the hearing. The sentencing court, or its successor, shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner. An appeal may be taken to the supreme court from the order entered on the motion as from a final judgment on application for a writ of habeas corpus. An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this subdivision, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or its successor, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention. . Thompson v. State, 412 P.2d 628 (Alaska 1966). . Thompson v. State, 426 P.2d 995 (Alaska 1967). . Alaska R.Crim.P. 35(g) provides: (1) Within 30 days after the docketing of the application, or within such further time as the court may fix, the state shall respond by answer or by motion which may be supported by affidavits. At any time prior to entry of judgment the court may grant leave to withdraw the application. The court may make appropriate orders for amendment of the application or any pleading or motion, for pleading over, for filing further pleadings or motions, or for extending the time of the filing of any pleading. In considering the application the court shall consider substance and disregard defects of form. If the application is not accompanied by the record of the proceedings challenged therein, the respondent shall file with its answer the record or portions thereof that are material to the questions raised in the application. (2) When a court is satisfied, on the basis of the application, the answer or motion, and the record, that the applicant is not entitled to post-conviction relief and no purpose would be served by any further proceedings, it may indicate to the parties its intention to dismiss the application and its reasons for so doing. The applicant shall be given an opportunity to reply to the proposed dismissal. In light of the reply, or on default thereof, the court may order the application dismissed or grant leave to file an amended application or direct that the proceedings otherwise continue. Disposition on the pleadings and record shall not be made when a material issue of fact exists. (3) The court may grant a motion by either party for summary disposition of the application when it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreements of fact, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Alaska R.Crim.P. 35(h) provides: The application shall be heard in, and before any judge of, the court in which the conviction took place. An electronic recording of the proceeding shall be made. All rules and statutes applicable in civil proceedings, including pre-trial and discovery procedures are available to the parties. The court may receive proof by affidavits, depositions, oral testimony, or other evidence. The court may order the applicant brought before it for the hearing. If the court finds in favor of the applicant, it shall enter an appropriate order with respect to the conviction or sentence in the former proceedings, and any supplementary orders as to rearraignment, retrial, custody, bail, discharge, correction of sentence, or other matters that may be necessary and proper. The court shall make specific findings of fact, and state expressly its conclusions of law, relating to each issue presented. The order made by the court is a final judgment. . 457 P.2d 231 (Alaska 1969). . Alaska R.Crim.P. 35(i) provides: All grounds for relief available to an applicant under this rule must be raised in his original, supplemental or amended application. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the applicant has taken to secure relief may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended application. . 457 P.2d at 238. . Id. . 445 P.2d 815 (Alaska 1968). . Cf. Sanders v. United States, 373 U.S. 1, 17, 83 S.Ct. 1068, 10 L.Ed.2d 148, 162 (1963). . 390 P.2d 433, 435 (Alaska 1964). . U.S.Const. amend. VIII provides, and Alaska Const. art. I, § 12, provides in part, that: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. . AS 11.15.010, as amended by Ch. 43 § 5 SLA 1964 and Ch. 68 § 4 SLA 1965, now provides that a person guilty of first degree murder shall be sentenced to prison for not less than 20 years to life. At all times relevant to Green v. State, AS 11.15.010 provided for a sentence of any term of years at hard labor. AS 11.15.030 now imposes, as it did then, a sentence of not less than 15 years for second degree murder. . 390 P.2d at 435. . Faulkner had pleaded guilty to seven counts of drawing cheeks with insufficient funds with intent to defraud in violation of AS 11.20.230, and to one count of issuing a check without funds or credit in violation of AS 11.20.210. He was sentenced to five years on each of the first seven counts and to one year on the last. The superior court ordered his sentence to run consecutively — for an aggregate of thirty-six years. . 445 P.2d at 818, 819. . Id. at 822-823. . Id. at 828. . Thompson argues that Faulkner v. State represents new law because Justice Dimond applies to a sentence the same test applied in Green v. State to a statute. Even if we were to accept Justice Dimond's opinion as law, we would hold the application of the test to such an extremely closely analogous situation to be insufficient excuse under Merrill v. State. Furthermore, we conclude that Faulkner v. State is not representative of such a change in attitude as to be tantamount to a change in law. . 407 F.2d 180 (2d Cir. 1969). . 125 U.S.App.D.C. 100, 867 F.2d 326 (1966). . Bail Reform Act of 1966, 18 U.S.C. § 3041, 3141-43, 3146-52, 3568. . People v. Jones, 489 P.2d 596 (Colo.1971). We are also not unmindful of those recent United States Supreme Court decisions in which imprisonment for indigency has been declared violative of the equal protection clause of the fourteenth amendment to the United States Constitution. Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971); Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970). While not directly in point, they are further evidence of the unfairness inherent in denying credit. . AS 11.05.040(a) provides: When a person is sentenced to imprisonment, his term of confinement begins from the day of his sentence. A person who is sentenced shall receive credit toward service of his sentence for time spent in custody pending trial or sentencing, or appeal, if that detention was in connection with the offense for which sentence was imposed. The time during which the person is voluntarily absent from the penitentiary, reformatory, jail, or from the custody of an officer after his sentence, shall not be estimated or counted as a part of the term for which he was sentenced. . Alaska R.Crim.P. 53 provides: These rules are designed to facilitate business and advance justice. They may be relaxed or dispensed with by the court in any case where it shall be manifest to the court that a strict adherence to them will work injustice.

10555984

Paul Edwin SNYDER, Appellant, v. STATE of Alaska, Appellee

Snyder v. State

1972-04-21

No. 1381

62

63

496 P.2d 62

496

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:31:12.080307+00:00

CAP

Before BONEY, C. J., and RABINO-WITZ, CONNOR, ERWIN and BOOCH-EVER, JJ.

Paul Edwin SNYDER, Appellant, v. STATE of Alaska, Appellee.

Paul Edwin SNYDER, Appellant, v. STATE of Alaska, Appellee. No. 1381. Supreme Court of Alaska. April 21, 1972. Herbert D. Soil, Public Defender, Meredith A. Wagstaff, Asst. Public Defender, Anchorage, for appellant. John E. Havelock, Atty. Gen., Seaborn J. Buckalew, Dist. Atty., Robert L. Eastaugh, Asst. Dist. Atty., Anchorage, for appellee. Before BONEY, C. J., and RABINO-WITZ, CONNOR, ERWIN and BOOCH-EVER, JJ.

835

5024

OPINION PER CURIAM. Appellant, Paul Snyder, appeals from an order revoking probation and remanding Snyder to custody to serve a sentence previously suspended. The essential facts are few. On June 13, 1969, Snyder entered a plea of guilty to the crime of armed robbery. He was adjudged guilty on November 5, 1969, and a suspended sentence with three years probation was imposed. A condition of Snyder's probation provided: (2) The defendant shall not violate any laws of this or any other state, or any municipal ordinance or the laws of the United States. • On November 18, 1969, Snyder was involved in an altercation with another individual. No criminal charges were brought by the state as a result of the incident. On the basis of the occurrence, a probation officer for the State of Alaska filed a petition to revoke probation for violation of condition (2), noted above, "by committing assault and battery." A hearing was held in the superior court and probation was revoked; the judge found: There isn't any question at all in my mind that Snyder committed an unprovoked assault and battery at that time and place. There isn't any question at all in my mind that — but that Mr. Snyder by committing the crime of Assault and Battery violated the terms of his probation. On appeal Snyder does not dispute the superior court's discretionary power to revoke probation after a hearing where the court finds a condition of probation has been violated. Nor does Snyder contend that he was denied adequate notice of the hearing and representation by counsel as required by AS 12.55.110. Hoffman v. State, 404 P.2d 644 (Alaska 1965). Snyder simply asserts that it is an abuse of the court's discretion to revoke ¡probation solely for the commission of a crime in the absence of formal charges and conviction. In asserting his contention Snyder recognizes that "many courts have held that conviction of a crime charged is not a prerequisite to finding a violation of probation and revoking that probation, [but] urges that this is a practice . . . which should not be adopted in this state." Snyder has, in fact, been unable to find authority from courts squarely adopting the rule he urges. We decline to adopt such a unique position. A review of the extensive authority adverse to Snyder's position is hardly necessary. We note simply that United States v. Feller, 17 Alaska 417, 424, 156 F.Supp. 107, 110 (1957), established the usual rule and adopted, for the Territory of Alaska, a position contrary to the one urged here holding: We are confronted with a further question herein. Where the grounds for the revocation of the sentence is based upon the violation of conditions of the probation which amount, in themselves, to a crime, is it necessary before a hearing on the revocation of the suspended sentence may be held that the probationer must be tried and convicted of the crime alleged ? Summary hearings upon the revocation of a suspended sentence have been upheld. What is required in such hearings is the exercise of conscientious judgment, and not arbitrary action; that the discretion of the Court has not been abused; and that the facts revealed at the hearing satisfy the Court that the modification or revocation of the sentence, or a part thereof, will serve the ends of justice. (Citations omitted) The trial judge who imposed the sentence has certain broad discretionary powers to revoke probation, and the probationer may not complain if he has been given ample opportunity to appear before the Court imposing the sentence, and he has been permitted to combat the accusation or charges against him and there has been no abuse of discretion on the part of the Court. (Citations omitted) . We adopt the standards announced in Feller. Affirmed. . AS 12.55.080 provides for the imposition of conditions of probation. . AS 12.55.085(b) provides for the revocation of probation for the violation of conditions imposed or engaging in criminal practices. . For authority adopting a similar position see United States ex rel. Lombardino v. Heyd, 318 F.Supp. 648, 652 (E.D.La.1970), aff'd per curiam, 438 F.2d 1027 (5th Cir. 1971), cert. denied 404 U.S. 880, 92 S.Ct. 195, 30 L.Ed.2d 160 (1971); Shaw v. Henderson, 430 F.2d 1116, 1117 n. 3 (5th Cir. 1970); United States ex rel. MacLaren v. Denno, 173 F.Supp. 237, 241 (S.D.N.Y.1959), aff'd per curiam, 272 F.2d 191 (2d Cir. 1959), cert. denied, 363 U.S. 814, 80 S.Ct. 1252, 4 L.Ed.2d 1155 (1960); Scott v. State, 238 Md. 265, 208 A.2d 575 (1965); Barker v. Ireland, 238 Or. 1, 392 P.2d 769, 771 (1964); State v. Baca, 458 P.2d 602 (N.M.App.1969).

10558021

Mary Elizabeth ROSS, Appellant, v. John Edward ROSS, Appellee

Ross v. Ross

1972-05-04

No. 1608

662

665

496 P.2d 662

496

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:31:12.080307+00:00

CAP

Before BONEY, C. J., and RABINO-WITZ, CONNOR and ERWIN, JJ.

Mary Elizabeth ROSS, Appellant, v. John Edward ROSS, Appellee.

Mary Elizabeth ROSS, Appellant, v. John Edward ROSS, Appellee. No. 1608. Supreme Court of Alaska. May 4, 1972. Allan A. Engstrom, Juneau, for appellant. Thomas P. Blanton, Juneau, for appellee. Before BONEY, C. J., and RABINO-WITZ, CONNOR and ERWIN, JJ.

1391

8469

PER CURIAM. Appellant Mary Elizabeth Ross appeals from a judgment of property division, rendered in conjunction with a decree of divorce, in which she was awarded none of the real property interests acquired during the marriage while being divested of a portion of the real property interests which she had brought into the marriage. Appellant contends that the trial court misapplied AS 09.55.210(6), as amended in 1968, to the extent that the court awarded appel-lee, John Edward Ross, property that Mary had acquired prior to their marriage, and that, in any event, the court's division of spousal real property is clearly unjust. The superior court ordered the following division of the parties' real property interests. Mary was awarded the house and lot which had long been her home. The court determined the property to have a value of $39,000. John was awarded all interests in real estate which he had acquired during the marriage and which have a total estimated value of $40,900. Finally, the court directed John to subdivide a parcel of land brought into the marriage by Mary, to sell the resulting lots, and to divide the proceeds equally between himself and Mary. The court's judgment thus resulted in an approximately even division of the parties' real property interests. We recently had occasion to construe the amended language of AS 09.55.-210(6) which draws a distinction between assets acquired prior to coverture and those subsequently acquired. In Vanover v. Vanover, 496 P.2d 644 (Alaska, 1972), we held that the amended language does not "circumscrib[e] in any significant manner the broad discretion which we have heretofore found vested in the trial court in regard to the property division matters." We further held: Where one spouse has made contributions to the marital community, whether of a pecuniary or of a more intangible nature, and where these contributions have benefited in any manner the separate property of the other spouse acquired before the marriage, we believe that the trial court may determine that all or a portion of that property should be included with the property acquired after marriage in effecting a just and equitable division of property. 496 P.2d at 648. The trial court's decision in this case that the balancing of the equities between the parties required invasion of Mary's separate property acquired prior to coverture and its actual property division will not be disturbed on appeal unless we are convinced that the record discloses a clear abuse of discretion. The findings of fact by the trial court are unchallenged. The court found that the parties were married in 1961 and that at the time of trial they had been continuously separated for two years. John was then 61 years of age and Mary 57. No children were born of the marriage. In further considering those factors which this court has stated are relevant in property division cases, the trial court found that John's earning ability is moderate while Mary's is minimal; that both John and Mary occupy the station in life of middle class citizens with average economic and cultural advantages; that John's health is relatively good while Mary suffers from several disabilities requiring regular medication; and that John is relatively secure financially while Mary is "almost completely without liquid assets or cash income," lacking even the resources to effect needed repairs to her home. Notwithstanding Mary's clear financial needs and the restrictive language of AS 09.55.210(6), the court below determined that "invasion of the property [Mary] acquired before marriage was indeed necessary in this case in order to balance inequities [sic] between the parties." The following findings by the court support its decision. First, the court found that John had contributed substantially to the worth of Mary's property. John brought into the marriage approximately $20,000 from the sale of real properties. Of this amount he spent about $1,600 in clearing title to Mary's property in her name and additionally contributed about $15,000 in materials and five years of sparetime labor to the improvement of Mary's home and lots. Moreover, the court found that John "will further contribute to the value of the property brought into the marriage by [Mary] because the disposition of [the undeveloped parcel] requires [John] to prepare it for subdivision purposes and sale of lots before the disposition of proceeds from the sale is to be made." Finally, the court found that the acquisition and appreciation of real property acquired during the marriage was attributable solely to John's efforts and labor. Based on the unchallenged findings of the court below, its decision to award John a portion of the property brought into the marriage by Mary was not an abuse of discretion, and its approximately even division of the parties' real property interests is not clearly unjust. The judgment is affirmed. BOOCHEVER, J., not participating. . AS 09.55.210(6), as amended in 1968, empowers the court to divide spousal property acquired only during coverture . [except] the court, in making the division, may invade the property of either spouse acquired before marriage when the balancing of the equities between the parties requires it . Prior to 1968 neither subsection (6) nor our cases construing that provision made sharp distinction between assets acquired prior to coverture and those acquired subsequently. See Merrill v. Merrill, 388 P.2d 259, 260 (Alaska 1964); Crume v. Crume, 378 P.2d 183, 186 (Alaska 1963). . We have consistently held that the trial court has broad discretion in dividing spousal property on divorce and that the trial court's determination will not be disturbed on appeal unless it is shown to be clearly unjust. Vanover v. Vanover, Op. No. 790, 496 P.2d 644 (Alaska 1972), and cases cited therein. . In 1963 John purchased a parcel of land over the objection of Mary, which he later subdivided into a number of lots. All but five lots were sold during the marriage. On one of the lots he erected the home in which he now lives. The court placed an equity value of $10,000 on the home and lot. Prior to the trial below, two lots were sold which have a balance of $4,900 remaining due on the sale prices. Another lot was sold after the trial, the sale price of $1,000 being placed in escrow for distribution by the court. A final lot, with a stipulated value of $1,000, remains unsold. In addition to the above, John purchased in 1966 a fraction of a lot on which he built a house. In 1969 John conveyed the house and lot to his son by installment contract, the payments under which have a stipulated value of $24,000. . The parties agree that John's efforts in this regard will substantially increase the net worth of the parcel from $21,000 to approximately $54,000. . Mary was also awarded a station wagon and miscellaneous personal property; John was awarded a pickup truck, the tools of his trade, and other personal property. . The list of factors to be considered by the trial court in resolving property division questions which we first set out in Merrill v. Merrill, 368 P.2d 546, 547-548 n. 4 (Alaska 1962), has recently been held to have continued validity. Vanover v. Vanover, 496 P.2d 644 (Alaska, 1972). . John's net income for the two years prior to trial averaged $7,000 per year from his small engine repair and saw filing business. Mary has earned virtually nothing since John and she separated in 1969, living primarily on support moneys ordered pendente lite. Although she is educated as a teacher, an arthritic condition and the lack of recent work experience have reduced her capacity to earn an adequate income. . The court continued for two years John's $200 monthly alimony obligation, estab- lislied pendente lite on November 17, 1969. The court found that the marriage was not of sufficient duration to justify an award of alimony for an indefinite period. . Mary argues that the court should have discounted John's contributions to the value of her property because he lived in her home for approximately eight years. However, during those years John provided the sole support and maintenance of the family's standard of living.

10558002

Vernon Percy HOWARD, Appellant, v. STATE of Alaska, Appellee

Howard v. State

1972-04-28

No. 1353

657

662

496 P.2d 657

496

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:31:12.080307+00:00

CAP

Before BONEY, C. J., and RABINO-WITZ, CONNOR and ERWIN, JJ.

Vernon Percy HOWARD, Appellant, v. STATE of Alaska, Appellee.

Vernon Percy HOWARD, Appellant, v. STATE of Alaska, Appellee. No. 1353. Supreme Court of Alaska. April 28, 1972. Herbert D. Soli, Public Defender, Michael L. Rubinstein, Asst. Public Defender, Anchorage, for appellant. John E. Havelock, Atty. Gen., Juneau, Seaborn J. Buckalew, Dist. Atty., Charles M. Merriner, Asst. Dist. Atty., Anchorage, for appellee. Before BONEY, C. J., and RABINO-WITZ, CONNOR and ERWIN, JJ.

2779

16585

OPINION RABINOWITZ, Justice. Vernon Percy Howard was tried and convicted under an indictment which charged him with selling heroin on February 2, 1970, to John Allen Brown in violation of AS 17.10.010. Brown was the principal prosecution witness. He testified that on February 2, 1970, he asked Howard for heroin, that Howard said he did not have any with him but might be able to obtain some, and that Howard told him to go to Howard's apartment. Brown further testified that he and his financee, Carmelia Link, went to Howard's apartment on February 2, 1970, to obtain heroin. There they were admitted by Carol Jackson, a woman who was living on the premises. Howard arrived a short time later. After his arrival, Howard began capping a substance into small gelatin capsules. Brown testified that to the best of his knowledge he thought the substance was heroin. Brown stated he was offered some of the substance by Howard, that he took it, and then asked Howard if he could use the bathroom. According to Brown, he then went to the bathroom, took the substance, cooked it up on a spoon, filtered it through a cigarette filter, and then with an insulin syringe injected the substance into his veins. After he had injected the substance, Brown said he experienced relief from the symptoms of his craving for an opiate. Car-melia Link's testimony on the events of the day paralleled that given by Brown. Link also testified that she had previously observed fixes and that after Brown had injected the substance, he became drowsy, slurred his words, and was no longer nervous. Regarding the nature of the substance which Brown stated he injected into his veins, Brown testified that he had used heroin since November 1968 and that he had purchased heroin in Anchorage and Seattle. Brown said that he had acquired heroin from Howard in the past, having first obtained heroin from Howard the previous summer. Brown claimed that he was addicted at the time and that he had experienced well over 100 injections of heroin. As to the occasion in question, Brown related that he had experienced the symptoms of craving for an opiate before, and that the injection of the substance that Howard had given him relieved these symptoms. On cross-examination, Brown admitted he was not positive as to the nature of the substance he received from Howard. On redirect, Brown reiterated his testimony that injection of the substance did in fact relieve his craving for an opiate and that the 10 buys of heroin he had made in Seattle had produced the same effect. Over objection, Brown testified that prior to February 2, 1970, he had made over 100 buys of heroin from Howard. He further stated that he received relief from his craving for opiates when he injected the substances which he had purchased from Howard on these previous occasions. Dr. J. Ray Langdon testified that he had treated Brown the previous fall for addiction to a narcotic drug. In the witness's opinion, an addict who injected himself with a substance and received relief from withdrawal distress, or the craving of an opiate, would know that the substance he injected was an opiate based drug, but that opiates other than heroin would give similar relief. Dr. Charles D. King, a medical technologist, gave testimony that he had examined urine specimens taken from Brown during the period he was under treatment by Dr. Langdon. According to Dr. King, he detected opiates during two of approximately eight tests. Howard offered two witnesses in his defense. Stephen Elben testified that he had given Brown a capsule of heroin on the afternoon of February 2, 1970. Carol Jackson testified that at about 6 or 7 p. m., on February 2, 1970, Brown and Link had come to the apartment where she and Howard were living. Jackson stated that Howard never gave Brown any capsules, and that no capsules were present in the apartment. The witness further said that she observed Brown and Link in Howard's bathroom and saw Brown doing something to Link's arm with a needle. Jackson said that this scared her and that she then requested Howard to ask Brown and Link to leave the apartment. A jury found Howard guilty; he has appealed his conviction. In this appeal several grounds are asserted as a basis for reversal. In this appeal we must determine whether the fact that Brown was an admitted heroin addict requires that his testimony be corroborated. Howard baldly asserts "[tjhat many opiate addicts are habitual prevaricators as well as cynical opportunists is well-known to those who come into contact with them . . . ." In Fields v. State, 487 P.2d 831 (Alaska 1971), an opinion which was published after the supplemental briefs had been filed in this case, we rejected a contention similar to the one advanced by Howard in the case at bar. Fields dealt with the question of impeachment of a witness by introduction of evidence of the witness' addiction to heroin. There we said: There may, in fact, be justification for introducing evidence of heroin use and addiction to impeach a witness where the evidence pertains either to the time of the occurrences which the witness has observed or to the time of trial. In such instances, use of heroin could potentially affect the capacity of the witness to accurately observe or relate details of the events which he has seen. But we cannot accept a rule under which persons who use or are addicted to heroin are considered necessarily and inherently unreliable as witnesses. The rule thus stated is based upon a 'common knowledge' which is scientifically unsound and which has been rejected by the more penetrating judicial opinions on the subject. We therefore hold that evidence of narcotics use or addiction will not be admissible where its only purpose would be to impeach a witness by showing that he is, by sole virtue of his addiction, inherently unreliable. Since Fields rejects Howard's basic premise regarding the testimonial unreliability of addicts, we believe that Fields is dis-positive of the issue here for we cannot perceive any significant distinction between application of the asserted premise to impeachment as opposed to corroboration problems. In light of Fields, we think it would be inconsistent now to enunciate a rule requiring that an addict's testimony be corroborated. Our holding that an addict's testimony need not be corroborated is in accord with the thinking of other courts. Commonwealth v. Harris, 186 Pa.Super. 59, 140 A.2d 344 (1958); Commonwealth v. Aikens, 179 Pa.Super. 501, 118 A.2d 205 (1955); Tobar v. State, 32 Wis.2d 398, 145 N.W.2d 782 (1966), cert. denied, 390 U.S. 960, 88 S.Ct. 1059, 19 L.Ed.2d 1157 (1968); cf. United States v. Griffin, 382 F.2d 823 (6th Cir. 1967); People v. Romero, 54 Ill.App.2d 184, 203 N.E.2d 635 (1964). We thus conclude that the testimony of an admitted addict need not be corroborated. Howard also contends that Brown's testimony was required to be corroborated because Brown was an accomplice to the sale. Prior decisions of this court established the rule that one is not an accomplice unless he could be charged with the same crime for which the defendant is prosecuted. See Taylor v. State, 391 P.2d 950 (Alaska 1964); Daniels v. State, 383 P.2d 323 (Alaska 1963), cert. denied, 375 U.S. 979, 84 S.Ct. 502, 11 L.Ed.2d 424 (1964); Mahle v. State, 371 P.2d 21 (Alaska 1962). A purchaser of illegally sold narcotics cannot, then, be an accomplice to the sale. Here we do not have a situation where Brown acted as Howard's agent in the sale of an illegal narcotic. McKay v. State, 489 P.2d 145, 151-152 (Alaska 1971). We therefore hold that his testimony need not be corroborated. We next turn to the question of whether Howard's conviction can be sustained absent physical corroboration that the substance sold to Brown was in fact heroin. Howard recognizes in his brief that the weight of authority is against him and that the corpus delicti may be established by circumstantial evidence. E. g., United States v. Nuccio, 373 F.2d 168 (2d Cir.), cert. denied, 387 U.S. 906, 87 S.Ct. 1688, 18 L.Ed.2d 623 (1967). Howard urges that an exception be carved out for those situations where there is "substantial doubt or conflicting evidence" and that in such circumstances the use of circumstantial evidence alone to establish the corpus delicti is inappropriate. We decline to adopt Howard's suggested exception for to do so would be tantamount to abrogation of the rule that the corpus delicti of a drug offense may be established by circumstantial evidence. There is substantial authority that the narcotic quality of a substance may be shown by the testimony of an addict who used it. United States v. Nichols, 322 F.2d 681, 684 (7th Cir. 1963), cert. denied, 375 U.S. 967, 84 S.Ct. 485, 11 L.Ed.2d 415 (1964); United States v. Agueci, 310 F.2d 817, 828 (2d Cir. 1962), cert. denied, 372 U.S. 959, 83 S.Ct. 1016, 10 L.Ed.2d 12 (1963); People v. Robinson, 14 Ill.2d 325, 153 N.E.2d 65 (1958); Commonwealth v. Harris, 186 Pa.Super. 59, 140 A.2d 344 (1958); cf. People v. Galfund, 267 Cal.App.2d 317, 72 Cal.Rptr. 917 (1968). We therefore hold that it was not necessary that the state adduce physical corroboration that the substance sold to Brown was in fact heroin. Our treatment and resolution of these first three issues leads us to the broader question of whether the state's evidence was sufficient to establish that Howard sold heroin to Brown in violation of AS 17.10.010. Our review of the record shows that the prosecution's evidence was sufficient to warrant conviction. In Beavers v. State, 492 P.2d 88, 97 (Alaska 1971), we said: On appeal from denial of a motion for acquittal, this court "must view the evidence and the inferences to be drawn therefrom in a light most favorable to the state.'' (citation omitted) Employing this test in our review of the record in this case, we believe "that fair minded men in the exercise of reasonable judgment could differ on the question of whether guilt has been established beyond a reasonable doubt," and that therefore the issue of Howard's guilt was properly submitted to the jury. We believe that the state's evidence, as detailed above, was sufficient to support Howard's conviction. This brings us to consideration of the final specification of error in this appeal. Howard contends that the trial court committed reversible error in permitting the prosecution to elicit testimony from Brown that he had made over 100 buys of a substance he believed to be heroin from Howard previous to the transaction which took place at Howard's apartment on February 2, 1970. Our decision in Watson v. State, 387 P.2d 289, 293 (Alaska 1963), governs the disposition of this issue. In Watson, we said: Evidence that reveals the commission of an offense other than that for which the defendant is being tried is inadmissible if it is relevant merely to show criminal disposition. But such evidence is admissible, even when it shows the defendant's prior trouble with the law, when it is relevant to prove some other material fact, (footnote omitted) If the evidence is relevant under the Watson test, then it is necessary to determine if the probative value of such evidence outweighs its prejudicial effect. In the factual context of the case at bar, we think that Brown's testimony that he made over 100 buys of a substance which he believed to be heroin from Howard on occasions prior to February 2, 1970, was clearly relevant. As the evidence outlined at the outset shows, the prosecution was attempting to prove circumstantially that the drug that Brown said was transferred to him by Howard on February 2, 1970, was heroin. When the evidence of previous buys from Howard is considered, together with Brown's testimony as to his previous reactions to the substances previously purchased from Howard, it becomes less likely that Brown was mistaken about the nature of the substance he injected on February 2, 1970. The question of whether the probative value of the evidence that Brown had made over 100 previous buys from Howard outweighs its prejudicial impact presents a close question. Evidence that Howard had previously dealt in drugs while relevant in the context of this case, creates a danger of jury misuse of such evidence. However, much of the prejudicial effect of the testimony by Brown that he made over 100 buys from Howard was weakened by the fact that Brown had already been permitted to testify without objection that Howard was one of the persons from whom he had previously purchased heroin in Alaska. Thus, we conclude that the trial court did not commit reversible error in allowing Brown's testimony as to the previous buys of what he believed to be heroin from Howard. The jury already had evidence before it that Brown had made previous buys of what he believed to be heroin from Howard. The only additional fact which the questioned testimony placed before the jury was the number of transactions Brown had with Howard. In these circumstances we cannot say that the prejudicial effect of this evidence outweighed its probative value. Affirmed. BOOCHEVER, J., not participating. . Brown gave testimony that he had dealt with Howard in the past and at those times heroin, smack and other slang terms were used in their conversations regarding heroin. Bown was then asked how many times he had dealt with Howard, with regard to what lie, Brown, believed to be heroin. Brown's estimate, in reply, was over 100 times. Brown also related that Howard never suggested to him that the substance he was selling was not heroin. . Originally Howard's sole specification of error related to the trial court's admission into evidence of Brown's testimony that he had made over 100 previous buys of heroin from Howard. Subsequent to oral argument, we requested supplemental briefing on several additional questions. . 487 P.2d 831, 844-845 (Alaska 1971) (citations omitted) (footnotes omitted). . AS 12.45.020 provides: A conviction shall not be lmd on the testimony of an accomplice unless it is corroborated by other evidence which tends to connect the defendant with the commission of the crime; and the corroboration is not sufficient if it merely shows the commission of the crime or the circumstances of the commission. .II F. Wharton, Criminal Evidence § 456, at 240 (12th ed. 1955). . Bush v. State, 397 P.2d 616, 618 (Alaska 1964). . As to the question of sufficiency of the evidence, in Beck v. State, 408 P.2d 996, 997 (Alaska 1965), we said: The question . 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) . Watson has been followed in several later decisions. McKee v. State, 488 P.2d 1039 (Alaska 1971); Thessen v. State, 454 P.2d 341, 353 (Alaska 1969), cert. denied, 396 U.S. 1029, 90 S.Ct. 588, 24 L.Ed.2d 525 (1970); Nicholi v. State, 451 P.2d 351, 357-359 (Alaska 1969) (Rabinowitz, J., dissenting); Gafford v. State, 440 P.2d 405, 407-408 (Alaska 1968), cert. denied, 393 U.S. 1120, 89 S.Ct. 996, 22 L.Ed.2d 125 (1969); Kugzruk v. State, 436 P.2d 962, 966-968 (Alaska 1968). See C. McCormick, Handbook of the Law of Evidence § 157 (1954); Model Code of Evidence rule 311 (1942); Uniform Rules of Evidence rule 55 (1965). .Nicholi v. State, 451 P.2d 351, 359 (Alaska 1968) (Rabinowitz, J., dissenting); 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); Kugzruk v. State, 436 P.2d 962, 967 (Alaska 1968); Harper v. United States, 99 U.S.App.D.C. 324, 239 F.2d 945, 946 (1956); C. McCormick, Handbook of the Law of Evidence § 157, at 332-33 (1954). . C. McCormick, Handbook of the Law of Evidence § 157, at 332-33 (1954); State v. Ellis, 243 Or. 190, 412 P.2d 518 (1966). . Cf. Tarnef v. State, 492 P.2d 109, 117 (Alaska 1971). In Tarnef we were concerned with the possibility of an abuse of the trial court's discretion in the denial of a motion for mistrial. The motion was based on the admission of allegedly prejudicial testimony of prior drug sales.

10556243

Terry J. MILLER et al., Appellants, v. Fred M. WILKES, Appellee

Miller v. Wilkes

1972-04-28

No. 1559

176

178

496 P.2d 176

496

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:31:12.080307+00:00

CAP

Before BONEY, C. J., and RABINO-WITZ, CONNOR and ERWIN, JJ.

Terry J. MILLER et al., Appellants, v. Fred M. WILKES, Appellee.

Terry J. MILLER et al., Appellants, v. Fred M. WILKES, Appellee. No. 1559. Supreme Court of Alaska. April 28, 1972. James H. Lack, Anchorage, for appellants. Warren W. Matthews, Jr., Matthews, Dunn & Baily, Anchorage,' for appellee. Before BONEY, C. J., and RABINO-WITZ, CONNOR and ERWIN, JJ.

1380

8246

OPINION BONEY, Chief Justice. Plaintiff-appellant Miller appeals from an order granting defendant-appellee Wilkes $500.00 in attorney fees. Miller filed suit against Wilkes on August 11, 1970, alleging an oral agreement for the sale of an interest in certain real property. Miller sought and obtained, on August 12, 1970, a temporary order restraining Wilkes from conveying his interest in the property in question. Six days later, that order was dissolved. Miller also moved for a preliminary injunction. Hearings were scheduled, but frequently continued, and never held. Wilkes filed a memorandum in opposition to the preliminary injunction and an affidavit. On June 28, 1971, Miller filed a voluntary dismissal of his suit. Wilkes immediately moved for attorney fees and his motion was granted. Miller moved for reconsideration, but on July 28, 1971, an order was entered awarding Wilkes $500.00 in attorney fees. The sole issue raised on this appeal is the propriety of awarding attorney fees in the circumstances of this case. Alaska Rule of Civil Procedure 41(a) (1) provides in pertinent part that: [A]n action may be dismissed by the plaintiff without order of court [a] by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or [b] by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of this state, or of any other state, or in any court of the United States, based on or including the same claim. Miller argues that the effect of a timely filing of a notice of dismissal pursuant to Rule 41(a) (1) [a] is to deprive the court of jurisdiction to take any further action on the matter. Miller concludes that the court can thereafter enter no judgment either for or against a plaintiff. While there is authority for this view, several federal courts have specifically rejected the notion that only an answer or a summary judgment can terminate the plaintiff's right to dismiss by notice. The primary purpose of Rule 41 (a) (1) is to "allow the plaintiff to dismiss as of right before issue has been joined, . . . . " Where issue has been joined by means other than those specified in Rule 41(a) (1), that purpose dictates that the plaintiff's right to dismiss by notice be nonetheless terminated. Not every action by the defendant cuts off the plaintiff's right; only those actions which would require the court to consider the merits of the controversy or which involve consider able expense and effort on the part of defendant suffice. While no answer or motion for summary judgment was ever filed, Wilkes did file a "Memorandum in Opposition to Amended Motion for Preliminary Injunction or Alternative Relief" and an "Affidavit of Fred M. Wilkes." The affidavit denies several of the factual allegations of Miller. The memorandum raises four defenses: one based on the Statute of Frauds, two relating to indispensable parties, and one procedural. In many respects then the memorandum and affidavit taken together resemble an answer. A temporary restraining order was granted but subsequently dissolved. Miller moved for a preliminary injunction. While dates for a hearing were set several times, no hearing was ever held. The fact that no hearing was ever held is, however, irrelevant. A motion for a preliminary injunction puts the merits of the controversy in issue: in considering the motion the trial court would have to determine the likelihood of success. The memorandum and affidavit together serve as an "answer" to the motion for a preliminary injunction. As such, they are tantamount to an "answer" for purposes of Rule 41(a) (1) and should terminate the plaintiff's right to dismiss the action by notice. The trial court could therefore properly have considered the notice as a motion for dismissal and was within its powers in awarding costs. The trial court, in awarding costs and attorney fees, was well within its discretion under Rule 82(a) (1), which provides in part that: 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. The judgment is therefore affirmed.' BOOCHEVER, J., not participating. . 5 J. Moore, Federal Practice § 41.02 [2], at 1021-1022 (2d ed. 1971); 9 C. Wright and A. Miller, Federal Practice and Procedure § 2366, at 176-177 (1971); Miller v. Reddin, 422 F.2d 1264 (9th Cir. 1970); Hyde Constr. Co. v. Koehring Co., 388 F.2d 501 (10th Cir. 1968); American Cyanamid Co. v. McGhee, 317 F.2d 295 (5th Cir. 1963); Bryan v. Smith, 174 F.2d 212 (7th Cir. 1949). But see White v. Thompson, 80 F.Supp. 411 (N.D.Ill.1948). . 5 .T. Moore § 41.02 [3], at 1028 (2d ed. 1971) (emphasis in original). . Harvey Aluminum, Inc. v. American Cyanamid Co., 203 F.2d 105 (2d Cir.), cert. denied, 345 U.S. 964, 73 S.Ct. 949, 97 L.Ed. 1383 (1953). Butler v. Denton, 150 F.2d 687 (10th Cir. 1945); Love v. Silas Mason Co., 66 F.Supp. 753 (W.D.La.1946). . With one possible exception for motions accompanied by affidavits regarding matter outside the pleadings, Tele-Views News Co. v. S.R.B. TV Publishing Co., 28 F.R.D. 303 (E.D.Pa.1961), motions to dismiss do not terminate the plaintiffs right. Compare Miller v. Reddin, 422 F.2d 1264 (9th Cir. 1970); Pennsylvania R. Co. v. Daoust Constr. Co., 193 F.2d 659 (7th Cir. 1952); Terry v. Pearlman, 42 F.R.D. 335 (D.C.Mass.1967); and Sachs v. Italia Societa Anonima Di Navigazione, 30 F. Supp. 442 (S.D.N.Y.1940): with Robertson v. Limestone Mfg. Co., 20 F.R.D. 365 (W.D.S.C.1957). Neither does a motion for a stay; Wilson & Co. v. Fremont Cake & Meal Co., 83 F.Supp. 900 (D.Neb.1949); Rife v. McElwee-Courbis Constr. Co., 16 F.R.D. 11 (M.D.Pa.1954); nor does a motion for a change of venue under 28 U.S.C. § 1404(a); Littman v. Bache & Co., 252 F.2d 479 (2d Cir. 1958); Toulmin v. Industrial Metal Proteetives, Inc., 135 F.Supp. 925 (D.Del.1955); see also White v. Thompson, 80 F.Supp. 411 (N.D.Ill.1948). . We also note that where the court concludes that adherence to Rule 41(a) (1) would work an injustice, that rule may be relaxed pursuant to Rule 94, which provides that: These rules are designed to facilitate business and advance justice. They may be relaxed or dispensed with by the court in any case where it shall be manifest to the court that a strict adherence to them will work injustice. . Cf. White v. Thompson, 80 F.Supp. 411 (N.D.Ill.1948). . Rule 41(d), which Miller argues contemplates that costs will not have been awarded in a prior action, provides: If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order. We need not discuss this argument, for we consider it unfounded. See 6 J. Moore, Federal Practice § 41.16, at 1193 (1971). Furthermore, we need not consider Miller's argument that there was no prevailing party for purposes of Rule 82 to whom costs and attorney fees could be awarded because he had voluntarily dismissed without prejudice. In our recent decision in Hart v. Wolff, 489 P.2d 114, 119 (Alaska 1971) (footnote omitted), we disposed of a similar argument as follows : We hold that even though there had not been a final determination on the merits in this case, [the defendant] clearly was the prevailing party and as such was entitled to attorney's fees as costs. Accord, Nordin Const. Co. v. City of Nome, 489 P.2d 456, 474 (Alaska 1971).

10428776

Joseph E. VOGLER, and Alaskan Independence Party, Appellants, v. Terry MILLER, Lieutenant Governor of the State of Alaska, Appellee

Vogler v. Miller

1982-09-16

No. 6959

1

7

651 P.2d 1

651

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:30:38.512786+00:00

CAP

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

Joseph E. VOGLER, and Alaskan Independence Party, Appellants, v. Terry MILLER, Lieutenant Governor of the State of Alaska, Appellee.

Joseph E. VOGLER, and Alaskan Independence Party, Appellants, v. Terry MILLER, Lieutenant Governor of the State of Alaska, Appellee. No. 6959. Supreme Court of Alaska. Sept. 16, 1982. Joseph W. Sheehan, Fairbanks, for appellants. David T. LeBlond, Asst. Atty. Gen., Anchorage, Wilson L. Condon, Atty. Gen., Juneau, for appellee. Before BURKE, C. J., and RABINOW-ITZ, CONNOR, MATTHEWS and COMPTON, JJ.

3611

21805

• OPINION MATTHEWS, Justice. In this case the gubernatorial candidate of a small political party challenges several statutes that restrict access to the ballot on the grounds that they contravene the free speech and equal protection provisions of the Alaska Constitution. FACTS AND PROCEEDINGS Joseph Vogler, the gubernatorial candidate of the Alaskan Independence Party (hereinafter AIP), and the AIP itself, sought declaratory and injunctive relief from a decision by the Lieutenant Governor's Office, Division of Elections, to deny Vogler's application for a place on the ballot for the August 1982 primary election and the November, 1982 general election. The AIP has placed candidates on the ballot in the past. It was formed in 1973, and it successfully placed candidates on the ballot for both the 1974 and 1978 gubernatorial elections. However, at the time of those elections, access to the ballot was more open. Under the old statutes, it was possible for independents and candidates of small parties to secure a place on the ballot by submitting petitions carrying the signatures of 1000 registered voters. In 1980, the legislature changed the signature requirement found in AS 15.25.160 from 1000 signatures to 3% of the vote cast at the last election. For the November 1982 election, the 3% requirement calls for 4,880 signatures, nearly a five-fold increase over the old requirement. The filing deadline for such a petition remained June 1, nearly 3 months before the primary and 5 months before the general election. AS 15.25.150. The only other route open to a would-be candidate, aside from a write-in campaign, is to belong to a "political party," which is defined in AS 15.60.010(20) as a political group which polled 10% or more of the vote at the preceding gubernatorial election. AS 15.25.030 provides that a member of such a "political party" need only file a declaration of candidacy and pay a $100.00 fee in order to appear on the primary ballot. Although the AIP had never polled more than 4.8% of the vote, Vogler submitted a declaration of candidacy along with the fee under this second route because he thought that he would be unable to procure the necessary signatures to proceed by petition. The Lieutenant Governor's Office, Division of Elections, rejected his application, and Vogler filed suit for declaratory and injunc-tive relief. The suit challenged both the definition of a political party as a group which had polled 10% and the new 3% petition requirement. After a trial, the superi- or court rejected Vogler's arguments that the 10% definitional requirement and the 3% petition requirement were invalid under the free speech and equal protection clauses of the Alaska Constitution. The court did, however, overturn a requirement that individuals signing a nominating petition declare their intention to vote for that candidate. AS 15.60.010(20). The state has not appealed that ruling. I. STANDARD OF REVIEW Vogler's challenges to the ballot restrictions are based upon the free speech provision of the Alaska Constitution, Article I, section 5, and the equal protection provi sion, Article I, section l. Vogler has not raised federal constitutional challenges, presumably because the United States Supreme Court has upheld statutes more restrictive than those he challenges here. American Party of Texas v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974); Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971). Unless the provisions of the Alaska Constitution offer broader protection than their federal counterparts, the statutes must stand. Our previous decisions have found the free speech guarantee of Article I, Section 5 to be at least as broad as that of the First Amendment of the United States Constitution. Mickens v. City of Kodiak, 640 P.2d 818, 820 (Alaska 1982); Messerli v. State, 626 P.2d 81, 83 (Alaska 1980). The equal protection provision of Article I, section 1 has in some instances been interpreted more broadly than its federal counterpart. Williams v. Zobel, 619 P.2d 422, 427 (Alaska 1980); CFEC v. Apokedak, 606 P.2d 1255 (Alaska 1980); State v. Erickson, 574 P.2d 1, 11 (Alaska 1978). Since there are no Alaskan cases on ballot access much of our analysis deals with cases applying the federal standard. However, we are not necessarily limited by those precedents in interpreting Alaska's constitution. Breese v. Smith, 501 P.2d 159, 167 (Alaska 1972). We first examine the nature of the rights involved. Restrictions on ballot access impinge not only on the rights of the potential candidates, but on those of the voters as well. As Justice Black stated in Williams v. Rhodes, laws restricting ballot access place burdens on two different, although overlapping, kinds of rights — the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24, 31 (1968). Both the right to vote and the right to associate freely in pursuit of political beliefs are fundamental. No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights even the most basic, are illusory if the right to vote is undermined. Williams v. Rhodes, 393 U.S. at 31, 89 S.Ct. at 10, 21 L.Ed.2d at 31, quoting Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 535, 11 L.Ed.2d 481, 491 (1964). As Justice Black noted in Williams: Competition in ideas and governmental policies is at the core of our electoral process and of the First Amendment freedoms. New parties struggling for their place must have the time and opportunity to organize in order to meet reasonable requirements for ballot position, just as the old parties have had in the past. 393 U.S. at 32, 89 S.Ct. at 11, 21 L.Ed.2d at 32. It is well accepted that in ballot access cases, the state must show a compelling interest in order to justify infringements of these rights. See, e.g., Storer v. Brown, 415 U.S. 724, 729, 94 S.Ct. 1274, 1278, 39 L.Ed.2d 714, 723 (1974); American Party of Texas v. White, 415 U.S. 767, 780, 94 S.Ct. 1296, 1305, 39 L.Ed.2d 744, 760 (1974); Williams v. Rhodes, 393 U.S. at 31, 89 S.Ct. at 10, 21 L.Ed.2d at 32. That standard is also appropriate under Article I, Section 5 of the Alaska Constitution. Messerli v. State, 626 P.2d 81, 84 (Alaska 1980). See Mickens v. City of Kodiak, 640 P.2d 818, 821 (Alaska 1982). It is the state's burden to prove that such a compelling interest exists. Mickens v. City of Kodiak, 640 P.2d at 822; Messerli v. State, 626 P.2d at 84. II. AS 15.25.160 — THE 3% REQUIREMENT AS 15.25.160 provides that: Required number of signatures for statewide office. Petitions for the nomination of candidates for the office of governor, lieutenant governor, United States senator and United States representative shall be signed by qualified voters of the state equal in number to at least three percent of the number of votes cast in the preceding general election. Candidates for the office of governor and lieutenant governor shall file jointly. The state has asserted a number of justifications for the amendment to AS 15.25.-160. The primary justification claimed by the state at oral argument was the desire to make the petition requirements for various public offices uniform. The state points out that at the same time that AS 15.25.160 was amended, the requirements for access to Congressional and State Legislative ballots were amended as well. The state introduced evidence at trial that the legislature's intent was to make all access requirements uniform with those for the Presidential ballot, which already stood at 3%. The state also introduced evidence that the legislature switched to a percentage from a flat figure because it did not wish to amend the statute every few years as the state's population increased. ' Finally, the state claims that the Legislature intended to eliminate any confusion among voters that might result from having a large number of candidates present on the ballot. The state concedes, however, that no such confusion existed in past Alaskan elections. Such a legislative concern, if it existed, was prospective. These are all legitimate concerns. The federal cases uniformly accept a state interest in restricting the ballot to those able to muster a "significant modicum of support." Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 1976, 29 L.Ed.2d 554, 562 (1971); Lubin v. Panish, 415 U.S. 709, 718, 94 S.Ct. 1315, 1321, 39 L.Ed.2d 702, 710 (1974); American Party of Texas v. White, 415 U.S. 767, 789, 94 S.Ct. 1296, 1310, 39 L.Ed.2d 744, 764 (1974). We agree with that view. Expressing a required showing of support in terms of a proportion of the state's voting population is also acceptable, and in fact, will often better reflect a level of support than will a flat figure. Finally, as noted by the Supreme Court: That "laundry list" ballots discourage voter participation and confuse and frustrate those who do participate is too obvious to call for extended discussion. Lubin v. Panish, 415 U.S. at 715, 94 S.Ct. at 1319, 39 L.Ed.2d at 708. On the other side of the balance sheet are interests fundamental to a democratic system. As Justice Black stated in Williams v. Rhodes, The right to form a party for the advancement of political goals means little if a party can be kept off the election ballot and thus denied an equal opportunity to win votes. So also, the right to vote is heavily burdened if that vote may be cast only for one of two parties at a time when other parties are clamoring for a place on the ballot. 393 U.S. at 31, 89 S.Ct. at 10, 21 L.Ed.2d at 31. The range of political views in our society cannot be compressed into the platforms of only two parties. Even where minor parties do not actually place candidates in office, their presence on the ballot provides disaffected voters with a means of protesting the status quo or of embracing unorthodox ideas. Developments in the Law-Elections, 88 Harv.L.Rev. 1111, 1123 (1975). The ballot box is our established means of effecting change, and excessive restrictions on it may redirect the pressure for change into other, less legitimate channels. While the 3% requirement imposes no direct limitation on the right to present a political philosophy or the right to associate and to solicit new members, if the state has effectively eliminated a political party's access to the ballot, it has deprived the party of much of the substance of the values meant to be insured by the rights of free speech and association. See Williams v. Rhodes, 393 U.S. at 41, 89 S.Ct. at 15, 21 L.Ed.2d at 37 (Harlan, J., concurring). As we have noted, where such fundamental rights as freedom of speech and association are involved, only compelling government interests will justify their encroachment. Mickens v. City of Kodiak, 640 P.2d 818 (Alaska 1982); Messerli v. State, 626 P.2d 81 (Alaska 1981). An essential aspect of this test is an inquiry into whether less restrictive alternatives will adequately protect those interests. L. Tribe, American Constitutional Law § 13-20, at 781 (1978). That is, only a regulation which impinges on the right to speak and associate to the least degree possible consistent with the achievement of the state's legitimate goals will pass constitutional muster. Mickens v. City of Kodiak, 640 P.2d 818, 822 (Alaska 1982). Prior to 1980, Alaska had a petition requirement that the state concedes was adequate to prevent frivolous candidacies and to ensure that all candidates reaching the general ballot had "a significant modicum of support." The 1980 amendments were made to achieve uniform access barriers to the ballot and to eliminate the need for future amendments by adopting a percentage requirement. So far as we are aware both of these goals could have been achieved equally well by a signature requirement of, for example, 1% of voters as by the 3% requirement which was enacted. By enacting a 3% requirement instead, the state increased the restrictions on ballot access. The state has not demonstrated that its first two goals justify such an increase. The state also claims, however, that it was concerned about voter confusion caused by the appearance of large numbers of candidates on the ballot. Yet the state failed to make any showing whatsoever that voter confusion has existed at any time. In the absence of such a showing, the state cannot contend that its action was correcting any abuse. The 3% figure is not the least burdensome means of achieving the state's goals. Our conclusion finds support in McLain v. Meier, 637 F.2d 1159 (8th Cir. 1980), which involved a remarkably similar statute. The signature requirement there amounted to 3.3%. The court found that that barrier was excessive, noting the evidence in Williams v. Rhodes, 393 U.S. at 47 n.10, 89 S.Ct. at 19 n.10, 21 L.Ed.2d at 41 n.10, that 42 states have signature requirements of 1% or less. We now turn to the question of relief. We have found that AS 15.25.160 set up an impermissible bar to the ballot. There exists no constitutional method by which a candidate who has minimally sufficient support may gain ballot access. Under such circumstances a court may properly look to available evidence or to matters subject to judicial notice to determine whether there is reason to assume the requisite community support. McCarthy v. Briscoe, 429 U.S. 1317, 1323, 97 S.Ct. 10, 13, 50 L.Ed.2d 49, 54 (1976, per Powell, J. as Circuit Justice). There is justification for such an assumption on the record before us. The AIP with Yogler as its gubernatorial candidate polled 4.8% of the total vote in 1974; in 1978, with Yogler as its candidate for Lieutenant Governor, it polled 1.9% of the vote. The AIP remains an active organization, has periodic meetings, and publishes a newsletter. It held a party convention in November 1981 at which Vogler was elected party chairman. According to Vo-gler, the party has 3,000-4,000 members. For these reasons, we order the appellee to place the name of Joseph E. Vogler on the November 1982 general election ballot as the candidate of the Alaskan Independent Party for Governor of the State of Alaska. Since candidates for governor must run jointly with a lieutenant governor candidate, the appellee is also directed to place the name of the nominee of the Alaskan Independent Party for lieutenant governor on the ballot, as selected pursuant to AS 15.25.130. The selection shall take place forthwith. The remaining issue in this case is whether the definition of a political party contained in AS 15.60.010(6), upon which eligibility of the party to participate in a primary depends, AS 15.25.030, is constitutional. This opinion has been issued on an expedited basis in view of the need to print ballots for the general election. Since we have ordered affirmative relief based on the invalidity of AS 15.25.160, we will remove the present issue from the expedited calendar. An opinion concerning it will follow in due course. REVERSED. CONNOR, J., and BURKE, C. J., dissenting. .According to Vogler, the actual number of signatures now required is closer to 10,000 since there is always a certain number of invalid signatures among those collected. Vogler submitted evidence estimating the cost to obtain signatures at $1.00 per signature. In 1974, the AIP candidate polled 4,770 votes, representing 4.8% of the votes cast. In 1978, the figure was 2,463 which was 1.9% of the total vote. . While the time available for a petition drive under AS 15.25.160 had not yet expired at the time of the superior court's ruling, Vogler chose not to pursue this course. . Alaska Const. Art. I, § 5 provides that: Freedom of Speech. Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right. . Alaska ConstArt. I, § 1 provides that: Inherent Rights. This constitution is dedicated to the principles that all persons have a natural right to life, liberty, the pursuit of happiness, and the enjoyment of the rewards of their own industry; that all persons are equal and entitled to equal rights, opportunities, and protection under the law; and that all persons have corresponding obligations to the people and to the State. . The only legislative history available for the amendments is a report submitted to the Legislature by the Election Review Committee appointed by Lieutenant Governor Miller following the 1978 election. The relevant sections of that report are reproduced at 1 Senate Journal Supp. 8, pp. 19-20 (1980). The state introduced that report and the testimony of Patty Ann Polley, the Director of the Division of Elections, to establish the legislative goals underlying the amendments. . Except for AS 15.30.025, all of the following statutes were amended to require signatures equal to 3% of the votes cast in the preceding general election: AS 15.30.025 (President of the United States) no change. AS 15.40.100 (United States Senate) previously required 1000 signatures. AS 15.40.190 (United States House of Representatives) previously required 1000 signatures. AS 15.40.440 (Alaska State Senate and State House of Representatives) previously required 5% of the votes cast in the preceding general election. . Counsel for the state also claimed that there is a valid state interest in protecting the two party system and in seeing that public officials are elected by a majority of the voters. See Bullock v. Carter, 405 U.S. 134, 145, 92 S.Ct. 849, 857, 31 L.Ed.2d 92, 101 (1972). The state evidently does not claim that that was an actual motivation for the 1980 amendments. See Smith v. State Executive Comm, of Democratic Party of Ga., 288 F.Supp. 371, 374-75 (N.D.Ga. 1968). . We note that because of Alaska's relatively small population, the actual number of signatures required by laws that have been upheld in other cases is far in excess of even the 4,880 required under the current law. See, e.g., Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974) (325,000); American Party of Texas v. White, 415 U.S. at 786, 94 S.Ct. at 1308, 39 L.Ed.2d at 763 (22,000). A percentage figure will often better measure support, however, since in measuring the burden placed on a candidate by a nominating requirement, the size of the population from which potential petition signers, volunteers, and campaign staff are drawn, is critical. . We note that the United States Supreme Court has applied such a test in a ballot access case, but has not done so uniformly. American Party of Texas v. White, 415 U.S. 767, 780-81, 94 S.Ct. 1296, 1305-06, 39 L.Ed.2d 744, 760 (1974). See McLain v. Meier, 637 F.2d 1159, 1164 (8th Cir. 1980). . The former requirement of 1000 signatures amounted to somewhat less than 1% of the votes cast in 1978. . The greatest number of candidates that has appeared on the ballot occurred in 1978, when two independent candidates appeared, and a third staged a write-in campaign. The state conceded at oral argument that five was not an excessive or confusing number of candidates. . Similarly we note that Justice Harlan in his concurrence in Williams v. Rhodes, supra, seems to have found the absence of abuse under Ohio's old 1 % requirement to be a ground for overturning the statute challenged there. 393 U.S. at 47 n.9, 89 S.Ct. at 19 n.9, 21 L.Ed.2d at 41 n.9. . This is not refuted by the state; however, the position taken by the state did not require refutation of this or of the other factual assertions made by appellants. .AS 15.25.130 states, in part:

10433690

Jerome LaMOUREAUX and Billie Marjorie LaMoureaux, Appellants, v. TOTEM OCEAN TRAILER EXPRESS, INC., Terry R. Risinger, Sea Star Stevedore Co., Inc., and Anchorage Independent Longshoreman's Union # 1, Appellees; TOTEM OCEAN TRAILER EXPRESS, INC., Terry R. Risinger, and Sea Star Stevedore Co., Cross-Appellants, v. Jerome LaMOUREAUX and Billie Marjorie LaMoureaux, Cross-Appellees

LaMoureaux v. Totem Ocean Trailer Express, Inc.

1982-09-24

Nos. 4593, 4730

839

841

651 P.2d 839

651

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:30:38.512786+00:00

CAP

Before BURKE, C. J., RABINOWITZ, CONNOR and MATTHEWS, JJ., and BLAIR, Superior Court Judge.

Jerome LaMOUREAUX and Billie Marjorie LaMoureaux, Appellants, v. TOTEM OCEAN TRAILER EXPRESS, INC., Terry R. Risinger, Sea Star Stevedore Co., Inc., and Anchorage Independent Longshoreman’s Union # 1, Appellees. TOTEM OCEAN TRAILER EXPRESS, INC., Terry R. Risinger, and Sea Star Stevedore Co., Cross-Appellants, v. Jerome LaMOUREAUX and Billie Marjorie LaMoureaux, Cross-Appellees.

Jerome LaMOUREAUX and Billie Marjorie LaMoureaux, Appellants, v. TOTEM OCEAN TRAILER EXPRESS, INC., Terry R. Risinger, Sea Star Stevedore Co., Inc., and Anchorage Independent Longshoreman’s Union # 1, Appellees. TOTEM OCEAN TRAILER EXPRESS, INC., Terry R. Risinger, and Sea Star Stevedore Co., Cross-Appellants, v. Jerome LaMOUREAUX and Billie Marjorie LaMoureaux, Cross-Appellees. Nos. 4593, 4730. Supreme Court of Alaska. Sept. 24, 1982. Spencer C. Sneed, Hartig, Rhodes, Norman & Mahoney, Anchorage, for appellants and cross-appellees. Ann K. Stokes, Bradbury, Bliss & Rior-dan, Inc., Anchorage, for appellee Union. Sanford M. Gibbs, Hagans, Brown & Gibbs, Anchorage, for remaining appellees and cross-appellants. Before BURKE, C. J., RABINOWITZ, CONNOR and MATTHEWS, JJ., and BLAIR, Superior Court Judge. Blair, Superior Court Judge, sitting by assignment made pursuant to article IV, section 16 of the Constitution of Alaska.

1602

9686

OPINION ON REHEARING BURKE, Chief Justice. On October 18, 1976, Jerome La-Moureaux was waiting to make a left turn when his vehicle was struck from behind by a truck driven by Terry Risinger. Risinger was a longshoreman dispatched by Longshoreman's Local # 1 to work for Sea Star Stevedoring. At issue in this petition is whether the Union owed a duty of care to members of the public to ensure that union members dispatched to drive were qualified drivers. LaMoureaux identifies two sources of such a duty: (1) a duty of care flowing from general tort law considerations; and, (2) a duty of care assumed by contract and evidenced by port practice. Because we remand for a factual finding on whether the union voluntarily undertook to ensure that its drivers were qualified, we do not reach the broader question of whether such a duty exists under general tort law principles. The trial court granted summary judgment to the union, determining that the union and LaMoureaux lacked a relationship sufficient to give rise to a duty of care. Summary judgment is appropriate where there is no genuine question of material fact and the moving party is entitled to judgment as a matter of law on the established facts. Adams v. State, 555 P.2d 235, 237 (Alaska 1976); Braund, Inc. v. White, 486 P.2d 50, 53 (Alaska 1971). All inferences of fact are drawn in favor of the person opposing the motion and against the mov-ant. Nizinski v. Golden Valley Electric Association, Inc., 509 P.2d 280, 283 (Alaska 1973). LaMoureaux contends that summary judgment was inappropriate .because the proffered evidence gave rise to a genuine question of material fact, i.e., whether the union voluntarily assumed a duty of care to ensure that union members dispatched as drivers could lawfully drive. We agree. The contract between Sea Star and the union does not explicitly obligate the union to check its members for driving qualifications. The agreement does, however, provide that the union shall dispatch regular and experienced longshoremen, presumably individuals qualified to do those tasks necessary in offloading cargo. A longshoreman dispatched to drive a truck is not qualified if unlicensed. Additionally, LaMour-eaux presented the testimony of Darrell Bahner, the manager of Sea Star Stevedore North. Bahner testified that he understood that the union was obligated to supply competent and licensed drivers. He testified further that the union had actually undertaken this responsibility and that Sea Star relied on the union's screening process. Given that all factual inferences should be drawn adversely to the union, Nizinski v. Golden Valley Electric Association, Inc., 509 P.2d 280, 283 (Alaska 1973), we think the proffered evidence gives rise to a genuine issue of material fact whether the union assumed a duty of care. We remand for a determination of this question. REVERSED and REMANDED. COMPTON, J., not participating. .For a more comprehensive rendition of the facts underlying this case, see LaMoureaux v. Totem Ocean Trailer Express, Inc., 632 P.2d 539, 541-42 (Alaska 1981). In that case, we held, among other things, that LaMoureaux did not intend to forego his appeal by obtaining a writ of execution in partial satisfaction of judgment. Id. at 543. We did not address the question of union liability, reasoning that no purpose would be served by addressing the issue since LaMoureaux's damages had been conclusively determined and completely satisfied. Id. at 546. In so holding, we overlooked the fact that the trial court awarded attorney's fees to the union as the prevailing party below. Although we have previously stated that we will not hear a moot case merely to determine who is the prevailing party for purposes of awarding attorneys' fees, State, Comm'r of Dept, of Health v. Seward Marine Serv., Inc., 612 P.2d 1010, 1012 n.3 (Alaska 1980); Munroe v. City Council of Anchorage, 545 P.2d 165, 170 (Alaska 1976), modified, 547 P.2d 839 (Alaska 1976), we believe that the rule announced in those decisions is wrong and those decisions are therefore overruled as to that point. AS 22.05.010(b) provides for an appeal to this court from civil actions commenced in the superior court. It draws no distinctions between judgments which are adverse because a party has been required to pay money for costs and attorney's fees and those which are adverse because a party has been required to pay money as damages. In each case, an appeal is a matter of right. . Risinger had an abysmal driving record on the date he was dispatched to drive for Sea Star. In the three years prior to the accident, he had accumulated five speeding citations, four safety related citations and one unsafe passing violation. In addition, he was involved in two rear end collisions in which he was admittedly at fault. The Department of Public Safety had suspended Risinger's license as a result of these violations and he was driving without a license at the time of the accident. It is uncontested that the union did not know of Risinger's driving record when it dispatched him to drive for Sea Star Stevedoring. This is not a case where an actor proceeded negligently in the face of a known risk. Rather, the question presented is whether the union had a duty to investigate Risinger's driving record and thus learn of his dangerous propensities. . Sea Star Stevedoring had entered into a contract with Longshoreman's Local # 1. . The concept of voluntary assumption of a duty has long been established in this jurisdiction. See Adams v. State, 555 P.2d 235, 240 n.7 (Alaska 1976) and cases cited therein. In Adams, we held that where the state undertook to conduct safety inspections for fire hazards, it assumed a duty of care running to third persons. Breach of this duty subjected the state to liability to persons injured as a result of the state's negligence. In deciding that case, we cited § 324A of the Restatement (Second) of Torts, which provides: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking. Applying the tenets of § 324A to the present case, union liability would be present if La-Moureaux established that the union undertook to screen its members for driving competence (a service necessary for the protection of third parties) and that Sea Star relied on the union's assumption of that duty. Several courts have intimated that there can be no liability in the assumption of a duty of care context where the negligence consists of mere nonfeasance as opposed to malfeasance, i.e., negligent performance. See, e.g., Hanson v. Blackwell Motor Co., 143 Wash. 547, 255 P. 939 (1927). We think this distinction without merit and decline to adopt it here. As we noted in Adams v. State, 555 P.2d 235, 240 n.10 "[wjhere there is a duty to act, inaction as well as unreasonable action may constitute a breach." See also Transamerica Title Ins. Co. v. Ramsey, 507 P.2d 492, 496 (Alaska 1973). . Bahner testified, in part, as follows: Q: Okay. And with this background and with the safety meetings and whatnot, you trust the union, then, to send you safe drivers? A: That's — we always have felt that it's the obligation of the union to supply us with skilled people. They've always taken that responsibility. Q: Okay, it's fair to say that you rely on the union to send you safe drivers? A: Yes.... Q: Sir, is it your understanding of the contract with the longshoremen that contractually they're obligated to supply you with safe and competent drivers? A: Yes. Q: Okay. Do you know what part of the contract requires that? A: No. Q: If you took a moment, could you identify it, do you think or A: No, I don't think that I probably could. It's kind of an understanding, as we say down there, past port practice. Q: Past what? A: Port practice. In other words, they've always been able to-supply us with competent people and that's why the union has the particular jurisdiction, because they supposedly are going to be able to supply us with qualified people to do that type work. Q: With respect to driving records of employees, having licenses or not having licenses, that sort of thing, do you expect to get that information from the union on a driver? A: I expect the union to supply me with qualified drivers.

10433819

Daniel S. WRIGHT, Appellant, v. STATE of Alaska, Appellee

Wright v. State

1982-10-01

No. 5739

846

849

651 P.2d 846

651

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T19:30:38.512786+00:00

CAP

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

Daniel S. WRIGHT, Appellant, v. STATE of Alaska, Appellee.

Daniel S. WRIGHT, Appellant, v. STATE of Alaska, Appellee. No. 5739. Court of Appeals of Alaska. Oct. 1, 1982. Allan Beiswenger, Asst. Public Defender, Kenai, and Dana Fabe, Public Defender, Anchorage, for appellant. Charles M. Merriner, Asst. Atty. Gen., Anchorage and Wilson L. Condon, Atty. Gen., Juneau, for appellee. Before BRYNER, C. J., and COATS and SINGLETON, JJ.

1785

11011

OPINION BRYNER, Chief Judge. Daniel Wright was indicted for distribution of marijuana to a minor in violation of AS 17.12.010 and 17.12.110(c). The indictment alleged that Wright shared a marijuana cigarette with a sixteen-year-old girl. After a jury trial, Wright was acquitted of distribution to a minor, but convicted of the lesser offense of distribution of marijuana in violation of AS 17.12.010 and 17.12.-110(b). Wright was sentenced to two years' imprisonment, with all but forty days suspended; in addition, he was placed on probation for a five-year period following his release. Wright appeals his conviction on the ground that the trial court erred in refusing to instruct the jury that the term "distribute in any manner," as used in AS 17.12.-010, did not apply to non-commercial transfer of small amounts of marijuana. Wright also appeals his sentence on the grounds that the length and conditions of his probation are excessive and that the sentencing judge considered improper factors in imposing sentence. Wright's argument that the provisions of AS 17.12.010 are not meant to apply to gratuitous transfers of small quantities of marijuana hinges primarily upon a 1975 letter of intent written by the Free Conference Committee that amended AS 17.12.-110 to its present form. The letter of intent was written to explain the Free Conference Committee's failure to adopt an amendment to AS 17.12.110 that would have expressly exempted from the felony provisions of subsection (b) gratuitous transfers of small amounts of marijuana. It stated, in relevant part: The present law, which states that a 'gift' of marijuana may be considered a 'sale' in certain instances has never been nor was ever intended to be applied to cases where small amounts of marijuana have been transferred with no present or future profit motive in mind, and the Committee believes that no specific amendment to the law [AS 17.12.110] is necessary. 1975 House Journal 1263. It is Wright's position that this letter of intent must be read to restrict the applicability of AS 17.-12.010, which sets forth prohibited conduct relating to possession, use and sale of marijuana. The prohibitions of AS 17.12.010 are, on their face, broad and allencompassing in nature; specifically, that portion of AS 17.-12.010 making it unlawful for a person to "distribute in any manner, a depressant, hallucinogenic or stimulant drug," apparently reflects the legislature's intent to prohibit any form of sale of transfer or marijuana. Thus, this provision is, on its face, unambiguous. See Winters v. State, 646 P.2d 867, 871-72 (Alaska App.1982). Wright's position, nonetheless, is that legislative history such as the Free Conference Committee's letter of intent may be relied upon to find the existence of ambiguity where none might otherwise be apparent. Wright is correct in asserting that a finding of statutory ambiguity may be based upon consideration of legislative intent. See State, Department of Natural Resources v. City of Haines, 627 P.2d 1047, 1049 n.6 (Alaska 1981). However, we do not find that the Free Conference Committee's 1975 letter of intent suffices to render the scope of the prohibitions contained in AS 17.12.010 ambiguous. The 1975 letter of intent did not purport to explain the meaning of legislation passed upon and adopted by the committee. Rather, in its letter, the Free Conference Committee simply put forth its understanding of a law previously enacted by a different legislature. Under these circumstances, the 1975 letter of intent cannot be given determinative weight in ascertaining the meaning of the words "distribute in any manner," as used in AS 17.12.010. The letter must be given a lesser degree of significance. See Southcentral Health Planning & Development, Inc. v. Commissioner, 628 P.2d 551, 553 (Alaska 1981); 2A C. Sands, Sutherland Statutory Construction § 48.06, at 203 (4th ed. 1973). Additionally, because the 1975 letter of intent did not comment upon any change adopted in the amendment to AS 17.12.110, statements made in the letter were never debated or voted upon: the full legislature was not given an opportunity to express its agreement or disagreement with the Free Conference Committee's views. In our view, this factor further erodes the significance that should be attached to the letter of intent. See, e.g., State, Department of Natural Resources v. City of Haines, 627 P.2d 1047, 1050 n.9 (Alaska 1981); 2A C. Sands, Sutherland Statutory Construction § 49.10, at 261 (4th ed. 1973). On balance, we cannot attribute any overriding significance to the 1975 letter of intent as easting doubt on the otherwise plain and unambiguous meaning and intent of the provisions stated in AS 17.12.010. We are similarly constrained to reject Wright's argument that the language of AS 17.12.110, as amended in 1975, must be taken as an implied limitation on the scope of the term "distribution in any manner," as that term is used in AS 17.12.010. The primary focus of the legislature's 1975 revision of AS 17.12.010 was to reduce penalties in cases involving personal possession of small quantities of marijuana. There is nothing to indicate that the legislature intended to reevaluate and revise the provisions of AS 17.12.110 insofar as they dealt with sale and distribution of marijuana. We find no irreconcilable conflict between the legislative amendments to AS 17.12.110 and an interpretation of AS 17.12.010 that would accord the latter statute's use of the term "distribute in any manner" its plain meaning. Accordingly, the plain meaning of AS 17.12.010 must be given effect, and the 1975 revision of AS 17.12.110 cannot properly be deemed to constitute an implied limitation of AS 17.12.010. See Hafling v. Inlandboatmen's Union of Pacific, 585 P.2d 870 (Alaska 1978); Peter v. State, 531 P.2d 1263 (Alaska 1975). We conclude that non-commercial transfers, of small quantities of marijuana must be deemed to fall within the ambit of the prohibition against distribution which is contained in AS 17.12.010; such distribution is therefore subject to the felony provisions of AS 17.12.110(b). It follows that the trial court did not err in refusing to instruct the jury to the contrary. We next consider Wright's sentence appeal. Despite our conclusion that Wright's sharing of a marijuana cigarette with another person amounted to distribution punishable as a felony under AS 17.12.-110(b), we note that the legislature has recently enacted, and the governor has signed into law, a comprehensive revision of Alaska laws dealing with drug offenses. See Ch. 45, SLA 1982. Under the provisions of this legislation, sale or delivery of less than one-half ounce of marijuana constitutes Misconduct Involving a Controlled Substance in the Seventh Degree, a violation punishable only by a fine of not more than $100. See AS 11.71.070(a)(1) and (b), and AS 11.71.190(b), as set forth in Ch. 45, § 2, SLA 1982. See also AS 12.55.035(b)(5). We recognize that the provisions of this newly enacted legislation are not directly binding in the present case and do not strictly limit the scope of the sentence that could properly be imposed. Nevertheless, we think that the new legislation is relevant to the determination of an appropriate sentence in this case. In Whittlesey v. State, 626 P.2d 1066 (Alaska 1980), the supreme court discussed whether penalty provisions of the Alaska Revised Criminal Code should be considered in determining an appropriate sentence in a case arising before the applicable date of the revised code. The court in Whittlesey stated, 626 P.2d at 1068: The comprehensive and explicit standards of the new criminal code are the most recent expressions of legislative policy in the highly subjective realm of sentencing. They are the result of long and careful deliberation by that body. We agree with Whittlesey that the sentencing provisions of the new criminal code are useful and relevant in the determination of an appropriate sentence under the present circumstances . We believe that similar logic applies to the newly enacted comprehensive drug legislation. Because this bill had not been enacted when Wright was sentenced, the superior court was obviously unable to consider it. We think that it would be preferable to refrain from reaching the merits of Wright's sentence appeal until the superior court has had occasion to reevaluate the sentence originally imposed in light of the new legislation. For this reason, we have concluded that a remand for resentencing is called for in the present case. The judgment of conviction is AFFIRMED. The case is REMANDED for resentencing. . Special conditions of Wright's five-year probationary term required him to refrain from possessing any marijuana and, upon request of his probation officer, to submit to blood or urine tests, personal searches or searches of his premises. . AS 17.12.010 provides: Acts prohibited. Except as otherwise provided in this chapter, it is unlawful for a person to manufacture, compound, counterfeit, possess, have under his control, sell, prescribe, administer, dispense, give, barter, supply or distribute in any manner, a depressant, hallucinogenic or stimulant drug. . AS 17.12.110(a), (b) and (c) provide: Penalties, (a) A person who violates a provision of this chapter relating to the possession or control of depressant, hallucinogenic and stimulant drugs, other than marijuana, when his possession or control is for his own use, is guilty of a misdemeanor and upon conviction is punishable by imprisonment for not more than one year, or by a fine of not more than $1,000, or by both. (b) A person who violates a provision of this chapter other than one mentioned in (a) of this section, or a person who violates a provision of this chapter relating to the possession or control of depressant, hallucinogenic and stimulant drugs, when his possession or control is for the purpose of sale or other disposal to another person, is guilty of a felony and upon conviction is punishable as follows: (1) for the first offense, by imprisonment for not more than 25 years, or by a fine of not more than $20,000, or by both; (2) for the second and subsequent offenses, by imprisonment for any term of years or life, or by a fíne of not more than $25,000, or by both. (c) A person who violates a provision of this chapter by selling or otherwise disposing of a depressant, hallucinogenic or stimulant drug to a person less than 19 years of age is guilty of a felony and upon conviction is punishable by imprisonment for any term of years or life, or by a fine of not more than $25,000, or by both.

10435951

Michael A. GALLAGHER, Appellant, v. STATE of Alaska, Appellee

Gallagher v. State

1982-10-01

No. 5450

1185

1191

651 P.2d 1185

651

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T19:30:38.512786+00:00

CAP

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

Michael A. GALLAGHER, Appellant, v. STATE of Alaska, Appellee.

Michael A. GALLAGHER, Appellant, v. STATE of Alaska, Appellee. No. 5450. Court of Appeals of Alaska. Oct. 1, 1982. D. John McKay, Anchorage, and Robert Merle Cowan, Kenai, for appellant. Peter A. Michalski and Rhonda F. Butter-field, Asst. Attys. Gen., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for appellee. Before BRYNER, C. J., COATS and SINGLETON, JJ.

3901

23797

OPINION BRYNER, Chief Judge. Michael A. Gallagher appeals from his conviction and sentence for the crimes of sale of cocaine and possession of cocaine. We affirm Gallagher's conviction and sentence. We will briefly address each of the numerous issues raised by Gallagher. Gallagher challenges the validity of a warrant issued on August 7, 1979, authorizing electronic monitoring of the transaction in which Gallagher sold cocaine to a police informant, one Harvey Knutsen; also challenged is the manner in which the warrant was executed. Our recent holding in Jones v. State, 646 P.2d 243 (Alaska App.1982), is dispositive of Gallagher's arguments relating to the August 7 warrant. We conclude that the August 7 warrant was properly issued and executed. Gallagher's claim that he was entitled to a preliminary hearing even though he had been indicted is controlled by our ruling in Pascua v. State, 633 P.2d 1033 (Alaska App.1981), in which we rejected a similar claim. We hold that Gallagher was not entitled to a preliminary hearing, on either due process or equal protection grounds. Gallagher contends that the August 10, 1979, warrant for the search of his residence — which led to seizure of the cocaine resulting in his conviction for possession— was not supported by probable cause. His argument is premised on the claim that the August 7 warrant for electronic monitoring was invalid. Since we have concluded that the August 7 warrant was properly issued and executed, we find that the August 10 warrant was supported by probable cause. Gallagher also contests the validity of the August 10 warrant for the search of his residence. He argues that police officers engaging in the search failed to leave a copy of the affidavit in support of the warrant at his residence, as required by Alaska R.Crim.P. 37. It is undisputed that the failure to leave a copy of the supporting affidavit at Gallagher's residence was intentional on the part of officers conducting the search, who did not want to risk possible disclosure of the identity of their undercover informant. Officers conducting the search did, however, leave a copy of the warrant itself, together with an inventory of the property seized. We are inclined to agree with federal authorities stating that suppression of evidence will be justified as a result of improper execution of a warrant only if the defendant was actually prejudiced or if non-compliance was intentional. Here, the superior court determined that Gallagher had not demonstrated legal prejudice as a result of the failure to serve a copy of the supporting affidavit. Having reviewed the appellate record, we conclude that the superior court was not clearly erroneous in making this finding. Thus, the finding must be upheld. While we think that intentional, or bad faith, failure to comply with requirements governing execution of warrants might in some instances justify suppression of the fruits of a search regardless of the lack of prejudice, we believe that the determination whether to apply the suppression sanction should be made on the basis of the particular facts of each case and that a per se rule of suppression should not be adopted. Two reasons support this conclusion. First, compliance with the rules governing execution of warrants is essentially ministerial. Thus, even when non-compliance is intentional, it will often have little actual or potential impact on the rights of those affected by the search. Second, suppression of evidence is not the only effective remedy in such cases, since the court's contempt powers can be exercised in appropriate cases. Considering the facts of the present case, we agree with the superior court's determination that suppression was not warranted. The non-compliance in this case, though misguided, was motivated by concern for protection of the identity of an informant, and not out of a desire to expand the scope of the search beyond that which was authorized; nor was the non-compliance calculated to harass or prejudice Gallagher in some other fashion. In this sense the non-compliance, while intentional, was not undertaken in bad faith. More significantly, a copy of the warrant itself was properly served; it expressly indicated that it was based upon a written affidavit executed before the issuing judge. Given this fact, it is apparent that no effort was made by the officers to conceal the fact that a duly authorized search of the residence had been made. There was, furthermore, no effort to conceal the purpose of the search or the nature and identity of articles seized. Considering the totality of the circumstances, we believe that the superior court was correct in finding that the officers who conducted the search substantially complied with the requirements of Criminal Rule 37 and in refusing to order suppression despite the intentional failure to serve a copy of the affidavit. Gallagher's final attack against the August 10 search warrant is based on the contention that material information was omitted from the affidavit in support of the warrant. Although the officer who executed the affidavit for the August 10 warrant was aware that cocaine had apparently been delivered to an area at the rear of Gallagher's residence on the night of August 7, 1979, and that this delivery was the source of the cocaine sold by Gallagher to Knutsen that night, he failed to include this information in his affidavit. We conclude that this omission was not material. There is nothing .to indicate that either the officer who executed the affidavit or Harvey Knutsen, the police informant who had purchased cocaine from Gallagher, had any specific reason to believe that on the night of August 7 Gallagher had sold Knut-sen all of the cocaine that was delivered to his home. In the absence of some affirmative indication that Gallagher retained no cocaine after his sale to Knutsen, we think that the information relating to the delivery of August 7 does not have significant impact on the extent of probable cause contained in the affidavit for the August 10 warrant. Applying the test of Cruse v. State, 584 P.2d 1141,1146 (Alaska 1978), we do not think that the omission of the information concerning delivery of cocaine to Gallagher's house "materially influenced the . . judge to issue a warrant he would have otherwise denied." An additional contention raised on appeal pertains to the trial court's decision to excuse a juror in the middle of trial. We conclude that the neutral position expressed by Gallagher's trial counsel concerning the court's dismissal of the juror falls short of constituting an objection that sufficiently preserved this issue for appeal. In any event, having reviewed the totality of the statements made by the juror in response to questions posed by both the court and counsel, we conclude that the superior court acted well within the bounds of its discretion in excusing the juror and replacing him with an alternate. Gonzales v. State, 608 P.2d 23, 25 (Alaska 1980); see also Alaska R.Crim.P. 24(c)(3). Gallagher also argues that the trial court improperly refused to allow him to present a witness who was called as an expert on the use of informants in drug cases for the purpose of impeaching Knut-sen's testimony. We note initially that the trial court specifically indicated that it might permit the witness to testify on the subject of potential abuse of electronic monitoring equipment by informants if, after being given a chance to examine the electronic surveillance equipment actually used in the case, the witness could state that it was substantially similar to recording equipment with which the witness was familiar. Despite the court's willingness to entertain a further offer of proof on this subject, none was made. We conclude that Gallagher's failure to follow up with an offer of proof constituted a waiver as to this aspect of the witness' proposed testimony. Moss v. State, 620 P.2d 674, 677 (Alaska 1980). As to the balance of the testimony for which Gallagher's expert witness was called, we believe that the trial court's refusal to permit testimony was justified. The decision whether to permit this testimony was one to be made by the trial court in the exercise of its discretion; we cannot reverse absent a showing of abuse. Handley v. State, 615 P.2d 627, 630 (Alaska 1980). • The offer of proof made on behalf of Gal--lagher at trial was both vague and confusing as to the proposed testimony. Specifics as to the content of the proposed testimony were, for the most part, omitted. While the trial court was told in general terms of the subjects that the proposed witness would-address, the court was told very little about what the witness would actually say with respect to these subjects. What specifics there were, were plainly irrelevant. For example, it was proposed that Gallagher's expert would testify that informants in drug cases never turn in their primary source of drugs. Moreover, there was nothing in the offer of proof to indicate that Gallagher's expert — who clearly had substantial experience with and could testify about informants in drug cases — would be capable of connecting his general observations and experience to Knutsen's specific situation. Having reviewed the totality of the offer of proof made at trial, we find no abuse of discretion by the court in rejecting the proposed expert testimony on the ground that it would not be relevant. See, e.g., Moss v. State, 620 P.2d at 676-77; White v. State, 577 P.2d 1056, 1062 (Alaska 1979). The next issue advanced by Gallagher is a claim that the prosecutor withheld a photograph which Gallagher alleges was favorable to his defense; the photograph depicted a blanket hung over the living room window of Gallagher's residence and was taken during the search conducted on August 10,1979. Gallagher contends that this photograph was crucial because Knutsen, in his testimony at trial, stated that he had seen a shadow, which he took to be a person, pass by outside the window. Knutsen stated that there was nothing over the window to obstruct his view. Thus, it is Gallagher's theory that the photograph would have been vital evidence to impeach Knut-sen. We find no violation by the prosecutor of the duty to disclose. Whatever relevance this evidence might have had became apparent only after Knutsen's testimony on cross-examination. The record is uncontro-verted that prior to trial Gallagher's counsel had received police reports specifically stating that the interior of Gallagher's residence had been photographed during the August 10 search; furthermore, the prosecutor alluded to the fact that he possessed photographs of the interior of Gallagher's residence during presentation of the casein-chief. Despite what we think was clear notice of the existence of this evidence, Gallagher's counsel made no request to see any photographs in the possession of the state, either before or during trial. Additionally, we believe that the photograph in question would have been of marginal utility to the defense, at best. As the state correctly notes, the presence of the blanket over the window is not necessarily inconsistent with Knutsen's testimony that he briefly saw a shadow pass by the window. To the extent there is inconsistency, it is important that Knutsen's testimony on this subject was collateral; it was not directly relevant to establish any material issue in the case. The sole relevance of the undisclosed photograph would thus have been to show that Knutsen was incorrect in his observation or dishonest in his testimony concerning a collateral incident. It has long been recognized that the use of extrinsic evidence to impeach a witness on a collateral matter may be disallowed by the court. Hence, we believe that the potential value of this photograph to Gallagher was tenuous. A secondary argument raised by Gallagher with respect to the undisclosed photograph is that the trial court improperly denied his motion for a new trial; the motion was based on the contention that his discovery of the existence of the photograph following trial constituted new evidence. Given our conclusion that Gallagher's counsel had ample notice prior to trial of the existence of photographs depicting the interior of Gallagher's house, and given our conclusion as to the marginal probative value of this evidence, we conclude that a new trial was properly denied. Gallagher's final attack on the validity of his conviction deals with the introduction into evidence of a portion of the tape recordings of the August 7, 1979, transaction between himself and Knutsen. Gallagher claims that these recordings were inaudible, and therefore inadmissible. The rule is well established that partially audible recordings may be admitted, within the discretion of the trial court, if their probative value outweighs their potential for prejudice and if the omitted portions are not so substantial as to render the recordings unreliable. Quick v. State, 599 P.2d 712, 721 (Alaska 1979); Hampton v. State, 569 P.2d 138, 146 (Alaska 1977); Dana v. State, 623 P.2d 348, 354 (Alaska App.1981). See also Alaska Rule of Evidence 403. We have reviewed the recordings played to the jury and find that they are virtually inaudible, except for isolated bits and snatches of conversation. The trial court found these recordings to be of slight probative value. Although we would be more inclined to conclude that the content of the tapes was not probative, we note that playing the tapes could arguably have been relevant to establish for the jury's satisfaction that an effort to monitor the transaction had in fact been made, but was unsuccessful. On balance, however, we believe that whatever probative value the recordings may have had was outweighed by the fact that the virtual total inaudibility of the recordings rendered them untrustworthy, thereby leaving it to the jury to speculate as to what was actually said. Hampton v. State, 569 P.2d at 146. For this reason, we think it would have been best to exclude this evidence. Lamar v. State, 258 Ind. 504, 282 N.E.2d 795, 799-800 (1972); People v. Mincey, 64 A.D.2d 615, 406 N.Y.S.2d 526, 527 (1978). Nevertheless, we find no prejudicial error under the circumstances of this case. While the probative value of 'the tapes must be deemed extremely low, their almost total lack of content significantly reduced any potential for the jury to speculate as to the meaning of portions of the tape which might have been ambiguous and out of context. The tapes simply left little for the jury to speculate about. More significantly, despite the fact that Gallagher's trial counsel was apparently aware of the content of the tapes, they were initially played to the jury without objection. Only after admission of the tapes into evidence and after the jury had actually heard them did Gallagher first move to strike this evidence. We believe that the lateness of Gallagher's objection requires us to review the trial court's decision allowing the tapes to remain in evidence in light of the fact the jury was already aware of the tape's content when the decision was made, rather than as an abstract issue of relevance. Given the relatively low potential for prejudice in allowing the challenged tapes to remain in evidence, and given the fact that these tapes had already been admitted and heard by the jury before an objection was first raised, we believe that any error by the trial court in refusing to grant Gallagher's motion to strike was harmless. In addition to challenging his conviction, Gallagher maintains that the sentence that he received was improperly imposed and too severe. Judge James Hanson, in his sentencing remarks, commented on his view that deterrence of others in the community was an important consideration in drug cases. The judge went on to state that, while he had doubts about the effectiveness of criminal sentences as a deterrent to others in metropolitan areas such as Anchorage, his experience indicated that in smaller communities such as Kenai, criminal sentencing did in fact play a significant role in deterring potential offenders other than the accused. I may not be able to get anybody to agree with me, but I think that one of the major aspects of sentencing in drug cases is deter rence of other members of the community who might be similarly inclined. In a metropolitan area, its my experience, and I've probably done more sentencings in Anchorage than I have in Kenai, that there is minimal deterrent effect from a sentence even in the more outrageous crimes for profit, such as armed robbery or burglary and so forth. The impact of what the court does in a metropolitan area seems to be minimal, even though the publicity given by the newspapers, etcetera, is considerable. My experience in ten years down here is that the impact of a sentencing in this court in this area has substantial effect. Based on these remarks, Gallagher contends that he was discriminated against for living in Kenai and given a higher sentence than he would have received in Anchorage. We disagree. Judge Hanson never indicated that his sentence in this case was increased over what he would have imposed in Anchorage. Instead, after stating that deterrence of others was an important factor in sentences for all drug offenses, the judge merely indicated that this sentencing goal was more likely to be effective in the community of Kenai. We think that the true issue in this case is not whether Judge Hanson discriminated in imposing sentence, but rather whether the judge correctly applied the sentencing criteria specified in State v. Chaney, All P.2d 441, 444 (Alaska 1970). We believe that he did. Judge Hanson adequately explained his reasons for imposing Gallagher's sentence. The sentence imposed clearly reflects that Judge Hanson placed the greatest emphasis on Gallagher's rehabilitation. Only secondary importance was attributed to deterrence of others. We do not believe that, in considering this latter goal, the judge erred by taking into account the extent of need for deterrence of others in the community in which Gallagher committed his offense. Similarly, we do not think Judge Hanson erred in taking into account the probable extent to which a sentencing involving incarceration would deter other potential offenders in the community in which the sentence was imposed. Having reviewed the sentencing record, we conclude that Judge Hanson was not clearly mistaken in sentencing Gallagher. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). The judgment and sentence are AFFIRMED. Originally filed August 26, 1982, as a memorandum opinion and judgment pursuant to Appellate Rule 214. Publication directed by the court October 1, 1982. . Gallagher was charged by indictment with one count of sale and one count of possession of cocaine. Both offenses constituted violations of AS 17.10.010. . Our disposition of this issue makes it unnecessary to consider whether probable cause would have existed in the affidavit for the August 10 search warrant if the information seized as a result of the August 7 warrant for electronic surveillance were deleted. . See, e.g., United States v. Marx, 635 F.2d 436, 441 (5th Cir. 1981). . Gallagher claims that the lack of service deprived him of a chance to contact and interview Knutsen before the time of his suppression hearing. Gallagher has not, however, specified what information he could have obtained from Knutsen on or about August 10 that he was not able to obtain in the course of later proceedings. Nor has Gallagher established that Knut-sen would have been willing to talk to him in the days immediately following the search of his home. Additionally, there is no assurance that service of the affidavit on Gallagher would have enabled him to determine the identity and location of Knutsen, since the affidavit referred to Knutsen only by his code name, "N-170." Finally, the copy of the search warrant left at Gallagher's residence made it clear that the warrant was based upon a written affidavit sworn to before the court. Thus, Gallagher should have been on notice of the existence of the affidavit. Presumably, a copy of the affidavit would have been available to Gallagher through the superior court in Kenai; nothing in the record would indicate the contrary. .United States v. Marx, 635 F.2d at 441. . We do not mean to imply that we condone omission of this information. Though not of vital importance in this case, the information was obviously of some relevance; it was also specifically known to the officer who executed the affidavit on August 10. We take this occasion to repeat the admonition of the Alaska Supreme Court in Cruse v. State, 584 P.2d at 1146 (footnote omitted): Police and prosecutors owe a duty of candor to the court, particularly in light of the ex parte nature of these proceedings, and must not withhold information which may taint the source of probable cause they put forth. . The relevant portion of the statement made by Gallagher's trial counsel concerning dismissal of the juror was as follows: [Tjhis is totally a discretionary matter with the court and . the only way that the court would be reversed would be a prejudicial abuse of discretion, and I think that is the standard but I think that the real standard is the court must find before it exercises its discretion, the court must find what has been stated by Mr. Smith is going to be re — just cause for excluding him from this panel and replacing him with an alternate. I'll leave that to the court's decision. . We emphasize our belief that the issue of admissibility of evidence such as tape recordings should be determined before the evidence is heard by the jury, and preferably prior to trial. Because the only method by which a trial judge will be capable of evaluating the probative value and potential for prejudice of a partially audible tape recording is by listening to the recording itself, it is imperative that the judge be given the opportunity to review the recording and make a determination as to its admissibility before the jury is exposed to it. Here, we find it doubtful whether an instruction for the jury to disregard the tapes once the jurors had already heard them would have been of substantial benefit. To the contrary, such an instruction might have engendered speculation by members of the jury as to the contents of the recordings and the reasons for their having been stricken from the record. . Judge Hanson's sentencing comments in this regard were: . Gallagher was given a three-year suspended imposition of sentence on both counts. As a special condition of probation on the count for sale of cocaine, he was required to serve 270 days in jail; for possession of cocaine a special condition required him to serve 30 days in jail. The jail time on both charges was made concurrent. . We further conclude that Judge Hanson was not bound by the Sentencing Guidelines for Drug Felonies prepared by the Sentencing Guidelines Committee. These guidelines were intended to serve as a statistical source of reference, and not as a limitation on sentencing. As the Alaska Supreme Court stated in Anderson v. State, 621 P.2d 1345, 1346 n.3 (Alaska 1981): "The selection of an appropriate sentence . remains an individualized determination which must be reflective of the particular facts of a given case."

10435867

A.B.M., Natural Mother, Appellant, v. M.H. & A.H., Prospective Adoptive Parents, Appellees

A.B.M. v. M.H.

1982-09-24

No. 6200

1170

1176

651 P.2d 1170

651

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:30:38.512786+00:00

CAP

Before RABINOWITZ, CONNOR, MATTHEWS and COMPTON, JJ., and DIMOND, Senior Justice.

A.B.M., Natural Mother, Appellant, v. M.H. & A.H., Prospective Adoptive Parents, Appellees.

A.B.M., Natural Mother, Appellant, v. M.H. & A.H., Prospective Adoptive Parents, Appellees. No. 6200. Supreme Court of Alaska. Sept. 24, 1982. Suzanne Weller and Jim Kentch, Alaska Legal Services Corp., Anchorage, for appellant. Thomas E. Fenton, Fairbanks, for appel-lees. Niesje J. Steinkruger and D. Rebecca Snow, Asst. Attys. Gen., Fairbanks, and Wilson L. Condon, Atty. Gen., Juneau, for amicus curiae State of Alaska. Terry L. Pechota, Boulder, Colo., for ami-cus curiae Native American Rights Fund. Dimond, Senior Justice, sitting by assignment made pursuant to article IV, section 11 of the Constitution of Alaska, and Alaska R.Admin.P. 23(a).

3334

19866

OPINION Before RABINOWITZ, CONNOR, MATTHEWS and COMPTON, JJ., and DIMOND, Senior Justice. DIMOND, Senior Justice. I On February 16, 1980, A.B.M. gave birth to a baby girl, R.H. A.B.M. was not married and had made arrangements prior to birth to give her child up for adoption to her sister and brother-in-law, M.H. and A.H. On April 9, 1980, a hearing was held before a master during which A.B.M. executed a Consent to Adoption and a Relinquishment of Parental Rights. Because an adoption questionnaire completed by the H.'s indicated that R.H. was an Indian child, the hearing was conducted pursuant to the Indian Child Welfare Act (Act), 25 U.S.C. § 1901-63 (Supp.1981). A.B.M. was advised that under the terms of the Act she could revoke her consent to the adoption at any time before the final adoption decree was entered. A hearing on the H.'s petition for adoption took place in August 1980 and a final decree of adoption was entered by the superior court on September 5, 1980. In November 1980 the State Department of Health and Social Services, Division of Family and Youth Services' (Department) became aware of R.H.'s adoption while conducting a children's proceeding involving one of M.H.'s biological sons. The Department discovered that it had not been notified of R.H.'s adoption proceedings as required by AS 20.15.100(a) and had thus been deprived of an opportunity to investigate the suitability of R.H.'s prospective home. As a result of the deficiency in the adoption proceedings the trial court, on motion of the State, vacated the adoption decree and ordered the Department to conduct home studies on the prospective adoptive parents and the natural mother. At the time the decree was vacated, however, the mother, A.B.M., had changed her mind about consenting to the adoption. Following entry of the court's order, A.B.M. formally petitioned for return of custody of her daughter pursuant to section 1916 of the Indian Child Welfare Act. In June 1981, hearings were conducted to determine the future custody of R.H. At the outset of these hearings, A.B.M. filed a motion for summary judgment to establish that the standards of the Indian Child Welfare Act controlled the outcome of the custody issue. The court denied the motion, and proceeded to determine whether the adoption should be granted under state law. The court concluded that it was in the best interests of R.H. to grant the adoption by the H.'s, and refused to allow A.B.M. to withdraw her consent. The principal issue on appeal is whether the superior court erred in not applying the provisions of the Indian Child Welfare Act to the custody proceedings. A.B.M., and the Native American Rights Fund as ami-cus curiae, contend that because R.H. is an Indian child she is entitled to the procedural safeguards accorded Indian children by federal law. In response, the prospective adoptive parents, the H.'s, and the State of Alaska as amicus curiae, argue that the protections of the Act have no application to the instant case. They claim that Congress intended that the Act apply only to custody proceedings involving the removal of Indian children from their homes by non-family public and private agencies, not to disputes within the extended family. In addition, the H.'s now assert that R.H. is not an Indian child as defined by the Act and should therefore be excluded from its coverage. We reject both of these contentions for the reasons stated below, and find that the superior court was mistaken in not applying the provisions of the Indian Child Welfare Act to R.H.'s custody proceedings. II The legislative history of the Indian Child Welfare Act, 25 U.S.C. § 1901-63 (Supp.1981) reveals that Congress was concerned with two major social goals: protecting the best interests of Indian children and promoting the stability and security of Indian tribes and families. In order to achieve these objectives the Act was created to provide "minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture ." The protections of the Act apply to child custody proceedings involving Indian children. It is clear from the Congressional findings included in the Act that Congress was concerned with the alarming number of Indian families which had been broken up by the unwarranted removal of their children by nontribal public and private agencies, thereby depriving the children of exposure to cultural and social standards prevailing in Indian communities and families. The prospective adoptive parents argue that because the Act was intended to remedy the agency bias that has resulted in the removal of Indian children from their cultural settings, its application is not required in the instant case. They contend that R.H.'s adoption by members of her "extended family" (M.H. and A.H.) will not deprive her of the exposure to Indian cultural or social values the Act is designed to safeguard. We agree that the H.'s. have correctly identified one of the primary purposes of the Act, and that application in the instant case is not required to preserve R.H.'s ties to Indian cultural or social values. Nevertheless, we cannot justify creating a judicial exception to the Act's coverage on this basis alone. The language of the Act makes no reference to exceptions for custody disputes within the extended family. Nor does the Act draw a distinction based upon who the adoptive or foster parents of the Indian child will be. In contrast, Congress explicitly excluded certain proceedings from the protections of the Act. In section 1903(1) the definition of "child custody proceeding" specifically excludes custody disputes resulting from divorce proceedings between parents of an Indian child and placements of Indian children resulting from juvenile delinquency actions. It is clear, then, that there were certain internal family disputes which Congress intended to except from the provisions of the Act. These exceptions were clearly expressed and we find no compelling basis for implying any others. In support of their position the H.'s argue that the Act seeks to regulate the "removal of Indian children from their families." They submit that the Act does not apply to the instant case as it instead concerns a voluntary placement within the family. This reasoning is faulty, however, since it improperly assumes that the terms "family" and "extended family" are congruent. We find no language in the Act or its legislative history to indicate that Congress accorded the word "family" anything more than its most common meaning. We are hesitant to conclude that Congress intended that the Act only apply when a child was being removed from his or her extended family in the absence of explicit language to that effect. That Congress did indeed make a distinction between family members and extended family members is borne out by section 1903(2), which defines "extended family member" for purposes of the Act. The State, as amicus curiae, argues that an absurd result will be reached if the Act is applied to A.B.M.'s case, because the H.'s qualify as "Indian custodians" within the meaning of the Act and thus would be entitled to the same procedural protections accorded to the natural parents. The intent of the Act was to provide procedural safeguards for the parent or person standing in the parental role and is evidenced by the fact that the language of the Act consistently refers to its provisions as being applicable to the "Indian parent or custodian" in the disjunctive. However, under the facts of this case, we conclude that the H.'s do not fall within the intended meaning of "Indian custodian". The pertinent provision of the Act, 25 U.S.C. § 1916(a), mandates that "whenever a final decree of adoption of an Indian child has been vacated or set aside . a biological parent or prior Indian custodian may petition for return of custody ." By its terms, this provision makes it clear that the protections of the Act were not intended to apply to prospective adoptive parents against whom an adoption decree was vacated when the natural parent is seeking custody. The H.'s do not meet the requirement of being "prior Indian custodians" regardless of the manner in which the term "Indian custodian" is interpreted. Ill The H.'s final contention is that the Indian Child Welfare Act does not apply to R.H. because she is not an "Indian child" within the meaning of the term as used in the Act. The Act defines an "Indian child" as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." The H.'s argue that there is nothing in the record to indicate that R.H. is a member of or eligible for membership in an Indian tribe. Similarly, although it is conceded that R.H. is the biological child of A.B.M., there has been no showing that her mother is a member of an Indian tribe. We note, however, that in an adoption questionnaire signed by the H.'s and their attorney, the Act's definition of an Indian child was set out in full. Both adoptive parents and their attorney clearly indicated in the questionnaire that R.H. is an Indian child, that her tribal affiliation is Bethel, and that she is subject to the provisions of the Indian Child Welfare Act. Once the H.'s admitted that R.H. was an Indian child subject to the provisions of the Act, they became bound by their judicial admissions in the superior court. IV We conclude that the superior court erred in not applying the provisions of the Indian Child Welfare Act to R.H.'s custody proceedings. We must still determine, however, what effect the proper application of the federal guidelines will have on R.H.'s status. Section 1916(a) of the Act clearly applies to cases such as .R.H.'s, in which a decree of adoption of an Indian child has been vacated. Section 1916(a) provides: (a) Notwithstanding State law to the contrary, whenever a final decree of adoption of an Indian child has been vacated or set aside or the adoptive parents voluntarily consent to the termination of their parental rights to the child, a biological parent or prior Indian custodian may petition for return of custody and the court shall grant such petition unless there is a showing, in a proceeding subject to the provisions of section 1912 of this title, that such return of custody is not in the best interests of the child. If a biological parent petitions for return of custody — as did A.B.M. on February 2,1981 —section 1916(a) mandates that the court grant the petition unless someone challenges it and shows that the return of custody is not in the child's best interests. When there is such a challenge, the hearing to determine whether the petitioner regains custody must meet the requirements of section 1912. Section 1912 states in pertinent part: (d) Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. (f) No termination of parental rights may be ordered in such a proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, 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 determination of a child's best interests under the Act clearly differs from the analysis required by state law when a parent who has consented to an adoption seeks to regain custody of his or her child upon termination of the adoptive relationship. The Act provides that if a party wishes to defeat a biological parent's petition for return of custody, he or she must prove that such return is not in the child's best interests by showing (1) that remedial and rehabilitative programs designed to prevent the breakup of the Indian family have been implemented without success and (2) that such return of custody is likely to result in serious harm to the child. 25 U.S.C. § 1912, 1916 (Supp.1981). This final element must be shown beyond a reasonable doubt and must be established by the testimony of qualified expert witnesses. In contrast, the determination of whether A.B.M. would be entitled to regain custody of R.H. under state law is governed by the standards set forth in AS 20.15.070. This statute provides natural parents with an absolute right to withdraw their consent within ten days of giving consent to adoption. AS 20.15.070(b). However, if a parent attempts to withdraw his or her consent after the ten day period has elapsed (as did A.B.M.), the court must hold a hearing to determine whether it is in the best interests of the child to allow the natural parent to withdraw consent. A.B.M. was not accorded a hearing meeting the requirements of the Indian Child Welfare Act. A hearing was held consider ing R.H.'s best interests under the test set forth by state law rather than the test of serious emotional or physical harm to the child required by section 1912(f). The superior court did not set "beyond a reasonable doubt" as the standard of proof, and did not require testimony of qualified expert witnesses. In short, the court ignored the protections afforded to both R.H. and A.B.M. by the Indian Child Welfare Act. We conclude that because A.B.M. petitioned for return of her child when the H.'s adoption decree was vacated, her child must be returned to her unless such an arrangement is proved to be contrary to R.H.'s best interests under the standards established by the Indian Child Welfare Act. The holding by the superior court granting the adoption of R.H. by M.H. and A.H. is therefore REVERSED. This case is REMANDED to the superior court for a hearing to determine the custody of R.H. in accordance with the Indian Child Welfare Act. BURKE, C. J., not participating. . AS 20.15.100(a) provides in pertinent part: After the filing of a petition to adopt a minor, the court shall fix a time and place for hearing the petition. At least 20 days before the date of hearing, notice of the filing of the petition and of the time and place of hearing shall be given by the petitioner to (1) the department, unless the adoption is by a stepparent of the child; . The notice to the department shall be accompanied by a copy of the petition. . See H.R.Rep.No.1386, 95th Cong., 2d Sess. 25-26 (1978), reprinted in 1978 U.S.Code Cong. & Ad.News 7530. . 25 U.S.C. § 1902 (Supp.1981). . 25 U.S.C. § 1903 provides in pertinent part: (1) "child custody proceeding" shall mean and include— (i)"foster care placement" which shall mean any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated; (ii) "termination of parental rights" which shall mean any action resulting in the termination of the parent-child relationship; (iii) "preadoptive placement" which shall mean the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement; and (iv) "adoptive placement" which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption. Such term or terms shall not include a placement based upon an act which, if committed by an adult, would be deemed a crime or upon an award, in a divorce proceeding, of custody to one of the parents. . See 25 U.S.C. § 1901(4), (5) (Supp.1981). . We decline to follow In re Bertelson, 617 P.2d 121 (Mont.1980), which concerned a custody dispute between the natural mother and grandparents of an Indian child. The Bertelson court categorized the conflict as "an internal family dispute" and held that the Indian Child Welfare Act was not intended to cover such proceedings. We find such interpretation contrary to express provisions of the Act. . See n.4 supra. . Our position is consistent with our holding in E. A. v. State, 623 P.2d 1210 (Alaska 1981), in which we considered the status of grandparents of Indian children who attempted to assert their right to preferential adoptive placement under 25 U.S.C. § 1915(a). Although we held that the Act did not apply because the state had started the adoptive placement before its effective date, we recognized that the Act would be applicable to any future proceedings in that case. Id. at 1215. . 25 U.S.C. § 1902 (Supp.1981). . 25 U.S.C. § 1903(2) (Supp.1981) provides: "[E]xtended family member" shall be as defined by the law or custom of the Indian child's tribe or, in the absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent. .25 U.S.C. § 1903(6) provides: "Indian custodian" means any Indian person who has legal custody of an Indian child under tribal law or custom or under State law or to whom temporary physical care, custody, and control has been transferred by the parent of such child. The state argues that there is no evidence that the H.'s do not have legal custody by tribal custom, by state law, or by the intent of the natural mother and thus they should be regarded as the Indian custodians of R.H. . For example, 25 U.S.C. § 1912(a) provides that in any involuntary proceeding in a state court the moving party "shall notify the parent or Indian custodian and the Indian child's tribe" and § 1912(b) provides the parent or Indian custodian with court appointed counsel if indigent. (Emphasis added.) . See section IV of this opinion for a full discussion of 25 U.S.C. § 1916(a). . 25 U.S.C. § 1903(4) (Supp.1981). . See IX J. Wigmore, Evidence § 2588, at 586 (1940); C. McCormick, Law of Evidence § 262, at 630 (1972). . AS 20.15.070 provides in relevant part: (b) A consent to adoption may be withdrawn before the entry of a decree of adoption, within 10 days, by delivering written notice to the person obtaining the consent, or after the 10-day period, if the court finds, after notice and opportunity to be heard is afforded to petitioner, the person seeking the withdrawal, and the agency placing a child for adoption, that the withdrawal is in the best interests of the person to be adopted and the court orders the withdrawal. . Cf. S.O. v. W.S., 643 P.2d 997 (Alaska 1982). When a natural parent consents to his or her child's adoption and seeks to withdraw such consent before a final decree of adoption has been entered no parental preference is to be applied in determining whether withdrawal of the consent is in the child's best interest. Id. at 1005.

9010191

In the Matter of Kristine A. SCHMIDT, Regarding Sanctions Imposed in Koivisto v. Koivisto, Superior Court No. 3KN-99-00260 Civil

Schmidt v. Koivisto

2005-06-24

No. S-11427

816

827

114 P.3d 816

114

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T19:30:29.234830+00:00

CAP

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

In the Matter of Kristine A. SCHMIDT, Regarding Sanctions Imposed in Koivisto v. Koivisto, Superior Court No. 3KN-99-00260 Civil.

In the Matter of Kristine A. SCHMIDT, Regarding Sanctions Imposed in Koivisto v. Koivisto, Superior Court No. 3KN-99-00260 Civil. No. S-11427. Supreme Court of Alaska. June 24, 2005. Rehearing Denied July 18, 2005. Robert J. Molloy, Kenai, for Appellant. Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices. .Alaska Rule of Civil Procedure 95(a) states: "For any infraction of these rules, the court may withhold or assess costs or attorney's fees as the circumstances of the case and discouragement of like conduct in the future may require; and such costs and attorney's fees may be imposed upon offending attorneys or parties."

6873

42050

OPINION FABE, Justice. I. INTRODUCTION Kristine A. Schmidt is an attorney who requested permission to file a late brief after the superior court master had set a firm date for concurrent briefing and announced that no extensions would be granted. The superior court master accepted Schmidt's late brief but allowed the opposing party to file a reply brief to alleviate the potential for unfair advantage created by the late filing. The superior court instructed Schmidt to pay attorney's fees associated with the opposing party's reply brief pursuant to Alaska Civil Rule 95(a). Later, the superior court, in an apparent oversight, signed a conflicting order, denying the motion to accept the late-filed brief and ordering Schmidt to pay attorney's fees covering the cost of the opposing party's original brief. Because the superior court did not abuse its discretion when it instructed Schmidt to pay attorney's fees associated with the reply brief, we affirm that order. But because it was error to enter the conflicting order rejecting Schmidt's late-filed brief and assessing attorney's fees for the opposing party's original brief, we vacate that order. II. FACTS AND PROCEEDINGS Kristine A. Schmidt is an attorney who represented Hopeful Lucy Koivisto, now Hopeful Lucy Standefer, in divorce proceedings against Clifford Daniel Koivisto. The divorce proceedings were bifurcated and the issues of property division, spousal support, and attorney's fees were tried before Superi- or Court Master Anne M. Preston on March 1, 2000 and March 29-30, 2000. At the end of the trial on March 30, Master Preston asked the parties to file post-trial briefs in lieu of closing argument to address matters that remained in dispute. Master Preston asked Schmidt whether she objected to filing a post-trial brief on behalf of Stande- fer regarding the outstanding issues. Schmidt responded that she did not object. Master Preston then asked Schmidt whether the post-trial briefs should be filed simultaneously, and Schmidt responded, "That would be fíne." When the superior court master asked Schmidt how long she would need to file the brief, Schmidt responded that her work schedule was busy through April 15 and that she would be on vacation for two weeks after that. She requested that the deadline for the closing briefs be "sometime after the first of May." Allan D. Beiswenger, the attorney for Koivisto, then requested an hour for oral argument "in the next few days" in lieu of written post-trial briefs because the matter was "fresh in everyone's mind." Schmidt objected, stating that she did not have time for oral argument, but suggested that Beiswenger could file Koivis-to's post-trial brief under seal right away so that she would not see it before the filing deadline. In an attempt to address both attorneys' concerns, the superior court master directed the parties to file simultaneous briefs on May 10 and stated that she was "not going to allow any continuations." The court master also told Beiswenger that he could file Koivisto's brief under seal at.an earlier date if he wished to do so while the case was still fresh. On May 9, 2000, Beiswenger filed Koivis-to's post-trial brief. He did not file it under seal. Schmidt did not file Standefer's post-trial brief by the May 10 deadline. Almost a week later, on May 16, a superior court clerk phoned Schmidt's office and told Schmidt's paralegal that Master Preston wished to know if Schmidt was planning to file a post-trial brief. According to the paralegal, "Master Preston wanted Ms. Schmidt to know that it was not necessary to do [a post-trial brief;] however if she chose to file one [Master Preston] wanted Ms. Schmidt to be reminded to file a 'Motion for the Court to Accept Late Filed Papers' because the Post Trial Brief was due on May 10th, 2000." The paralegal stated in her affidavit that she put the clerk on- hold and asked Schmidt to affirm that she would file a post-trial brief the next day, on May 17. The paralegal then informed the clerk that Schmidt would be filing a post-trial brief. -According to the paralegal's affidavit, the clerk did not inform her that Schmidt could be subject to sanctions for filing the brief late. Schmidt filed Standefer's post-trial brief on May 17, 2000. She also filed a motion to accept the late-filed brief pursuant to Alaska Civil Rule 6(b)(2), along with an affidavit explaining that she had filed the brief late due to her busy schedule. In the motion to accept the late-filed brief and also in the supporting affidavit, Schmidt asserted that the trial court had set a May 10 due date for the briefs despite Schmidt's request that the due date be set for the third week of May. Yet, as noted above, the transcript reflects that Schmidt actually asked that the due date be set "sometime after the first of May." When the master scheduled the May 10 due date, she indicated that she had chosen the due date out of deference to Schmidt's schedule. On May 23 Beiswenger filed both an opposition to the motion to accept the late-filed brief and a motion for sanctions or attorney's fees incurred as a result of the late filing. The motion stated that Beiswenger spent 4.6 hours drafting his client's post-trial brief, resulting in $851 in attorney's fees. Beis-wenger's motion requested that the superior court deny Schmidt's motion to accept Stan-defer's late-filed brief. It also requested that the superior court impose sanctions or attorney's fees in the amount of $851. The motion asserted that "failure to meet deadlines has become more the rule than the exception in this case," and that Schmidt had also failed to file Standefer's witness list, trial brief, and exhibits on time. On June 20 Superior Court Judge pro tempore M. Frances Neville granted Schmidt's motion to accept the late-filed brief. The superior court stated that it agreed with Beiswenger's argument that "post-trial briefs were to be filed simultaneously, and that [Standefer's] delay gave her the unfair advantage of being able to read and respond to points raised in [Koivis-to's] brief." Therefore, the superior court authorized Koivisto to file a reply to Stande-fer's post-trial brief. In addition, the superi- or court awarded Koivisto reasonable attorney's fees and costs associated with the reply brief pursuant to Alaska Civil Rule 95(a). The superior court instructed Schmidt, rather than Standefer, to pay the fees and costs because "the delay appear[ed] to have been occasioned solely by [Standefer's] counsel." On June 27 Beiswenger filed Koivisto's reply to Standefer's post-trial brief. Beis-wenger also filed an itemization of costs and fees claiming $656.40 as the charge for preparing the reply brief. On June 29 Schmidt filed a motion for reconsideration of the superior court's June 20 order, alleging that the order was an abuse of discretion and violated Standefer's constitutional rights. On July 21 the superior court denied Schmidt's motion for reconsideration. The superior court issued two additional orders on July 21. One was Koivisto's original proposed order denying Standefer's first motion to accept the late-filed brief. This order contradicted the superior court's June 20 order granting the motion to accept the late-filed brief. This order also granted Koivisto the $851 in attorney's fees that he had incurred for the preparation of his initial post-trial brief and did not specify whether Schmidt or Standefer should pay these fees. The second order granted Koivisto the $656.40 that he had incurred for the preparation of his reply brief in response to Stande-fer's late-filed brief. This order was consistent with the superior court's earlier order that Schmidt, rather than Standefer, should be responsible for the fees, stating that the money was to be "paid within ten (10) days of the date of this Order by counsel for Plaintiff, Kristine A. Schmidt, to Allan Beiswen-ger, attorney for Defendant." On February 23, 2001, the superior court master issued a master's report regarding the property division, spousal support, and attorney's fees. The report recommended that each party pay its own attorney's fees and costs. Due to Koivisto's subsequent bankruptcy, the superior court did not issue a decision regarding the master's recommendations until May 10, 2002. When the superior court did issue a decision, the superior court adopted all but three of the master's recommendations. On September 12, 2003, Koivisto wrote a letter to the superior court inquiring about enforcement of the July 21, 2000 orders awarding him attorney's fees for his post-trial brief and his reply to Standefer's late-filed post-trial brief. In response, the trial court issued an order considering the letter a motion to enforce the July 21, 2000 orders and inviting Schmidt to respond to the motion. Schmidt filed a response, arguing that the July 21, 2000 orders were superseded by the court's May 10, 2002 decision adopting the master's recommendation that the parties pay their own attorney's fees. On December 18, 2003, the superior court issued an order granting Koivisto's motion to enforce the July 21, 2000 orders. The superior court observed that the July 21, 2000 orders required Schmidt to pay the attorney's fees within ten days of the orders, and that the master's report was not issued until February 23, 2001, well after the money was due. On March 1, 2004, the superior court entered a judgment against Schmidt in the amount of $1,778.53. The award represented $1,507.40 in attorney's fees plus five percent interest beginning on August 1, 2000. Schmidt appeals the March 1, 2004 judgment. III. DISCUSSION A. Standard of Review We review awards of attorney's fees and sanctions for abuse of discretion. We review questions of law de novo. We apply our independent judgment when determining whether a party's procedural due process rights have been violated. We also exercise our independent judgment when interpreting a civil rule. The trial court's factual findings are reviewed for clear error. B. The Superior Court Did Not Abuse Its Discretion when It Awarded Koivisto Reasonable Attorney's Fees and Costs Associated with the Reply Brief Pursuant to Civil Rule 95(a). The first order from which Schmidt appeals is the June 20, 2000 order regarding Schmidt's late-filed brief, in which the superi- or court authorized Koivisto to file a reply brief and instructed Schmidt to pay reasonable attorney's fees and costs associated with Koivisto's reply brief. Because this order was not an' abuse of the superior court's discretion, we affirm. 1. Schmidt violated "these rules" as that term is used in Civil Rule 95(a). Schmidt first argues that Civil Rule 95(a) only applies when there has been a violation of one of the Alaska Rules of Civil Procedure. Civil Rule 95(a) states: "For any infraction of these rules, the court may withhold or assess costs or attorney's fees...." The phrase "these rules" is not defined, but Alaska Civil Rule 1 also uses the phrase, stating: "The procedure in the superior court . shall be governed by these rules in all actions or proceedings of a civil nature ." In addition, Rule 95 is located in Part XIII of the Rules of Civil Procedure. Part XIII is entitled "General Provisions," and the other rules in this part examine the construction and applicability of the rules of civil procedure. Thus, Schmidt is correct that the phrase "these rules," as used in Civil Rule 95(a), refers to the Alaska Rules of Civil Procedure. In a related argument, Schmidt contends that the superior court was required to specify which civil rule Schmidt had violated when it assessed attorney's fees and costs against her under Civil Rule 95(a). The superior court's June 20 order directed Schmidt to pay reasonable attorney's fees and costs associated with Koivisto's reply brief "[pjursuant to Alaska Civil Rule 95(a)," but did not indicate which of the civil rules Schmidt had violated. Schmidt contends that our decision in Wilson v. Municipality of Anchorage is directly on point. In Wilson, a firefighter sued the Municipality of Anchorage, alleging breach of contract and racial discrimination claims related to the city's hiring and promotional decisions. The superior court concluded that the firefighter's suit was without merit and that filing it "constituted vexatious and bad faith conduct, which counsel, not the client should have recognized." The superior court assessed attorney's fees against the firefighter's attorneys without citing any authority for the award. On appeal, we reversed the award of attorney's fees, noting: Alaska Civil Rule 95(a) allows trial courts to award fees against counsel. Fees and costs may be imposed upon attorneys "[f]or any infraction of these rules . as the circumstances of the case and discouragement of like conduct in the future may require." But assessment under Rule 95(a) requires a showing that counsel has violated "these rules." The order awarding fees here did not identify what rules counsel violated, if any.[ ] Based on this language, Schmidt argues that the superior court's order in this case was improper because it did not identify which of the civil rules Schmidt violated by filing her brief late. But Wilson is distinguishable from this case. First, the superior court in Wilson failed to mention Civil Rule 95(a) when it assessed attorney's fees against Wilson's attorneys, despite the fact that the municipality had only requested an award of attorney's fees pursuant to Alaska Civil Rule 82. Civil Rule 82 does not authorize an assessment of awards against counsel, so we were left to speculate about whether the award might have been authorized under Civil Rule 95(a). In contrast, the superior court's assessment of attorney's fees against Schmidt in this case specifically cited Civil Rule 95(a). Second, the superior court in Wilson assessed fees against Wilson's attorneys because "the filing of the action constituted vexatious and bad faith conduct." For public policy reasons, it is especially important to require a trial court to make specific findings before assessing fees against attorneys for filing "vexatious" actions — otherwise, attorneys might be deterred from filing legitimate claims on behalf of their clients. Here, Schmidt filed a late brief, despite the superior court master's clear admonition that she was "not going to allow any continuá-tions." The consequences of the superior court's decision to require Schmidt to pay attorney's fees associated with Koivisto's reply brief were foreseeable in that they compensated Koivisto for extra expenses incurred as a result of Schmidt's late filing and deterred Schmidt from filing late briefs in the future. And the superior court's order explained the basis for the sanction: "the court agrees with Mr. Koivisto's [counsel's] argument that post-trial briefs were to be filed simultaneously, and that Ms. Koivisto's delay gave her the unfair advantage of being able to read and respond to points raised in his brief." Thus, while the superior court failed to identify the specific rule that Schmidt violated, the basis for the sanction order was clear. Moreover, Schmidt is incorrect in her contention that her conduct "did not violate any Alaska Rule of Civil Procedure." This essentially amounts to an argument that litigants do not need to comply with deadlines set by the superior court. Yet Alaska Civil Rule 53(b) authorizes court masters to "exercise the power to regulate all proceedings in every hearing before the master and to do all acts and take all measures necessary or proper for the efficient performance of the master's duties." This rule allows a superior court master to impose reasonable deadlines for litigants. Civñ Rule 6, which governs deadlines and permits the trial court to authorize extensions at its discretion, is also predicated upon the superior court's authority to set enforceable deadlines. Civil Rule 16(f) allows the superior court to impose sanctions when an attorney fails to obey a scheduling order, and Rule 46(h) allows the court to fix the time for closing argument. Implicit in each of these rules is the understanding that if the court may set deadlines, litigants must follow them. In Sheehan v. University of Alaska, we observed that "adherence to filing deadlines assures the most orderly handling of the Alaska courts' ever-growing caseload. Judicial efficiency and expeditiousness are two pragmatic goals whose observance ensures justice, and we intend to see those goals honored." Thus, our case law recognizes that filing deadlines for briefs are essential to the efficient administration of the judicial system. Indeed, we have explicitly held that failure to comply with a briefing schedule is reason for imposing sanctions under Civil Rule 95. In Esch v. Superior Court, we considered a challenge to a $500 fine that the superior court assessed against an attorney after the attorney filed a late brief. Although we concluded that the superior court had not fulfilled Rule 95(b)'s express language requiring advance notice of the proposed sanctions and an opportunity to respond, we stated that the late filing of a brief is a legitimate reason for imposing sanctions under Rule 95: "We consider the failure to comply with . a briefing schedule to be a violation of a rule promulgated by this court, sufficient to authorize the imposition of Rule 95(b) sanctions." Our basis for this statement was former Appellate Rule 45(f), which, like the current version of Civil Rule 16, granted the superior court discretion to set scheduling deadlines. In Stephenson v. Superior Court, we upheld punitive sanctions imposed under Civil Rule 95(b) even though the superior court did not specify which rule the offending lawyer had violated. Here, the superior court did make a finding that the "delay gave [Standefer] the unfair advantage of being able to read and respond to points raised in [Koivisto's] brief." Although the best practice is to specify which rule an attorney has violated, we conclude that if the violation can be gleaned from the text of the order, the order imposing sanctions may be upheld. Schmidt next contests the superior court's finding that the delay created an unfair advantage for Standefer. Schmidt complains that the superior court "did not make any findings identifying facts showing that Ms. Schmidt had read Mr. Koivisto's brief, that Ms. Schmidt had responded to points raised in Mr. Koivisto's brief, or that Ms. Schmidt had violated any identified Alaska Rule of Civil Procedure (or other rule)." But the superior court's factual finding that Schmidt could have read the brief and obtained a tactical advantage as a result of the delay was not clearly erroneous, and Schmidt does not point to any legal authority support ing the proposition that the superior court needed to find that Schmidt actually did read Koivisto's brief. Schmidt argues that Koiv-isto impliedly waived his claim for attorney's fees because he did not file his post-trial brief under seal, thus negating any "unfair advantage" Standefer might have gained by filing her brief late. While it is true that the superior court master instructed Beiswenger that he could file Koivisto's brief under seal, the understanding was that Beiswenger would do so in the event that he filed Koivis-to's brief early. As it turned out, Beiswen-ger filed Koivisto's post-trial brief on May 9, one day before the May 10 deadline. Had Schmidt filed Standefer's brief on time, she would have had one day at the most to gain an unfair advantage by reading Koivisto's brief. Instead, she filed the brief on May 17, more than a week late, giving her ample time to read and respond to the brief if she wished. We conclude that Koivisto did not waive his claim to attorney's fees by failing to file the brief under seal. We have previously observed that monetary sanctions, such as the assessment of attorney's fees and costs, are an appropriate remedy for late-filed briefs. In fact, we have expressed a preference for monetary sanctions over litigation-ending sanctions. For example, in Sheehan, we reviewed the superi- or court's decision to deny a motion to extend the deadline for filing an opening brief in an administrative appeal. As a result, the appeal was dismissed. We reversed, calling dismissal of the case an extreme sanction." We observed that "it may have been appropriate for the trial court to impose some sort of monetary sanction according to Appellate Rule 510." Appellate Rule 510 contains language identical to that in Civil Rule 95. Schmidt also argues that the superior court erred by assessing attorney's fees against her after the clerk called to inquire about the late brief and suggested that a late filing be accompanied by a Civil Rule 6(b)(2) motion to accept the late-filed brief. Schmidt argues that by gaining permission to file a late brief, she implicitly cleared herself of any violations of other civil procedure rules, thus protecting herself from Rule 95 sanctions. But as we recognized in Shee-han, Metcalf, and Brown, the superior court may both accept a late-filed brief and assess monetary sanctions for the lateness. In fact, in Brown, we vacated the superior court's decision to reject a late brief and then ordered the attorney to pay fees and costs as well as an additional fine. Civil Rule 95(a) specifically states that the superior court may assess attorney's fees against attorneys in order to discourage similar conduct in the future. Finally, Schmidt argues that the post-trial brief was "voluntary." The implication is that Schmidt would not have been assessed with attorney's fees had she simply not filed a brief at all. Schmidt argued this explicitly in her memorandum supporting her motion for reconsideration, stating: "Obviously, if Ms. Koivisto had been notified in advance that if she did file a brief, she or her attorney would be fined, it is likely that she would not have filed a brief." But the transcript indicates that the superior court master requested the briefs in lieu of closing argument to address a number of matters that were still in dispute, including the date of separation, identification of property that had been inherited, and the request for spousal support. We are confident that if Schmidt felt that it was in her client's best interests to file the brief, she would have done so as was her duty under Alaska Rule of Professional Conduct 1.3. Because we could discern from the superi- or court's order the basis for its imposition of sanctions under Rule 95(a), and because the superior court did not abuse its discretion, we affirm the June 20 order instructing Schmidt to pay attorney's fees for Koivisto's reply brief, as well as the July 21 order specifying that the fees amounted to $656.40. 2. Schmidt received adequate notice that she could be assessed fines under Civil Rule 95(a) for filing a late brief. Schmidt next argues that this court should interpret Civil Rule 95(a) as requiring the superior court to provide advance notice and an opportunity to be heard before assessing attorney's fees and costs under the rule. In contrast to Civil Rule 95(a), Civil Rule 95(b) allows the superior court to assess punitive fines against attorneys only "after reasonable notice and an opportunity to show cause to the contrary, and after hearing by the court, if requested." We have construed the notice requirement in Rule 95(b) to mean that "counsel must be given some opportunity to explain his conduct, before he can be sanctioned." In Wilson, we declined to decide whether Rule 95(a) also requires advance notice before fees may be assessed. Schmidt argues that the due process clauses of the Alaska and United States Constitutions require notice and an opportunity to be heard before the court may assess attorney's fees under Rule 95(a). In Roadway Express, Inc. v. Piper, the United States Supreme Court considered a case in which a federal district court assessed fees against an attorney who failed to meet various court deadlines. The Supreme Court confirmed that the due process clause is implicated by such sanctions, reasoning: "Like other sanctions, attorney's fees certainly should not be assessed lightly or without fair notice of an opportunity for a hearing on the record." But the Supreme Court also observed that "[t]he due process concerns posed by an outright dismissal are plainly greater than those presented by assessing counsel fees against lawyers." Under the Alaska Constitution, notice and opportunity for hearing must be appropriate to the nature of the case. In this case, any notice deficiency that may have occurred was cured by Schmidt's opportunity to file a motion for reconsideration. Koivisto moved for sanctions and attorney's fees on May 23, 2000. The superior court did not issue its order assessing attorney's fees until June 20, giving Schmidt nearly a full month to respond to Koivisto's motion. But Schmidt never opposed the request for sanctions, instead moving for reconsideration on June 29, after the order had been issued. While it certainly would have been a better practice for the superior court to order Schmidt to show cause why she should not be assessed with attorney's fees before sanctioning her under Rule 95(a), Schmidt could have responded to Koivisto's motion for sanctions. Moreover, the lack of notice was cured because Schmidt had an opportunity to file her motion for reconsideration. In fact, the superior court granted Schmidt an extension to file a memorandum of points and authorities supporting her motion for reconsideration, and Schmidt filed a four-page memorandum on July 7. In her memorandum, Schmidt raised precisely the same arguments that she raises in this appeal. Because Schmidt had an opportunity to challenge the sanction after it was imposed, we conclude that any error resulting from lack of notice was harmless. C. The Superior Court Abused Its Discretion when It Changed Course Without Explanation, Issuing the July 21, 2000 Order Denying Schmidt's Motion To Accept the Late-Filed Brief and Instructing Schmidt To Pay Attorney's Fees for Koivisto's Initial Post-Trial Brief. The superior court issued three orders on July 21,2000. The first order denied Schmidt's motion for reconsideration of the June 20 order instructing Schmidt to pay attorney's fees incurred by Koivisto in filing his reply to Schmidt's late-filed brief. The second order awarded attorney's fees in the amount of $656.40 to compensate Koivisto for the cost of the reply brief, as required by the June 20 order. The superior court also signed the original proposed order submitted by Koivisto opposing Schmidt's motion to accept the late-filed brief and requesting sanctions in the amount of $851, representing the attorney's time to prepare Koivisto's initial post-trial brief. Because the third order directly contradicted the June 20 order accepting Schmidt's late-filed brief and awarded attorney's fees that Koivisto would have incurred regardless of Schmidt's lateness, we conclude that the order was probably signed in error. Moreover, the order is not supported by any findings and the trial court's apparent change of course in denying the previously granted motion to accept a late-filed brief cannot be sustained. Koivisto's original memorandum in opposition to Schmidt's motion to accept the late-filed brief and his attached proposed order requested that the superior court reject Standefer's late brief and compensate Koivis-to for the preparation of his initial post-trial brief. Koivisto's memorandum asserted that the attorney's fees he incurred for preparation of his post-trial brief were "unnecessary" in light of Schmidt's failure to file a brief for Standefer, implying that the superior court should not consider Koivisto's post-trial brief if it chose to reject Standefer's late brief. Although declining to consider either brief and awarding the cost of Koivisto's initial post-trial brief as a sanction was one approach the superior court could have taken, the superior court instead elected to accept Standefer's late brief and allow Koivisto to file an additional reply brief so that he would have an opportunity to respond to Stande-fer's late brief in light of her opportunity to review his arguments. The superior court's June 20 order then compensated Koivisto for the fees he incurred to file the reply brief. It is apparent from the superior court's final divorce decision, issued on May 10, 2002, that the superior court considered both parties' post-trial briefs: "[T]he court has reviewed the Master's Report, the tapes of the entire trial, the exhibits admitted at trial, [and] the parties' post-trial briefs." Yet the superior court's June 21, 2000 order purported to reject Standefer's post-trial brief, despite the fact that the superior court had previously-accepted the brief, allowed Koivisto to file a reply brief, and would later consider all of the briefs in making the property division decision. And the superior court did not explain why it had decided to reject Schmidt's late-filed brief after accepting it on June 20; nor did the superior court explain its reasons for assessing attorney's fees for the costs incurred by Koivisto in preparing his initial post-trial brief. The superior court also failed to cite Civil Rule 95(a), 95(b), or any other rule authorizing the assessment of attorney's fees for the initial post-trial brief. In this respect the order resembles the order that we reversed in Wilson, as it causes us to speculate about the superior court's reasoning and basis for the sanction. If Rule 95(a) was the authority for the award, the court did not indicate its reasons for invoking the rule. As discussed above, when assessing attorney's fees under Rule 95(a), the superior court must provide an explanation of its reasons for assessing the fees, and the preferred practice is to cite a specific rule that has been violated. Because the order disallowing the late brief was incompatible with the original order, we reverse the superior court's July 21, 2000 order rejecting the late-filed brief and assessing attorney's fees in the amount of $851. D. Koivisto's Claim for Attorney's Fees Was Not Superseded by the Superior Court's May 10, 2002 Order Adopting the Superior Court Master's Recommendation that Each Party Pay Its Own Attorney's Fees. Schmidt argues that Koivisto's claim for attorney's fees was superseded by the superior court's May 10, 2002 decision adopting the superior court master's recommendation that each party pay its own attorney's fees. The master's recommendation was issued in a February 23, 2001 report that addressed issues concerning the marital status of various properties, valuation of marital assets and debts, how to divide marital property, Koivisto's disability payments, spousal support, and the children's investment accounts. The recommendation regarding attorney's fees presumably pertained to fees for the entire case. Schmidt's argument overlooks the fact that she should have paid Koivisto's attorney's fees well before the superior court issued its May 10, 2002 decision. The superior court's June 20, 2000 order instructed Koivisto to file an itemized list of costs and fees associated with the reply brief at the same time he filed the brief. Koivisto did so on June 27. Schmidt moved to reconsider on June 29, and Koivisto opposed the motion on July 17. The superior court's July 21, 2000 orders instructed Schmidt to pay the attorney's fees within ten days. Aside from a July 24, 2000 request to file a reply to Koivisto's opposition to the motion for reconsideration, there is nothing in the record to suggest that Schmidt responded to the July 21 orders or attempted to pay the attorney's fees. In fact, the attorney's fees were not mentioned again until Koivisto wrote a September 12, 2003 letter to the court (without counsel) inquiring about the attorney's fees. In her reply to Koivis-to's inquiry, Schmidt asserted that Koivisto could have raised the issue during a continued portion of the trial that was held on March 28, 2002. But Schmidt does not explain why she did not pay the attorney's fees within ten days of the July 21, 2000 order, as instructed by the court. As the superior court observed in its final order regarding the matter, "the Master's Report was issued on February 23, 2001, nearly seven months after the date that the money was due under the July 21, 2000 orders." (Emphasis omitted.) The superior court added that Schmidt never requested relief from the July 21, 2000 orders: There is nothing in the file to indicate that the court was aware that plaintiffs counsel had not complied with the July 21, 2000 orders. Nor is there anything in the file demonstrating that the plaintiff requested relief from the July 21, 2000 orders. Finally, the defendant did not waive his right to recover these fees by not raising the issue at trial. The issue of these sanctions was not pending before the court at the time of trial. Because the superior court was correct in reasoning that the order to pay attorney's fees was not superseded by the superior court's later decision just because Schmidt delinquently neglected to pay the fees, we conclude that Koivisto's claim for attorney's fees is still valid. IY. CONCLUSION For the reasons discussed above, we AFFIRM the superior court's June 20, 2000 order granting Schmidt's motion to accept the late-filed brief, authorizing Koivisto to file a reply brief, and awarding Koivisto reasonable attorney's fees associated with the reply brief. We also AFFIRM the July 21, 2000 orders denying reconsideration of the June 20, 2000 order and instructing Schmidt to pay $656.40 within ten days. We VACATE the superior court's July 21, 2000 order denying Schmidt's motion to accept the late-filed brief and granting Koivisto attorney's fees associated with the preparation of his initial post-trial brief. We REMAND for entry of judgment against Schmidt in the amount of $656.40 plus prejudgment interest from August 4, 2000. . These matters included the date of separation, property that had been inherited, and spousal support. . Alaska Rule of Civil Procedure 6(b)(2) gives judges discretion to extend deadlines set by court order. . Schmidt filed a memorandum in support of her motion for reconsideration on July 7. . McNett v. Alyeska Pipeline Serv. Co., 856 P.2d 1165, 1167 (Alaska 1993) (attorney's fees); Keen v. Ruddy, 784 P.2d 653, 658 (Alaska 1989) (sanctions). . Doe v. State, Dep't of Pub. Safety, 92 P.3d 398, 402 (Alaska 2004). . Paxton v. Gavlak, 100 P.3d 7, 10 (Alaska 2004). . S.S.M. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 3 P.3d 342, 344 (Alaska 2000). . State, Commercial Fisheries Entry Comm'n v. Carlson, 65 P.3d 851, 858 (Alaska 2003). . Alaska R. Civ. P, 95(a). . We defined the phrase "these rules" as used in then-Civil Rule 72(a) in State v. 1.163 Acres, More or Less, Chuckwm, Inc., 449 P.2d 776, 778 (Alaska 1968), stating: "The phrase 'these rules' refers to all of the other rules of the Alaska Rules of Court Procedure and Administration." Other language in the case indicates that by this we meant the Alaska Rules of Civil Procedure. Id. . Alaska R. Civ. P. 1 (titled "Scope of Rules— Construction"). . See Alaska R. Civ. P. 91, 92. . 977 P.2d 713 (Alaska 1999). . Id. at 718. . Id. at 726 (quoting superior court's decision). . Id. at 726-27. . Id. at 727 (quoting Alaska R. Civ. P. 95(a)) (reversing award of fees against counsel and remanding for further proceedings relating to city's motion for award of fees). . Id. . Id. . Id. at 726. . See Alaska R. Civ. P. 95(a), which authorizes the assessment of attorney's fees "as the circumstances of the case and discouragement of like conduct in the future may require." . Alaska R. Civ. P. 53(b). . Alaska Rule of Civil Procedure 6(b) states: "When by these rules or by a notice given thereunder or by order of the court an act is required or allowed to be done at or within a specified time...." . Alaska Rule of Civil Procedure 16(f) states: If a party or party's attorney fails to obey a scheduling order . the judge . may make such orders with regard thereto as are just.... In lieu of or in addition to any other sanction, the judge shall require the party or the attor ney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney's fees.... . The post-trial briefs were to be filed in lieu of closing arguments, and Alaska Rule of Civil Procedure 46(h) states in part: "The court may fix the time allowed each party for opening statements and final argument.'' . Sheehan v. Univ. of Alaska, 700 P.2d 1295, 1298 (Alaska 1985). . Schmidt argues that a reading of Civil Rule 95(a) allowing sanctions for conduct that does not violate any rule of civil procedure would render Civil Rule 95(a) unconstitutionally vague for lack of notice of what conduct violates "these rules." But because the civil rules clearly allow a trial court to impose deadlines, attorneys and non-attorneys alike could discern that Rule 95(a) permits the assessment of attorney's fees for disregarding a court deadline. . Esch v. Superior Court, Third Judicial Dist., 577 P.2d 1039, 1041 (Alaska 1978). . Id. at 1043. . Id. at 1041 n. 1. . Id. In Schmidt's case, the superior court imposed sanctions under Rule 95(a), but our conclusion that a late-filed brief is ground for sanctions applies equally to attorney's fees assessed under Rule 95(a) and sanctions assessed under Rule 95(b). . Alaska Rule of Civil Procedure 95(b) allows the superior court to fine attorneys "for failure to comply with these rules or any rules promulgated by the supreme court." . Stephenson v. Superior Court, Fourth Judicial Dist., 691 P.2d 653, 656 n. 7 (Alaska 1985) (noting that "the applicable rules should have been cited as a matter of sound practice") (internal citations omitted). . We have indicated in previous cases that a showing of prejudice would bolster the case for imposing punishment for a late-filed brief, but those cases involved dismissal of the case as a result of the late filing. * See Metcalf v. Felec Servs., 938 P.2d 1023, 1025 (Alaska 1997) ("Given that the brief had already been lodged and that appellees demonstrated no prejudice, the harsh remedy of dismissal could be justified only if there had been some controlling principle, such as a need to punish the wrongdoer, deter like conduct, preserve the integrity of the fact finding process, or protect the dignity of the court."); Sheehan, 700 P.2d at 1297 ("If the record indicated in any meaningful way that one of the parties or the trial court suffered prejudice . we would readily affirm" the superior court's denial of the plaintiff's motion for a second extension and the court's dismissal of her case.). . Sheehan, 700 P.2d at 1295-96. . Id. at 1298. . Id. . Alaska R.App. P. 510(b) and (c); see also Metcalf, 938 P.2d at 1025 (suggesting that superi- or court might have considered less extreme sanction than dismissal for late-filed brief); Brown v. Brown, 854 P.2d 732, 732 (Alaska 1993) (vacating superior court's decision to dismiss case where brief was filed late and instead ordering attorney to pay fees, costs, and $500 fine under Appellate Rule 510). . Metcalf, 938 P.2d at 1025; Brown, 854 P.2d at 732; Sheehan, 700 P.2d at 1298. . Brown, 854 P.2d at 732. . Alaska R. Civ. P. 95(a). . Alaska Rule of Professional Conduct 1.3 states: "A lawyer shall act with reasonable diligence and promptness in representing a client." The comment to the rule states that "[a] lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer." . Alaska R. Civ. P. 95(b). . Stephenson, 697 P.2d at 655; see also Tobey v. Superior Court, Third Judicial Dist., 680 P.2d 782, 787 (Alaska 1984) (holding that "the language of Rule 95(b) requires a judge to explicitly notify an attorney when sanctions are being considered and to afford him a reasonable time in which to show cause why the sanctions are not warranted"); Esch, 577 P.2d at 1043 (same). . Wilson, 977 P.2d at 727. Because we conclude that any lack of notice was cured in Schmidt's case, we need not decide the extent to which notice and an opportunity for hearing are required under Civil Rule 95(a). However, we are requesting our Standing Advisory Committee on Civil Rules to consider this question. . Roadway Express, Inc. v. Piper, 447 U.S. 752, 767, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980) (concluding that federal courts possess "inherent power" to-assess contempt sanctions). After the Supreme Court decided Roadway, Congress amended 28 U.S.C. § 1927 to provide that a court may assess attorney's fees against an attorney. 28 U.S.C. § 1927 (2000); see Morris v. Adams-Millis Corp., 758 F.2d 1352, 1357 n. 7 (10th Cir.1985). . Id. at 767 n. 14, 100 S.Ct. 2455. . Lashbrook v. Lashbroolc, 957 P.2d 326, 328 (Alaska 1998). . Cf. Brady v. Fireman's Fund Ins. Cos., 484 A.2d 566 (D.C.1984) (holding that trial court erred by imposing sanctions against attorney without notice and hearing, but error was cured by attorney's subsequent challenge to sanctions). . Wilson, 977 P.2d at 727. . This date is ten business days after July 21, 2000.

10555994

Nelson Patrick MARKS, Appellant, v. STATE of Alaska, Appellee

Marks v. State

1972-04-21

No. 1414

66

69

496 P.2d 66

496

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:31:12.080307+00:00

CAP

Before BONEY, C. J., and RABINO-WITZ, CONNOR, ERWIN and BOOCH-EVER, JJ.

Nelson Patrick MARKS, Appellant, v. STATE of Alaska, Appellee.

Nelson Patrick MARKS, Appellant, v. STATE of Alaska, Appellee. No. 1414. Supreme Court of Alaska. April 21, 1972. Herbert D. Soli, Public Defender, Meredith A. Wagstaff and Lawrence J. Kulik, Asst. Public Defenders, Anchorage, for appellant. John E. Havelock, Atty. Gen., Juneau, Seaborn J. Buckalew, Dist. Atty., Robert L. Eastaugh, Asst. Dist. Atty., Anchorage, for appellee. Before BONEY, C. J., and RABINO-WITZ, CONNOR, ERWIN and BOOCH-EVER, JJ.

1187

7367

OPINION ERWIN, Justice. Appellant has been sentenced to an eighteen-month term of imprisonment for the sale of a hallucinogenic drug in violation of AS 17.12.010. Prior to his trial appellant moved for dismissal of the criminal proceedings against him, arguing that dismissal was constitutionally mandated because eight months had elapsed between the occurrence of the alleged sale and the filing of the indictment. The denial of that pre-trial motion provides the sole claim of error on appeal. The state, prior to filing its brief, filed in this court a confession of error, stating in part: Following review of the record on appeal . . . and of the controlling authority, the State submits that the delay . . . taken in conjunction with the circumstances of the indictment and the prima facie showing of prejudice made by appellant at trial deprived Nelson Patrick Marks of his constitutionally protected rights. Although a confession of error by the Attorney General is entitled to great weight, it does not relieve this court of the obligation to perform our judicial function. The public interest in criminal appeals does not permit their disposition by party stipulation. We must therefore independently review the proceedings below to insure that the error confessed is supported by the record on appeal and has legal foundation. Appellant was charged with having sold on August 28, 1969, two tablets of lysergic acid diethylamide (LSD) to Kenneth Foster, an Anchorage city policeman then working as a narcotics undercover agent. On September 25, 1969, less than one month after the alleged sale, a secret indictment and the resultant arrest warrant were issued; however, both mistakenly named as defendant "Michael Lee Marks." The error was eventually discovered, and, on April 23, 1970, the defective indictment was dismissed. On April 30, 1970, eight months after the occurrence of the alleged offense, the grand jury returned a true bill against appellant using his correct name. Appellant's contention that the dilatory accusation deprived him of his federally guaranteed right to a speedy trial is foreclosed by a recent decision of the United States Supreme Court. In United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), the Court held that the sixth amendment right of an accused to a speedy trial attaches only after the institution of some public criminal charge against him. There is legal basis for appellant's alternative claim that the passage of eight months between the alleged offense and the indictment impaired his ability to defend himself and constituted a denial of due process. Although "the applicable statute of limitations is the primary guarantee against . . . overly stale criminal charges," it "does not fully define [a defendant's] rights with respect to the events occurring prior to indictment." Both the Alaska and federal constitutional guarantees of due process of law serve to protect a defendant against the hazards- of pre-accusation delay. Two factors have been considered relevant in deciding whether substantial delay in accusation constitutes a denial of federal due process: the reasonableness of the delay and the probable prejudice accruing from the delay. In order to assess a claim of due process deprivation, the governmental interest in postponing accusation must be weighed against the defendant's interest in early notice of the charges against him. In sum, both the absence of a valid reason for pre-accusation delay and the fact of prejudice must be established in order to support a due process claim. The state has not attempted to justify on appeal the passage of eight months between the alleged sale and the indictment. Moreover, in its confession of error the state conceded that appellant at trial made a "prima facie showing of prejudice." That concession, made by a party with intimate knowledge of the case is entitled to great weight. The judgment of conviction is reversed, and the case is remanded to the superior court with direction to dismiss the indictment, with prejudice. . Although a few jurisdictions apparently reverse on a confession of error without further consideration, we feel that the better view is that such a confession is not binding on an appellate court. See, e. g., Sibron v. New York, 392 U.S. 40, 58, 88 S.Ct. 1889, 20 L.Ed.2d 917, 932 (1968); Young v. United States, 315 U.S. 257, 258, 62 S.Ct. 510, 86 L.Ed. 832, 834-835 (1942). . We need not here decide whether the speedy trial guarantee of Alaska Const. art. I, § 11, is similarly limited. We note only that the gravamen of appellant's complaint more accurately may be taken as presenting a question akin to a due process issue, centering around appellant's inability to defend himself at trial. . U.S.Const. amend. XIV; Alaska Const. art. I, § 7. . United States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773, 777, 15 L.Ed.2d 627, 632 (1966). See also Toussie v. United States, 397 U.S. 112, 114-115, 90 S.Ct. 858, 25 L.Ed.2d 156, 161 (1970). Such statutes represent legislative assessments of when a defendant's right to a fair trial should be presumed prejudiced because of dilatory accusation. They also provide a degree of predictability which cannot be duplicated in judicial decision. The general five-year statute of limitations in AS 12.10.010 is applicable to the charge at bar. . United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468, 480-481 (1971). . Powell v. United States, 122 U.S.App.D.C. 229, 352 F.2d 705, 708 (1965); Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210, 211 (1965). See also United States v. Lee, 413 F.2d 910, 912-913 (7th Cir. 1969) cert. denied, 396 U.S. 1022, 90 S.Ct. 595, 24 L.Ed.2d 515 (1970); United States v. Feinberg, 383 F.2d 60, 65 (2d Cir. 1967); Schlinsky v. United States, 379 F.2d 735, 737 (1st Cir.), cert. denied, 389 U.S. 920, 88 S.Ct. 236, 19 L.Ed.2d 265 (1967); United States v. Harbin, 377 F.2d 78, 79-80 (4th Cir. 1967); Foley v. United States, 290 F.2d 562, 566 (8th Cir. 1961). . The state has neither attempted to explain the cause of the mistaken denomination on the September 25th indictment nor sought to justify the seven-month delay in its correction. Moreover, we can perceive no legitimate, governmental in- • terest- which might have justified dilatory accusation. The state concedes that the case was neither complex, requiring prolonged pre-charge investigation, nor hinged on the testimony of an undercover agent whose identity the state did not want to reveal. Officer Foster had "blown" his cover by testifying before the grand jury in several cases during September of 1969. . After denying the sale, appellant testified that he and his possible witnesses had no recollection of the events of the day on which it was alleged to have occurred. Further, appellant was unable to contact other possible witnesses who had moved from the area.

10448407

Elliott P. JOHNSON, Petitioner, v. STATE of Alaska, Respondent

Johnson v. State

1978-05-19

No. 3456

20

28

579 P.2d 20

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.

Elliott P. JOHNSON, Petitioner, v. STATE of Alaska, Respondent.

Elliott P. JOHNSON, Petitioner, v. STATE of Alaska, Respondent. No. 3456. Supreme Court of Alaska. May 19, 1978. William H. Babcock, Sitka, for petitioner. James L. Hanley, Asst. Dist. Atty., Larry R. Weeks, Dist. Atty. and Avrum M. Gross, Atty. Gen., Juneau, for respondent. Sue Ellen Tatter, Asst. Public Defender and Brian Shortell, Public Defender, Anchorage, amicus curiae.

4779

28262

OPINION Before BOOCHEVER, C. J., and RABI-NO WITZ, CONNOR, BURKE and MATTHEWS, JJ. MATTHEWS, Justice. This petition for review presents questions as to the admissibility of statements made by Elizabeth Johnson, the victim of a beating, who subsequently died as the result of her injuries. Four statements were made. The first was made shortly after Mrs. Johnson's admission to the hospital on December 30, 1975 to a licensed practical nurse, Vera Marvin. Substantially the same information was conveyed by a second statement made to Dr. Michael Silver, the attending physician. The motion to suppress these statements was denied by the superior court on the basis that they were admissible as statements made for the purpose of medical diagnosis or treatment. We have concluded that the court erred in denying the motion insofar as these statements pertained to the identity of the assailant. The other two statements were made on January 2 and 5, 1976 just prior to and three days subsequent to the victim undergoing surgery. The trial judge found that those statements were not made under such a sense of impending death as to justify their admission under the dying declaration exception to the hearsay rule. We have concluded that the court applied an unduly restrictive standard in deciding this question and that when the proper standard is used at least the January 5 statement should be admitted. The defendant below, Elliott P. Johnson, petitioned for review of the portion of the court's ruling that denied suppression of the first statement, and the State cross-petitioned for review from the part of the court's order suppressing the other two statements. We granted review because of the importance of the statements to the disposition of the case. There apparently are no direct witnesses to the alleged beating of Mrs. Johnson. The order pertaining to the suppression motion involves a controlling question of law as to which there is substantial ground for difference of opinion, and an immediate and present review of the order may materially advance the ultimate termination of the litigation. Postponement of review can result in unnecessary delay and expense. Thus, the requirements of Appellate Rules 23 and 24 for granting review have been fulfilled. I THE STATEMENTS TO MEDICAL PERSONNEL On December 30, 1975, Mrs. Johnson was taken by ambulance to the emergency room at Mt. Edgecumbe Hospital. She was attended by Vera Marvin who found Mrs. Johnson having trouble breathing and in considerable pain. Initially, due to the extent of her injuries, Ms. Marvin thought that Mrs. Johnson might have been run over by an automobile. In answer to inquiries, however, Mrs. Johnson indicated that she had been at a house party and was beaten by another man. Ms. Marvin testified: I think that both the doctor and myself, you know it was hard to believe that it was done by a person, by beating because it looked like a car ran over her and we kept asking — I kept asking Elizabeth so finally I told Elizabeth the doctor has to know what happened to you. And like I said, it looked like a car ran over her, so finally she took my wrist and pulled me over by her and she said I promised that, I promised my husband that I wouldn't tell who did it, that the story that they told was the story that they were going to stick to. She told me then that her husband beat her. Then I turned around and told the doctor and Mrs. Vinsant he had beat her. Subsequently, Mrs. Johnson gave Dr. Silver essentially the same information. The trial judge denied the motion to suppress this testimony based on an exception to the hearsay rule for statements made for the purpose of medical diagnosis or treatment. The exception is set forth in Rule 803(4) of the Federal Rules of Evidence as follows: Rule 803. HEARSAY EXCEPTIONS: AVAILABILITY OF DECLARANT IMMATERIAL. The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. The Alaska Supreme Court is presently considering the adoption of evidence rules containing a provision identical to this rule. Statements of a patient as to presently existing body conditions are generally admitted as evidence of the facts stated because there is a high likelihood of truthfulness resulting from the patient's belief that the doctor will rely on such statements in his diagnosis and treatment. Where statements going to the cause of a patient's condition relate information desirable for diagnosis and treatment, they are also admissible based on the same indicia of reliability. Thus, the trial court was correct in admitting Mrs. Johnson's statements as to the general cause of her condition. The statements, however, also revealed the identity of her alleged assailant. This information did not relate to diagnosis or treatment, and as to that portion of the statements, the court's denial of the motion to suppress was erroneous. The situation presents the same distinction identified by McCormick and the commentary on the Federal Rules of Evidence, between general statements made going to the cause of injury which are important to diagnosis and treatment, and statements entering the realm- of fixing fault. Since statements fixing fault and indicating the identity of an assailant are not relevant to medical diagnosis or treatment, they lack assurances of reliability and should be excluded. II DYING DECLARATIONS On January 2,1976, Mrs. Johnson's condition worsened, with increased abdominal pain and signs of internal bleeding. It was decided that surgery was required. Because of her critical condition and the possibility that she might not survive surgery, a consulting physician, Dr. George Longen-baugh, called the Sitka Police Department to inform them of the situation. Dr. Lon-genbaugh told Mrs. Johnson that her condition was very serious and that she might not survive surgery. He testified: Q Do you feel that she was in a condition such that she could understand what you were saying to her? A I believe so. Her uh — she was (Indiscernible) appropriately and seemed clearer mentally than she had at the time of the first examination. Q Do you have an opinion as to whether or not at that time following your explanation, Elizabeth Johnson would have been laboring under a sense of impending death? A I believe so. I certainly warned her of the gravity of the situation. Yes. Sgt. Edgar Thornton of the Sitka Police Department interviewed Mrs. Johnson in mid-afternoon on January 2, 1976, shortly before she underwent surgery. Mr. Johnson was present. Sgt. Thornton testified: A Well, I asked her who had beaten her up and she stated she didn't know. I then asked her if she and her husband had had an argument and she said I think so. I asked her if she and her husband had had a fight and she said yes. I asked if her husband had hit her and she stated she didn't know or didn't remember. I then asked her if she was married to Elliott Johnson and she stated that they had been married in March 1974. I asked her if Elliott Johnson had beaten her up and she stated he may have, we were alone and started drinking. I also asked her if she knew what her condition was. She said she did. Q Did she indicate if she knew whether or not she was hurt if she was hurt slightly or badly? A She indicated to me that she knew she was seriously hurt. The surgery revealed that among other injuries, Mrs. Johnson's pancreas had been ruptured. Upon discovering this, Dr. Lon-genbaugh believed that it was extremely unlikely that she would survive. Dr. Longenbaugh told Mrs. Johnson after her surgery that she was gravely ill and that her chances of survival were not good. He testified that he regarded it as generally unsound medical practice to tell a patient he was absolutely certain to die, since that would depress him and further reduce his already small chances of recovery. Dr. Silver agreed with Dr. Longenbaugh that Mrs. Johnson was in very grave condition following surgery, and personally told her that before January 5. She was then, according to Dr. Silver, aware that there was a good possibility that she would die. On January 5, 1976, three days after the surgery, Sgt. Thornton again interviewed Mrs. Johnson. Sgt. Thornton testified that, prior to the taping of her interview, Mrs. Johnson advised him that she had consulted a priest. The tape recording of that interview revealed the following: Q Elizabeth Marie Johnson, do you know the seriousness of your condition? A Yes, Dr. Longenbaugh explained it to me. Q Dr. Longenbaugh told you how serious it could be? A Yah, he told me I was (Indiscernible) . . . Q Did your husband, Elliott Johnson, beat you like this? A I think so. Like I said before, we were talking the next morning and he told me if I told him where the money was he wouldn't have beat me up. So I guess he did. Q Did you hide the money from him? A Yes, before we went out drinking, I took just enough to get a car. We had to meet some friends and we went to their place. Q And when you got back did you tell me awhile ago that you forgot where you hid the money? A Yah. Q What was the last thing you remember? A That's the only. Q You just remember , him hitting you? A No, after I woke up at 9:00 o'clock the next morning Q Do you remember what morning that was? A No I don't. It was the same morning I came over here. Q The same morning? A Yah. Q Did you say anything to him at the time? A I kept asking him to take me to the hospital. Q Did you know that you had been beaten up then? A Yah, I had a black eye and could hardly breathe. Q Did he make a statement to you then? A No. Q Did he tell you that it wouldn't have happened if you had given him the money? A Yah, all he said. My mouth is dry, can I take this out for awhile? It sure dries out my throat. As we have indicated previously, the trial court granted the motion to suppress these two statements. The admission of dying declarations, under certain conditions, is a well-recognized exception to the rule excluding hearsay testimony. Two basic reasons have been advanced for admission of such testimony: necessity, because of the witness' death, and a belief that the approach of death removes ordinary motives to misstate. In Hewitt v. State, 514 P.2d 6 (Alaska 1973), we discussed the subject of dying declarations. The facts in the case revealed that Hicks and Hewitt shot each other in a gunfight. A doctor informed Hicks that he would probably die unless he was operated on, and that he might die anyway. Immediately before surgery, a police officer took a statement from Hicks in which he blamed defendant Hewitt for starting the shooting. Three days after the surgery, Hicks contradicted his previous statement, saying that he, rather than Hewitt, was responsible for starting the shooting. The trial judge admitted the statement taken before surgery as a dying declaration, but refused to admit the subsequent statement in which he took the blame himself. On appeal, four justices participated. Justice Connor, joined by Justice Boochever, held that the statement given to the police officer was not a dying declaration, and indicated that the proper standard required abandonment of all hope of recovery: To be admissible as a dying declaration, the utterance must be that of a person laboring under a sense of impending death, who has abandoned all hope of recovery. Id. at 8. Justice Erwin, with whom Justice Rabi-no witz joined, held that there was no error in admitting the statement made to the police officer. He indicated no basic disagreement with Justice Connor's statement of the law concerning dying declarations, but expressed the applicable standard as "laboring under a sense of impending death" without also requiring that the de-clarant abandon all hope of recovery. Id. at 12. Justice Erwin stated: Rarely is medical testimony absolute on the issue of impending death. Further, there is a natural constraint present in such situations which causes hesitancy in stating to the victim that there is no chance of recovery for fear of destroying whatever fragile hope of survival the will to live will provide. Id. It is the state's contention that the trial court erred by applying an incorrect standard. It argues that a requirement that one must abandon all hope of recovery is not realistic because doctors rarely indicate to a patient that there is no hope of recovery. The recently enacted Federal Rules of Evidence no longer require abandonment of all hope of recovery. Rule 804(b)(2) provides: (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the decedent'is unavailable as a witness: (2) Statements under belief of impending death — In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death. The proposed Alaska Rules of Evidence 804(a)(2) similarly demands only that the statement be made "by a declarant while believing that his death was imminent." We believe that to require that the declarant have abandoned all hope of recovery is overly demanding. In light of modern medical science it is rare indeed that all hope of recovery is abandoned, yet a victim may be aware of the probability that his death is impending to the extent necessary to create sufficient solemnity to give adequate assurance of the trustworthiness of his testimony. What is required for a dying declaration to be admissible is that the de-clarant have such a belief that he is facing death as to remove ordinary worldly motives for misstatement. In that regard, the court may consider the totality of the circumstances including the presence or absence of motive to falsify and the manner in which the statement was volunteered or elicited. The trial judge in his decision on the motion to suppress in this case expressed his conclusions in terms of the "abandonment of all hope" standard. I just can't as a finder of fact establish that first of all . that all hope was abandoned . . . I just do not feel the facts are strong enough to say that she was overwhelmed by the death possibility. . We believe that when the proper standard is used — awareness of impending death — the admission of at least the recorded statement made by Mrs. Johnson on January 5 is required. It was then ex tremely unlikely that she would survive and she had been advised by two physicians of the gravity of her condition. She was conscious and alert. In the opinion of the only physicians asked to express an opinion, she was laboring under a sense of impending death. She had consulted a priest. Further we find no evidence tending to show that she was not aware that there was a high probability that she would soon die. Petition for Review granted. Trial court order affirmed in part and reversed in part. Remanded for proceedings consistent with this opinion. . The court has been assisted by scholarly briefs prepared by the Public Defender Agency as amicus curiae and the Office of Attorney General in reply. . See McCormick's Handbook of the Law of Evidence § 292, at 690-92 (2d ed. 1972). . See Cestero v. Farrera, 110 N.J.Super. 264, 265 A.2d 387, 392-93 (1970). . McCormick states: On the other hand, when statements as to causation enter the realm of fixing fault it is unlikely that the patient or the physician regarded them as related to diagnosis or treatment. In such cases, the statements lack any assurance of reliability and would properly be excluded. McCormick, supra note 2, at 691. The Advisory Committee's Note to Federal Rule of Evidence 803(4) states in part: Statements as to fault would not ordinarily qualify under this latter language. Thus a patient's statement that he was struck by an automobile would qualify but not his statement that the car was driven through a red light. Under the exception the statement need not have been made to a physician. Statements to hospital attendants, ambulance drivers, or even members of the family might be included. Moore's Federal Practice, Rules Pamphlet Part 2, Federal Rules of Evidence, at 834 (1975). . We do not reach the question of statements made to a psychiatrist which may be relevant to psychiatric diagnosis or treatment. . We have been presented with no criminal case in which statements pertaining to the identity of an assailant have been admitted into evidence under this exception to the hearsay rule. The case of People v. Gant, 58 Ill.2d 178, 317 N.E.2d 564, 569 (1974), cited by the state, permitted testimony of a doctor as to statements of the victim as to the nature of her wound and the fact that she knew the assail ant. The statement did not reveal the identity of the assailant; and to the extent that it did not deal with the general cause of the wound, we do not believe it should have been admitted under this exception to the hearsay rule. . V Wigmore, Evidence, § 1431, 1438 (Chadbourn rev. 1974); McCormick, supra note 2 at 680-81, 2 Wharton's Criminal Evidence, § 315 (13th ed. 1972). The advisory committee on the Federal Rules of Evidence noted, concerning the latter reason: "While the original religious justification for the exception may have lost its conviction for some persons over the years, it can scarcely be doubted that powerful psychological pressures are present." . In adopting a more inclusive dying declaration standard we are influenced in part by those authorities holding that all statements of deceased persons, not merely dying declarations, should generally be excepted from the hearsay rule. See Wigmore, supra note 7, § 1427, 1576 and 1577. This approach was adopted in different forms by the American Law Institute in the Model Code of Evidence, Rule 503(a), and the Commissioners on Uniform State Laws in the Uniform Rules of Evidence, Rule 63(4)(c). The Uniform Rules have been adopted in modified form in Kansas, New Jersey and Utah. Id. § 1577 at n. 15. Proposed Federal Rule of Evidence 804(b)(2) encompassed the same concept; while this proposed rule was not accepted by Congress, it was adopted by the states of Arkansas, New Mexico and Wisconsin. Id. § 1577 at n. 16 (Supp.1977). In civil cases in Alaska involving the personal representatives of deceased persons, statements of deceased persons are generally admitted pursuant to Alaska Civ.R. 43(g)(4). Variants of the same rule exist in Connecticut, Rhode Island, California, Massachusetts, Oregon and Virginia. Id. § 1576, at 531-533. . Because Mrs. Johnson's medical situation was not known to be so grave on January 2 when she made her first statement to Sgt. Thornton, the question whether that statement is admissible as a dying declaration is closely balanced. We leave its resolution to the trial judge. . This has been regarded as an important factor. See Conner v. State, 225 Md. 543, 171 A.2d 699 (1961); Carver v. United States, 164 U.S. 694, 17 S.Ct. 228, 41 L.Ed. 602 (1897); and other cases collected at 2 Wharton's Criminal Evidence § 324 at 144 n. 11 (13th Ed. 1972). . Before Mrs. Johnson's statement is presented to the jury, the trial judge may wish to give a cautionary instruction similar to that given in Beech Aircraft Corp. v. Harvey, 558 P.2d 879, 890 (Alaska 1976).

10448159

James W. HELMER, Appellant, v. STATE of Alaska, Appellee

Helmer v. State

1980-09-26

No. 4383

884

887

616 P.2d 884

616

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:03:12.061547+00:00

CAP

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

James W. HELMER, Appellant, v. STATE of Alaska, Appellee.

James W. HELMER, Appellant, v. STATE of Alaska, Appellee. No. 4383. Supreme Court of Alaska. Sept. 26, 1980. David C. Backstrom, Deputy Public Defender, Fairbanks, and Brian C. Shortell, Public Defender, Anchorage, for appellant. David Mannheimer, Asst. Atty. Gen., Anchorage, and Avrum M. Gross, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C. J., and CON-NOR, BOOCHEVER, BURKE and MATTHEWS, JJ. This case was submitted to the court for decision prior to Justice Boochever’s resignation.

1761

10908

OPINION RABINOWITZ, Chief Justice. This is a sentence appeal. In the early morning hours of September 4, 1977, James Helmer raped and repeatedly struck on the head with a fireplace poker a fourteen-year-old girl. The victim, a younger sister of a girl Helmer had been dating, was alone in her parents' home at the time. The girl lost her right eye as a result of the attack. After Helmer was found unamenable to treatment as a juvenile, jurisdiction was waived, In re J.W.H., 583 P.2d 227 (Alaska 1978), and he was tried as an adult and convicted after trial of rape, assault with intent to kill, and burglary in a dwelling. He was given consecutive fifteen-year sentences for rape and assault with intent to kill and a concurrent five-year sentence for his burglary conviction. Upon review of the record, we are persuaded that while the atrocious nature of these crimes warrants a substantial period of incarceration, the thirty-year sentence imposed was excessive in light of Helmer's extreme youth and the absence of any prior criminal record. Helmer was seventeen years old when he committed the acts leading to his conviction. At the time of sentencing, he was eighteen. Although Helmer dropped out of school after the ninth grade, he has a steady employment history. At the time of his arrest, Helmer was working as a short-order cook and making approximately $350 per week. There are no indications from law enforcement agencies, or school or juvenile authorities, that Helmer possessed criminal or violent tendencies. His family and friends indicated that Helmer was normally a non-violent, gentle person. Psychiatric evaluations of Helmer generally support this. They describe Helmer's personality as "immature" but agree that there are no indications of mental illness or abnormal personality disorders. The examining psychiatrists concurred in isolating alcohol dependence as Helmer's primary problem. By his own reckoning, Helmer had started drinking when he was twelve and commenced drinking heavily at the age of fifteen. Helmer presented several witnesses at his sentencing hearing who testified that a prison term would be inappropriate and that Helmer felt genuine remorse for his actions. Two of these witnesses suggested that Helmer should be placed in a therapeutic community where he could receive treatment for his alcohol problem. Wayne Jones, the Assistant Superintendent of the Fairbanks Correctional Center, described Helmer as a "model prisoner." A psychologist, Dr. Frank Gold, related that Helmer expressed great concern over his actions and was strongly motivated to receive coun-selling and therapy. In considering this sentence appeal, we must and do recognize that Helmer was convicted of a particularly serious crime which has left his innocent victim with permanent physical injuries, significant emotional problems, and substantial medical bills for past treatments, as well as the need for expensive surgery in the future. For such crimes as Helmer stands convicted of, it is necessary that the sentence reflect recognition of the need to isolate and deter, as well as the community's condemnation of behavior through reaffirmation of societal norms. State v. Chaney, 477 P.2d 441 (Alaska 1970). Because of these important sentencing considerations, we reject Helmer's contention that he should have been given probation, and as a condition of probation, placed in a therapeutic community rather than prison. On the other hand, the legitimate concern for community condemnation does not, in and of itself, negate the necessity to consider other legitimate objectives of sentencing. In this case, Helmer's extreme youth, his lack of any prior criminal record, his steady employment history, his genuine remorse for his actions, and the favorable recommendations from those acquainted with him, all indicate that rehabilitation should be afforded considerable significance in fashioning an appropriate sentence. This approach is consistent with that taken in our prior reviews of lengthy sentences in cases of rape and violent assault. In such cases, we have approved sentences of fifteen to twenty-five years when the offender's history included repeated incidents of sexual assaults. The demonstration of a reeidivous nature rightfully restricts the consideration that can be given to rehabilitation; it underscores the need to protect the public from the offender. Conversely, the absence of a prior criminal record works in the offender's favor. Based on the foregoing, we conclude that Helmer's sentence should not have exceeded twenty-five years in total length. The case is therefore remanded to the superior court with directions to resentence Helmer in accordance with the foregoing. . Helmer's conviction was affirmed on all counts by this court in Helmer v. State, 608 P.2d 38 (Alaska 1980). . Helmer stole a large marijuana plant and several jars of marijuana leaves from a greenhouse in the victim's backyard approximately one hour before the rape and assault. . Helmer received the maximum sentence allowable for assault with intent to kill (Former AS 11.15.160). Helmer could have received an additional five years for rape (Former AS 11.-15.130(b)). For the crime of burglary within a dwelling, Helmer could have been sentenced to an additional fifteen years (Former AS 11.20.-080). . Gail Frank, an institution counsellor at the state prison, testified that: I think primarily — we—I think my first and greatest concern is that he be able to deal in a drinking society with not drinking. I have thought in terms of treatment programs, but I haven't discussed them particularly with him. I've been more concerned with contacting you, as his attorney, and with the psychologists that have seen him to express my concern and my interest in his being in more of a treatment therapy situation than in a long-term incarceration. . In Rust v. State, 582 P.2d 134 (Alaska 1978), we held that the sentencing court was not authorized to order that the defendant be placed in a particular facility or program. . For example, in Moore v. State, 597 P.2d 975 (Alaska 1979), the defendant pleaded guilty to one count of rape and one count of armed robbery. He was sentenced to 15 and 10 years, respectively, the sentences to run consecutively. The undisputed evidence indicated that Moore had on two occasions abducted women, and then raped and robbed them at gunpoint. At the time of the offenses Moore had just completed probation for his previous adult felony and was still on parole from juvenile authorities, resulting from one escape and three burglary charges. At sentencing, the following exchange occurred between the judge and Moore: THE COURT: . . . Certainly your background and history up to this point does not indicate that you are not entirely unfamiliar with the matters of probation, and the attempted rehabilitation of the people of the state of Alaska that they deemed you worthy of probation at one time, but apparently it did not take. What's wrong if anything? MR. MOORE: I'm — I just can't — I don't know how to live out there in the world. 597 P.2d at 976. In Newsom v. State, 512 P.2d 557 (Alaska 1973), the defendant was sentenced to 15 years for one count of rape. In reviewing this sentence, we stated: While a sentence of 15 years without eligibility for parole until one-third of the sentence is completed, is an unusually long period of incarceration, we do not find it excessive in this case. Appellant has a history of sex offenses, and has served lesser periods of incarceration as a juvenile apparently without measurable rehabilitation being accomplished. 512 P.2d at 563. Several other affirmances of lengthy rape sentences have involved defendants with prior records of sexual offenses. See Torres v. State, 521 P.2d 386 (Alaska 1974) (20-year sentence for offender with a previous conviction for lewd and lascivious acts to an 8-year-old and present offense committed while on appeal bond from a 10-year sentence); Newsom v. State, 533 P.2d 904 (Alaska 1975) (15-year sen-fence for offender with a previous conviction for attempted rape of a young girl). Cf. Nukapigak v. State, 562 P.2d 697 (Alaska 1977) (24-year-old sentenced to concurrent 6-year and 3-year terms, respectively, for rape and assault with a deadly weapon, prior record consisted of 3 misdemeanors). Other lengthy sentences have been justified on the basis of prior felony records or aggravating circumstances of the sexual assault. See Mallott v. State, 608 P.2d 737 (Alaska 1980) (30-year sentence with 5 suspended for the rape of a 3-year-old by an offender with a prior felony record); Lacy v. State, 608 P.2d 19 (Alaska 1980) (15-year sentence for rape in connection with an attack on another woman while kidnapping both of them); Tate v. State, 606 P.2d 1 (Alaska 1980) 15 suspended for the rape of a 3-year-old by an offender who was out on bail at the time of the offense and had a lengthy prior record); Wickstrom v. State, 603 P.2d 908 (Alaska 1979) (3 concurrent 15-year terms for an attack on a woman involving forced vaginal rape, anal rape, and fellatio). . It is clear from remarks made at sentencing that the superior court placed little emphasis on Helmer's age or background: This is his first felony conviction, this is his first conviction of any kind. And ordinarily that should militate in his favor, that he's gone through this period of his life without problems with the law. It does not in this case. Certainly, it would — it does in some respects, because the sentence would be more enhanced if there was evidence of prior conduct like this.

11621660

Shelaine M. THOMPSON, Appellant, v. UNITED PARCEL SERVICE, Appellee

Thompson v. United Parcel Service

1999-02-05

No. S-8376

684

691

975 P.2d 684

975

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:03:05.874934+00:00

CAP

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

Shelaine M. THOMPSON, Appellant, v. UNITED PARCEL SERVICE, Appellee.

Shelaine M. THOMPSON, Appellant, v. UNITED PARCEL SERVICE, Appellee. No. S-8376. Supreme Court of Alaska. Feb. 5, 1999. Charles W. Coe, Anchorage, for Appellant. Joseph A. Pollock and Shelby Nuenke-Davison, Davison & Davison, Inc., Anchorage, for Appellee. Before MATTHEWS, Chief Justice, COMPTON, EASTAUGH, FABE, and BRYNER, Justices.

4196

26053

OPINION FABE, Justice. I. INTRODUCTION Shelaine M. Thompson left her full-time job as a cargo handler for MarkAir when it went bankrupt. She started working for United Parcel Service (UPS), which classified her, like all UPS air rampers, as a part-time employee. After only two weeks at UPS, Thompson injured her knee while working. Alaska Statute 23.30.220 contains a formula for determining workers' compensation awards based on the prior work history of the injured employee. Believing it unfair to compensate Thompson based on prior full-time work since UPS classified her as part-time, the Aaska Workers' Compensation Board deviated from the statute and lowered Thompson's disability award. Because UPS did not show that application of the statutory formula was arbitrary and unfair as applied to Thompson, we reverse and remand to the Board for redetermination of Thompson's award. II. FACTS AND PROCEEDINGS Shelaine M. Thompson worked full-time as an air cargo handler for MarkAr in 1993 and 1994. During those years she earned an annual salary of $25,050.59 and $28,142.08, respectively, including overtime. When Mar-kAir declared bankruptcy in 1995, Thompson began working for UPS in a permanent part-time hourly position as an air ramper earning $8.00 an hour. Al UPS employees, with the exception of management and truck drivers, are classified as permanent part-time employees; they receive full-time benefits but generally work five-day work weeks averaging between three hours and four and a half hours each day. UPS employees may work a double shift and occasionally work over eight hours a day — enough to qualify for overtime pay. But an employee who "double shifts" is guaranteed neither overtime nor an eight-hour day. The availability of second shifts is determined by seniority. Thompson maintained that she intended to work as many double shifts as possible in order to sustain a salary comparable to the one she received at MarkAr. She also investigated obtaining additional part-time employment; she applied for jobs at the United States Postal Service and Aaska Arlines. Because UPS could not guarantee full-time hours, many workers on Thompson's shift similarly worked double shifts, other part-time jobs, or both. On August 3, 1995, only two weeks after starting work at UPS, Thompson injured her knee when her leg fell through the grating of an aircraft she was unloading. Although Thompson's hours were not restricted for medical reasons, she was released back to work on August 15 with instructions that she perform light duty for three weeks. During the two weeks prior to the accident, Thompson spent one full week in training but still managed to double shift enough to earn overtime on two occasions during the second week. After the accident, Thompson continued working at UPS until December 1, 1995, but in a less physically demanding position. In the months following the accident, Thompson did some double shifting but only managed to qualify for overtime two more times, both while working light duty. According to Thompson, her physician told her to work at her own pace and restricted her from working on her knees, as required of cargo handlers working in the bellies of cargo jets. Thompson attended a training course at Alaska Airlines but was never offered a position there; she claims this is because she was no longer capable of performing the work. She was offered a position with the Postal Service, but the offer was withdrawn when a Postal Service doctor discovered Thompson's knee injury. In December 1995 Thompson voluntarily left UPS for personal reasons unrelated to her injury. On February 20, 1996, Thompson had arthroscopic surgery on her knee. She was unemployed and sought no work between the time she left UPS and had the surgery. After the surgery, Thompson remained unemployed until switching professions and beginning work for GCI as a warehouse specialist on May 1. UPS paid Thompson's medical and rehabilitation bills and Temporary Total Disability (TTD) benefits while she recovered from surgery — a seven-week period running from February 20 to April 9. UPS calculated the TTD benefits to be $154 a week for a total of $1,100, based on Thompson's total gross earnings at UPS. On February 26, 1996, Thompson filed an Application for Adjustment of Claim to increase her compensation rate to reflect her full-time earnings at MarkAir. UPS controverted Thompson's claim. The parties 'differed as to how to interpret AS 23.30.220(a), the statute governing the calculation of the TTD benefits. The Workers' Compensation Board heard the matter, including Thompson's claim for attorney's fees and costs, on September 17, 1996. Thompson argued that under the 1995 amendments to the governing statute, the compensation rate should have been based on her best thirteen weeks of the fifty-two weeks prior to the injury. In the alternative, she argued the same amount would be reached using the old version of AS 23.30.220(a)(1). That calculation would incorporate salary from MarkAir and would have reflected her intention to work double shifts and seek part-time work elsewhere to supplement the part-time salary that all UPS workers receive. Under this measure, Thompson calculated her weekly gross earnings to be $531.92. UPS contended that, according to Gilmore v. Alaska Workers' Compensation Board, applying § 220(a)(1) to Thompson would be unconstitutional because the award would not be fair to both employee and employer. UPS argued that basing the compensation rate on Thompson's MarkAir full-time salary when she only, worked part-time at UPS would be unfair. Thus UPS urged the Board to use the alternative method of calculating the TTD rate under § 220(a)(2) — gross earnings at time of injury. Under that measure, UPS calculated Thompson's weekly gross earnings to be $181, yielding a TTD benefit of $154. The Board agreed with UPS, finding the differences in these measures to be substantial and holding that Thompson's calculation of $531.92 did not accurately reflect her future earning potential: [Ajfter the period to which the AS 23.30.220(a)(1) formula applies, the employee changed from working full-time to working part-time. We find double shifting was the exception more than the rule.... [T]he double shift work went to employees on a seniority basis, and as a new hire, [ ] the employee was not part of that group. Also [the UPS employee supervisor] reviewed the employee's records and found she only worked double shift[s] on four occasions. After examining the nature of Thompson's work and work history, the Board adopted UPS's calculation under § 220(a)(2), concluding: As we found previously, after the employee left employment with Mark Air, she went from full-time to part-time work for a period of approximately 20 weeks. Whether this change was brought about by economic factors or the employee's desires, it reflects that during the period of disability (February 20, 1996 — April 10, 1996), it would have been highly unlikely the employee would have worked full-time with the earnings she previously made with MarkAir. Because it denied Thompson's claim for a TTD rate increase, the Board also denied and dismissed Thompson's claims for attorney's fees and costs. Thompson appealed to the superior court, which affirmed the Board's denial of a TTD rate increase. Thompson appeals. 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. In reviewing an agency's factual findings, we employ the "substantial evidence" test. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The Board's decision need not be the only possible solution to the problem, for it is not the function of the court to reweigh the evidence or choose between competing inferences, but only to determine whether such evidence exists.[ ] When an agency decision involves expertise regarding either complex subject matter or fundamental policy formulation, this court defers to the decision "so long as it is reasonable, supported by the evidence in the record as a whole, and there is no abuse of discretion." The substitution of judgment test is "used for questions of law where no agency expertise is involved." This is especially true in the context of "statutory interpretation or other analysis of legal relationships about which courts have specialized knowledge and experience." B. The Version of AS 23.30.220(a) in Effect at the Time of the Injury Applied to Thompson. Under AS 23.30.185, TTD benefits are calculated by taking eighty percent of an injured employee's "spendable weekly wages." Alaska Statute 23.30.220(a), defining spendable weekly wages, is the substance of this appeal. A threshold question is whether we apply the 1995 amendments, effective one month after Thompson was injured, or the 1988 version of AS 23.30.220(a), the law in effect at the time of the injury. Thompson argues that we should apply the 1995 amended version; UPS urges that we look to the law in effect when Thompson was injured. We presume that statutes only have prospective effect "unless a contrary legislative intent appears by express terms or necessary implication." We have previously applied the version of AS 23.30.220 that existed at the time of injury, despite subsequent amendments. And since the 1995 amendments to AS 23.30.220 evidence no intent that the provision be applied retrospectively, the Board has applied the 1988 version of AS 23.30.220(a) to cases where the injury occurred — like Thompson's — prior to September 4, 1995. We see no reason to disagree with the Board's rulings. Thus, the Board correctly determined that the applicable law was the version of AS 23.30.220 in effect at the time of Thompson's injury. C. Under Gilmore, a Party Must Show Substantial Evidence that Past Wages Are Inaccurate Predictors of Losses from Injury in Order to Justify Deviating from AS 23.30.220(a)(1). UPS reads Gilmore v. Alaska Workers' Compensation Board to mean that "the Board was required to determine what was fair, both as to the employee and the employer." Because the Gilmore decision rested on principles of constitutional law, we review its interpretation under a substitution of judgment standard. We decline to adopt the broad reading of Gilmore advocated by UPS. Gilmore concerned the application of AS 23.30.220(a) to an employee who worked for only thirty-nine weeks in the one hundred weeks prior to his injury. We found in Gilmore that AS 23.30.220(a) violated the equal protection clause of the Alaska Constitution. We noted that the gross weekly wage determination method of AS 23.30.220(a) creates large differences in compensation between similarly situated injured workers, bears no relationship to the goal of accurately calculating an injured employee's lost wages for purposes of determining his or her compensation, is unfair to workers whose past history does not accurately reflect their future earning capacity, and is unnecessary to achieve quickness, efficiency, or predictability.[ ] But Gilmore held that AS 23.30.220(a) was unconstitutional as applied, not facially unconstitutional. We noted that "section 220(a) may be applied constitutionally in a number of circumstances, for example, where an injured worker has had the same occupation for all of the past two calendar years." Gilmore's case was not such a circumstance. If he had worked either more or less in the two calendar years preceding his injury, his award would have been substantially higher than the amount he received under the AS 23.30.220(a) formula. In order to determine whether AS 23.30.220(a) could be constitutionally applied to a particular employee, Gilmore focused on the predictability of past wage levels. Accordingly, the first question under Gilmore is not whether an award calculated according to AS 23.30.220(a)(1) is "fair." Rather, it is whether a worker's past employment history is an accurate predictor of losses due to injury. UPS is correct, as a general matter, that if past wage levels have no rational tendency to show earning capacity, application of the AS 23.30.220(a)(1) formula may be unfair to either employer or employee. But where past wage levels are accurate predictors, the Board must apply the statutory formula. The decision to depart from the statute must be based on substantial evidence supporting the conclusion that past wage levels will lead to an irrational workers' compensation award. The Board erred here when it conducted a generalized fairness inquiry rather than asking whether Thompson's past earnings could accurately be used to determine what she would have earned had she not been injured. The Board first determined that there was a "substantial difference" between Thompson's award under AS 23.30.220(a)(1) and her gross weekly earnings at the time she was injured. The Board concluded that, solely due to the disparity, "computation of GWE under the formula does not accurately reflect the employee's future earning capacity" and then deviated from the statutory formula. This analysis puts the cart before the horse; the disparity is only relevant if past wages do not accurately predict future earning potential. The disparity does not per se indicate a lack of predictive value. In fact, a primary purpose of our workers' compensation laws is to predict accurately what wages would have been but for a worker's injury. In Johnson v. RCA-OMS, Inc., we explained that under past versions of the statute at issue here, the "entire objective of wage calculation is to arrive at a fair approximation of claimant's probable future earning capacity." We reiterated this theme in Gilmore with regard to the 1988 version of the statute involved in this case when we quoted Johnson with approval. D. The Board Lacked Substantial Evidence to Depart from the Statutory Formula in Determining Thompson's Award. Because UPS seeks deviation from the statutory formula in the calculation of Thompson's disability award, UPS carries a heavy burden. UPS must show that the application of AS 23.30.220(a)(1) is irrational as a measure of earning capacity. Since the question of the reliability of Thompson's past work history as a predictor is factual in nature, we review the issue under the substantial evidence test, viewing whether the evidence relied upon was substantial in light of the record as a whole. The Board here failed to consider several crucial facts in its determination that Thompson's award should not be calculated under AS 23.30.220(a)(1). Although the Board accurately noted that Thompson had recently moved from full-time to part-time work, it treated this decision as indicative of an intent to make a lifestyle change. Yet despite the Board's assertion that Thompson may have switched to part-time employment due to her own desire, all the evidence indicates that Thompson moved to a part-time position only because her previous employer went out of business and the only positions at UPS for workers in her job category were classified as part-time. Rather than earn only a part-time wage, she intended to work double shifts in order to obtain the functional equivalent of full-time work. Thompson testified that she wanted to "double shift every day to try to make a 40-hour week, so that . I would be able to . compensate from going from a higher-paying job." Alternatively, Thompson intended to obtain other part-time cargo handling work to make up the difference between her MarkAir salary and that at UPS. These intentions were frustrated only by her injury. Thompson completed a training course at Alaska Airlines but could no longer perform the work after the accident. She was offered a job with the Postal Service but could not take it when a Postal Service physical examination revealed her recent knee injury. And since moving to a desk job at GCI, Thompson has continued to work full-time, including overtime. The Board had no contrary evidence before it. Thompson, quite simply, is not the worker we hypothesized in Gilmore's footnote 13 when we stated that the statutory formula might overeompensate a worker who recently moved from full-time to part-time work. The Board declined to give weight to Ms. Thompson's intent to double shift because "double shifting was the exception more than the rule" and because it was allocated on a seniority basis, placing Thompson at the end of the line for availability. But the Board made no mention in its decision of Thompson's intent to work in another part-time job along with her work at UPS. UPS urges that reliance on Thompson's intentions is "far too speculative and had little correlation to the existing factual circumstances." We have recognized, however, that "intentions as to employment in the future are relevant to a determination of future earning capacity" in determining proper compensatory awards. Moreover, the Board seems to have used Thompson's lack of double shifting after her injury as a factor in determining her earning capabilities. The Board found that UPS's employee relations supervisor "reviewed the employee's records and found she only worked double shift on four occasions." But this analysis fails to account for the fact that Thompson was injured after only two weeks at UPS, one of which was spent in training. Limited working hours following injury are not particularly relevant to a determination of a worker's probable work patterns had no injury been sustained. In light of the fact that the Board refused to consider Thompson's supplemental part-time job options and appeared to use her lack of overtime pay following the injury to determine her earning potential, we cannot say that there exists "substantial evidence in light of the whole record that a reasonable mind might accept as adequate to support the board's conclusion." Accordingly, we hold that the Board lacked the proper evi-dentiary basis to justify its departure from the statutory formula. UPS has not met its burden of showing that application of subsection (a)(1) inadequately predicted Thompson's probable wages had she not been hurt on the job. E. Attorney's Fees Because we reverse, Thompson is entitled to receive reasonable attorney's fees and legal costs pursuant to AS 23.30.145. IV. CONCLUSION The Board was correct to apply the version of AS 23.30.220(a) in effect at the time of the injury. But its determination that Thompson's past wages were an insufficiently accurate predictor of the losses caused by her injury was unsupported by substantial evidence, and thus the Board should not have deviated from the statutory formula. We REVERSE and REMAND to the Board to award Thompson compensation calculated under the formula in AS 23.30.220(a)(1) as well as reasonable attorney's fees and costs. . At the time Thompson was injured, AS 23.30.220 read in relevant part: (a) The spendable weekly wage of an injured employee at the time of an injury is the basis for computing compensation. It is the employee's gross weekly earnings minus payroll tax deductions. The gross weekly earnings shall be calculated as follows: (1) the gross weekly earnings are computed by dividing by 100 the gross earnings of the employee in the two calendar years immediately preceding the injury; (2) if the employee was absent from the labor market for 18 months or more of the two calendar years preceding the injury, the board shall determine the employee's gross weekly earnings for calculating compensation by considering the nature of the employee's work and work history, but compensation may not exceed the employee's gross weekly earnings at the time of the injury.... . Legislative changes to AS 23.30.220 became effective September 4, 1995, about a month after Thompson's injury. The statute now reads in relevant part: (a) Computation of compensation under this chapter shall be on the basis of an employee's spendable weekly wage at the time of injuiy. An employee's spendable weekly wage is the employee's gross weekly earnings minus payroll tax deductions. An employee's gross weekly earnings shall be calculated as follows: (1) if at the time of injuiy the employee's earnings are calculated by the week, the weekly amount is the employee's gross weekly earnings; (2) if at the time of injury the employee's earnings are calculated by the month, the employee's gross weekly earnings are the monthly earnings multiplied by 12 and divided by 52; (3) if at the time of injury the employee's earnings are calculated by the year, the employee's gross weekly earnings are the yearly earnings divided by 52; (4) if at the time of injuiy the (A) employee's earnings are calculated by the day, hour, or by the output of the employee, the employee's gross weekly earnings are the employee's earnings most favorable to the employee computed by dividing by 13 the employee's earnings, not including overtime or premium pay, earned during any period of 13 consecutive calendar weeks within the 52 weeks immediately preceding the injury; (B) employee has been employed for less than 13 calendar weeks immediately preceding the injury, then, notwithstanding (1) — (3) of this subsection and (A) of this paragraph, the employee's gross weekly earnings are computed by determining the amount that the employee would have earned, not including overtime or premium pay, had the employee been employed by the employer for 13 calendar weeks immediately preceding the injury and dividing this sum by 13; (5) if at the time of injury the employee's earnings have not been fixed or cannot be ascertained, the employee's earnings for the purpose of calculating compensation are the usual wage for similar services when the services are rendered by paid employees; (7) when the employee is working under concurrent contracts with two or more employers, the employee's earnings from all employers are considered as if earned from the employer liable for compensation. . ($25,050.59 + $28.142.08)/! 00. . 882 P.2d 922 (Alaska 1994). . UPS used the following calculation: ($3,570.72/138) x 7 — (income earned/# days worked) x (seven days in a week). . See Handley v. State, Dep't of Revenue, 838 P.2d. 1231, 1233 (Alaska 1992) (citation omitted). . lager v. State, 537 P.2d 1100, 1107 (Alaska 1975). . Interior Paint Co. v. Rodgers, 522 P.2d 164, 170 (Alaska 1974) (footnotes and internal citation omitted). . See Ellis v. State, Dep't of Natural Resources, 944 P.2d 491, 493 (Alaska 1997) (quoting Kodiak W. Alaska Airlines, Inc. v. Bob Harris Flying Serv., Inc., 592 P.2d 1200, 1203 n. 7 (Alaska 1979)). . Bruner v. Petersen, 944 P.2d 43, 47 n. 5 (Alaska 1997) (citation omitted). . Earth Resources Co. v. State, Dep't of Revenue, 665 P.2d 960, 965 (Alaska 1983) (quoting Kelly v. Zamarello, 486 P.2d 906, 916 (Alaska 1971)). . Pan Alaska Trucking, Inc. v. Crouch, 773 P.2d 947, 948 (Alaska 1989). . See Phillips v. Houston Contracting, Inc., 732 P.2d 544, 545-46 (Alaska 1987); Johnson v. RCA-OMS, Inc., 681 P.2d 905, 906 & n. 2 (Alaska 1984). . See, e.g., Reiter v. C.-Express Moving & Storage, 1996 WL 444404 at *3 (Alaska Work.Comp.Bd. May 9, 1996). . 882 P.2d 922 (Alaska 1994). . See Bruner v. Petersen, 944 P.2d 43, 47 n. 5 (Alaska 1997); Earth Resources Co. v. State, Dep't of Revenue, 665 P.2d 960, 965 (Alaska 1983) (quoting Kelly v. Zamarello, 486 P.2d 906, 918 (Alaska 1971)). . Gilmore, 882 P.2d at 929. . Id. at 930 n. 17. . See id. at 925 n. 8. . 681 P.2d 905 (Alaska 1984). . Id. at 907 (quoting 2 Larson, The Law of Workmen's Compensation § 60.11(d) at 10-564 (1983)); see also State Dep't of Transp. & Pub. Facilities v. Gronroos, 697 P.2d 1047, 1049 (Alaska 1985). . Gilmore, 882 P.2d at 927. . See lager v. State, 537 P.2d 1100, 1107 (Alaska 1975). . See Delaney v. Alaska Airlines, 693 P.2d 859, 863 & n. 2 (Alaska 1985) (citing Keiner v. City of Anchorage, 378 P.2d 406 (Alaska 1963)), overruling on other grounds recognized in Yahara v. Construction & Rigging, Inc., 851 P.2d 69, 72 (Alaska 1993). . See 882 P.2d at 928 n. 13. Indeed, that footnote refers to State Department of Transportation & Public Facilities v. Gronroos, 697 P.2d 1047 (Alaska 1985), a case in which we overturned the Alaska Workers' Compensation Board's award of compensation based on year-round wage calculations for a seasonal worker. See id. at 1049. Unlike Thompson, Gronroos "found that the seasonal job was ideal for his circumstances" because it "supplemented his retirement income, yet permitted him vacation time in Hawaii." Id. at 1048. This is the type of situation in which a move to part-time work justifies a finding that past earnings are not indicative of future earning potential; Thompson's situation stands in marked contrast. .Gronroos, 697 P.2d at 1049 n. 2 (citing Vetter v. Alaska Workmen's Compensation Board, 524 P.2d 264, 266 (Alaska 1974)). . This finding of fact, as well as being misleading, is also inaccurate. In fact, the UPS supervisor testified that Thompson double shifted enough to lead to four overtime periods, not four double shifts. Since a worker in Thompson's position would work only between 15 and 22.5 hours a week without double shifting, and overtime is work over eight hours a day (forty hours a week), this is a significant difference. To the extent that this particular finding is the basis for the Board's holding, then, that holding is completely unsupported by the evidence. . Delaney v. Alaska Airlines, 693 P.2d 859, 863 (Alaska 1985), overruling on other grounds recognized in Yahara v. Construction & Rigging, Inc., 851 P.2d 69, 72 (Alaska 1993).

11616080

Wayne E. NICKERSON, Appellant, v. UNIVERSITY OF ALASKA ANCHORAGE, Appellee

Nickerson v. University of Alaska Anchorage

1999-03-26

No. S-8269

46

54

975 P.2d 46

975

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:03:05.874934+00:00

CAP

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

Wayne E. NICKERSON, Appellant, v. UNIVERSITY OF ALASKA ANCHORAGE, Appellee.

Wayne E. NICKERSON, Appellant, v. UNIVERSITY OF ALASKA ANCHORAGE, Appellee. No. S-8269. Supreme Court of Alaska. March 26, 1999. Wayne E. Nickerson, pro se, Seward. Mark E. Ashburn, Ashburn & Mason, Anchorage, for Appellee. Before: MATTHEWS, Chief Justice, COMPTON, EASTAUGH, FABE, and BRYNER, Justices.

4316

28515

OPINION PER CURIAM I. INTRODUCTION Wayne Nickerson, a former graduate student at the University of Alaska Anchorage, appeals the University's decisions to remove him from an advanced teaching practicum and to dismiss him from the special education endorsement program. The primary questions in this case concern whether the University complied with its own handbook and course catalog and whether the University's dismissal of Nickerson satisfied due process. We conclude that the University complied with its own internal procedures, but remand for further findings as to whether the University comported with due process by giving Nickerson proper notice prior to his dismissal. II. FACTUAL AND PROCEDURAL BACKGROUND A. Factual Background In July 1994 Wayne Nickerson applied for admission to the University of Alaska Anchorage's Teacher Certification Program in Special Education. Nickerson was conditionally admitted to the graduate level certification program in December 1994. In October 1995 Nickerson applied for placement in an advanced practicum for the 1996 spring semester. The practicum is a ten-week supervised, collaborative exchange between the University and a local school district. Practicum students are supervised by both a host teacher in the local school district and a University supervisor. Students receive daily feedback from the host teacher and weekly visits from the University supervisor. The practicum is the culminating experience for students seeking an endorsement in special education. Admission into this final phase of professional preparation is a faculty decision which is separate from entry into the graduate program. Final decisions on the practicum site and host teacher aré made by the school district and University faculty, not by the practicum student. In February 1996 University faculty obtained a practicum placement for Nickerson at Colony High School in Palmer. Dr. Cable Starlings was Nickerson's University supervisor. Carol Boquard was Nickerson's host teacher at Colony High School. During Nickerson's practicum, Professor Starlings spoke with Nickerson on an ongoing basis and met with him and his host teacher on February 28 and again on March 13. During the March 13 meeting, Boquard reported that Nickerson "was having difficulty with [working] relationships and his role in the classroom," and "was not working effectively with his host teachers." Nicker-son told Starlings that he found his role difficult and that he had disagreed with his host teacher on a student discipline issue. Despite Nickerson's assurances that he had corrected his behavior, Nickerson was given suggestions for improving his relationship with his host teachers. First, Nickerson was encouraged to listen more willingly and not to defend his position so aggressively when confronted with criticism from host teachers. Second, Nickerson was told to solicit support from his host teachers to improve his ability to relate effectively to them. On Friday, March 15, Professor Starlings received an e-mail from Colony Principal Bill Harlow. Harlow indicated that he had spoken with Boquard that morning regarding the practicum. He indicated that Boquard had described a frustrating, unworkable situation stemming from Nickerson's failure to follow directions from her and from other teachers. Harlow informed Starlings that the "picture is a little more grim" than Starlings was led to believe during the March 13 conference, and suggested a meeting to try to "salvage something." Harlow stated that the "bottom line is that we" won't let kids, teachers, or the system be compromised." Professor Starlings promptly informed Dr. Alexander McNeill, Dean of the School of Education, of Harlow's message. Starlings noted that the message "clearly identifies a continuing problem with Mr. Nickerson's ability to effectively relate to supervisors." Starlings further informed McNeill that he would suspend Nickerson from his practicum as of Monday. Over the weekend, Starlings told Nickerson not to go to Colony on Monday or until such time as Starlings could meet with Colony personnel and investigate the matter. Professor Starlings met with Principal Harlow and Carol Boquard at Colony High School on the morning of Monday, March 18. During the meeting, Starlings determined that Boquard lacked trust in Nickerson, that Nickerson did not listen to or follow her suggestions, and that Nickerson resisted constructive criticism. Given the level of frustration expressed by Boquard, Starlings concluded that it was necessary to remove Nickerson from his practicum at Colony High School. On the afternoon of March 18, Starlings and Dean McNeill met with Nickerson to notify him of his removal from the practicum. Starlings relayed the substance of his meeting with Harlow and Boquard. Starlings stated that the decision was based upon Nickerson's unwillingness to identify and correct his difficulties in dealing with faculty. While Starlings acknowledged that Nicker-son may have a different interpretation of events, Starlings indicated that the situation brought to his attention was "not conducive to the learning of children and the work of teachers." On Wednesday, March 20, Professor Starlings sent Nickerson written notice of his removal from the practicum. Starlings informed Nickerson of his right to appeal his removal, citing the relevant page of the course catalog. Starlings also notified Nick-erson that he would bring the matter to the attention of the special education faculty, and request a decision on Nickerson's continued enrollment in the special education program. On the same day, March 20, Dean McNeill met with the chairperson of the department of teacher education and five faculty members of the special education program to evaluate Nickerson's status in the special education endorsement program. The committee reviewed Nickerson's record in the special education program at the University and Nickerson's experience during his practicum at Colony High School. The committee unanimously voted to dismiss Nickerson from the special education endorsement program. On Friday, March 22, Dean McNeill informed Nickerson of the faculty decision to dismiss him from the special education program. McNeill explained that the decision was based upon Nickerson's "repeated failure to respond to feedback regarding [his] general lack of professional behaviors," Nick-erson's "repeated hostile and abrasive interaction with faculty in special education," and Nickerson's "verbal abuse and intimidation of other professionals." Dean McNeill stated that such conduct fell short of the standards for retention in the special education program as set forth in the special education student manual. Dean McNeill informed Nickerson of his right to appeal the 'decision to the Vice Chancellor of Academic Affairs, and included a highlighted passage of the course catalog describing Nickerson's right to appeal. B. Procedural Background On March 20,1996, Nickerson sent a letter to Vice Chancellor Roberta Morgan requesting that he be reinstated to his special education practicum. After receiving Dean McNeill's letter dismissing him from the special education program, Nickerson sent Vice Chancellor Morgan a second letter on March 26, alleging that the special education department failed to follow its advanced practicum handbook and denied him due process. Nickerson requested that the University investigate and correct the situation. On March 27 Vice Chancellor Morgan met with Nickerson to allow him to explain the basis for his appeal. On April 2 Nickerson sent another letter to Vice Chancellor Morgan restating his allegations that the procedures in the advanced practicum handbook had not been followed, and that he had been denied due process when Dean McNeill held a special faculty meeting to discuss his dismissal from the special education program without allowing him to be present. Nickerson requested reinstatement to the special education endorsement program. On April 3 Vice Chancellor Morgan rendered her decision denying Nickerson's appeal. Dr. Morgan informed Nickerson that the proper avenue of appeal for his complaint about removal from his practicum was to the dean of the education department, and that the dean's decision on such a matter was final. Dr. Morgan denied Nickerson's appeal of his dismissal from the special education endorsement program, concluding that no evidence existed to indicate that Dean McNeill's actions were arbitrary and capricious, clearly erroneous, or based on unlawful discrimination. Dr. Morgan informed Nickerson that her decision was the final decision of the University on his appeal. She informed Nickerson that he could appeal her decision to superior court. Nickerson appealed Dr. Morgan's final decision to the superior court. That court rendered a final order on this administrative appeal on July 28, 1997. The superior court held that the University had followed sufficiently the advanced practicum handbook in removing Nickerson from his practicum, that Nickerson was not denied due process, and that Nickerson was not a public interest litigant for attorney's fees purposes. The superior court declared the University to be the prevailing party, and awarded the University partial attorney's fees in the amount of $1,301.47. Nickerson filed a timely notice of appeal. III. DISCUSSION A. Was Nickerson Afforded the Appropriate Procedure? Nickerson essentially presents three procedural points. First, Nickerson argues that the University failed to follow the advanced practicum handbook in removing him from his practicum. Second, Nicker-son argues that the University did not follow the course catalog in his academic appeal. Third, Nickerson argues that he was denied due process under the Alaska and United States Constitutions. 1. Did the University follow the provisions of the advanced practicum handbook in removing Nickerson from his practicum? Nickerson first contends that the University did not comply with the provisions of the advanced practicum handbook in removing him from his practicum. We disagree. Two provisions of the advanced practicum handbook are relevant. The first, entitled "When Problems Arise," identifies eight steps that the University supervisor should take in resolving conflicts in the practicum. These steps include scheduling a conference between the University supervisor, the host teacher, and the practicum teacher; identifying reasons for the conference and allowing each person to express his or her concerns; outlining a plan for resolving the conflict; and monitoring progress toward resolving the conflict. Professor Starlings's efforts to resolve the conflict between Nickerson and his host teachers substantially complied with these guidelines. Professor Starlings met with Nickerson and his host teacher, Carol Boquard, on February 28 and on March 13. At the March 13 conference, Boquard reported that Nickerson was "not working effectively with his host teachers." Nickerson informed Starlings that "he had a conflict with one female host teacher over a discipline issue with a student," but that he had corrected his behavior and that the relationship would improve. Nickerson was given two suggestions for ameliorating the problem: (1) he should be more willing to listen to his host teachers and not defend his position so aggressively when confronted with constructive criticism, and (2) he should solicit support from his host teachers to help improve his ability to relate to them effectively. The second handbook provision at issue, entitled "Denial of or Removal from Advanced Practicum," outlines various unacceptable activities that may necessitate removal from the practicum and the appropriate procedures in such an event. It provides that students may be removed from the practicum for, among other things, "insubordination." If the University supervisor or host teacher learns that the practicum teacher has allegedly engaged in unacceptable activities, he or she is required to notify the department chairperson. After notification, the chairperson is required to suspend the practicum, inform all parties of the suspension, and schedule a conference with the University supervisor and practicum teacher to investigate the allegation. If the investigation produces adequate evidence that the practicum teacher engaged in unacceptable activities, the practicum teacher is to be immediately withdrawn from the practicum. Once again, Professor Starlings substantially complied with requisite procedures in removing Nick-erson from the practicum. On March 15, only two days after his last conference aimed at resolving problems between Nickerson and his host teacher, Professor Starlings received an e-mail from Colony High School Principal Bill Harlow. Harlow notified Starlings that the "picture is a little more grim" than Boquard had portrayed, and indicated that Nickerson was creating a frustrating, unworkable situation for his host teachers because he did not follow their directions. Harlow stated that the "bottom line is that we won't let kids, teachers, or the system be compromised." After being notified of Nickerson's alleged pattern of disruptive insubordination, Starlings properly suspended Nickerson's practicum and investigated the charges. Starlings contacted Nickerson over the weekend and told Nickerson not to go to Colony on Monday or until such time as Starlings had met with Colony faculty. On March 18, Starlings met with Harlow and Boquard at Colony High School. Boquard relayed to Starlings that she felt Nickerson was resistant to constructive criticism, that he neither listened to nor followed her suggestions, and that she did not trust Nickerson. Starlings found adequate evidence of insubordination, and concluded that Nickerson's relationship with Boquard had deteriorated beyond the point of repair. Starlings and Dean McNeill subsequently informed Nickerson of the decision to remove him from the practicum. Starlings's actions in attempting to resolve the conflict between Nickerson and Boquard, and in removing Nickerson from the practicum, substantially complied with the advanced practicum handbook. Starlings's conduct was reasonable, and was not an abuse of discretion. 2. Did the University comply with the course catalog in Nickerson's academic appeal? Nickerson next argues that the University did not follow the appeals process in the course catalog after removing Nickerson from both his practicum and the special education program. This argument lacks merit. The course catalog provides that each student has the right to appeal academic actions. The student must submit a written request for appeal to the dean of the appropriate school within fifteen working days after notification of the action under review. If the action does not involve removal from a major program or loss of baccalaureate degree-seeking status, the student has no further right to appeal within the University, and the dean's decision is the final decision of the University. If the academic action does entail dismissal from a major program or loss of baccalaureate degree-seeking status, the student may appeal the dean's decision to the Vice Chancellor for Academic Affairs within three days. In such cases, the vice chancellor's decision is the final decision of the University, and the student has no further right to appeal within the University. The University complied with these procedures in the instant case. In notifying Nickerson of the decision to remove him from the practicum, Professor Starlings informed Nickerson that he had the right to appeal, and cited the relevant page of the course catalog outlining those rights. Nickerson, however, did not appeal his removal from his practicum to the dean of the education department, the appropriate and final forum for that academic appeal. In informing Nickerson of the faculty decision to dismiss Nickerson from the special education endorsement program, Dean McNeill instructed Nickerson that he had the right to appeal the dismissal to the Vice Chancellor of Academic Affairs, and enclosed a highlighted copy- of the appeals process from the course catalog. Nickerson ultimately sent two letters to Vice Chancellor Roberta Morgan requesting to be reinstated to the practieum, and one letter requesting his reinstatement to the special education endorsement program. In a March 27 meeting with Nicker-son, Vice Chancellor Morgan informed Nick-erson that his removal from the practieum and his removal from the special education endorsement program were two separate issues, and that she was only empowered to hear the appeal of his dismissal from the special education program. Thus, Nickerson properly appealed his dismissal from the program to Vice Chancellor Morgan. However, although informed by both Professor Starlings and Vice Chancellor Morgan that Dean McNeill was the proper channel for appealing his removal from the practieum, Nicker-son never made such an appeal. The University reasonably complied with the course catalog in Nickerson's academic appeal, and its actions do not constitute an abuse of discretion. 3. Was Nickerson denied procedural due process? With respect to Nickerson's third procedural point, it is a closer question whether Nickerson was denied procedural due process under the Fourteenth Amendment of the United States Constitution and article I, section 7 of the Alaska Constitution. As a threshold matter, due process rights are only implicated by a deprivation of liberty or property interests. Neither this court nor the United States Supreme Court has specifically held that dismissal from a graduate program constitutes deprivation of a liberty or property interest. Although we have not specifically identified the interest implicated, we have noted that "a school must provide minimal process before suspending or dismissing a student for disciplinary reasons, [but is not required] to provide process when the sanction does not interrupt the student's education." While we do not address the broader issue of whether a student has a property interest in continued enrollment in a graduate program, dismissal from a graduate program for allegedly "hostile," "abrasive," "intimidating," and "unprofessional" behavior sufficiently stigmatizes a person's professional reputation in a chosen career field to constitute an infringement of a liberty interest. It is a close question whether Nickerson received due process under the Alaska Constitution and the Fourteenth Amendment. In Horowitz, the Court distinguished academic dismissals, terminations for deficient scholastic performance, from disciplinary dismissals, terminations for violations of valid rules of conduct. Disciplinary dismissals require oral or written notice of the charges and, although not a formal hearing, an "informal give-and-take" between the student and administrative body which gives the student "the opportunity to characterize his conduct and put it in what he deems the proper context." Academic dismissals require less procedural protection. While the Court never articulated the minimum process required for academic dismissals, the Court indicated that due process is satisfied if (1) the school fully informs the student of its dissatisfaction with his performance and the danger that this deficiency poses to continued enrollment, and (2) the ultimate decision to dismiss is careful and deliberate. No hearing in any form is required for academic dismissals, however. To determine what protections therefore apply, we must first determine whether this case presents an academic or disciplinary dismissal. Although the University regarded the dismissal from the special education program as an academic action, the dismissal was in fact premised largely upon improper conduct, i.e., Nickerson's insubordination and inability to interact effectively with his host teachers and faculty. We observe that the United States Supreme Court itself has characterized suspensions based upon "disruptive and disobedient conduct" as disciplinary proceedings. While acknowledging that there is no clearly identifiable line between academic and disciplinary proceedings, we nevertheless recognize that school teachers must possess the ability to interact effectively with their students and colleagues, and, while less than tangible, such a skill may form an academic requirement necessary for satisfactory completion of a teaching program. Mindful that "the determination whether to dismiss a student for academic reasons requires an expert evaluation of cumulative information and is not readily adapted to the procedural tools of judicial or administrative decisionmaking," we accept the University's academic dismissal characterization on this close question. The next question is whether Nickerson was afforded due process. "Dismissal of a student for academic reasons comports with the requirements of procedural due process if the student had prior notice of faculty dissatisfaction with his or her performance and of the possibility of dismissal, and if the decision to dismiss the student was careful and deliberate." Our main concern in this case is whether Nickerson received adequate notice, and we focus on the timing and content of any notice provided Nickerson. We read Horowitz as requiring more than mere perfunctory notice rendered with or after the decision to dismiss. Instead, to be meaningful, a student must be given notice prior to the decision to dismiss that the faculty is dissatisfied with his performance and that continued deficiency will result in dismissal. If the University's interests are truly academic rather than disciplinary in nature, its emphasis should be on correcting behavior through faculty suggestion, coercion, and forewarning rather than punishing behavior after the fact. In close cases such as this one where much turns on the academic-disciplinary characterization, a university imposing sanctions for improper conduct cannot avoid the marginally greater protections for disciplinary proceedings, including an informal hearing, by labeling the dismissal academic rather than disciplinary. Although we decline to state a rigid time period by which notice of dissatisfaction and possible dismissal must predate the actual decision to dismiss, we hold that notice must precede the academic dismissal by a reasonable time so that a student has a reasonable opportunity to cure his or her deficient performance. Given the record before us, we are unable to discern whether Nickerson received adequate notice in this case. At a March 13 meeting with Boquard and Starlings, Nickerson learned that the faculty was dissatisfied with his performance, and he was given some suggestions for remedying the deficiency. The record is unclear, however, as to whether Nickerson was given notice that his continued behavior might result in his dismissal from the special education program. Given the events transpiring within the one-week period from March 15, the day when Professor Starlings received the e-mail from Principal Harlow, to March 22, the day when Dean McNeill notified Nickerson of the faculty decision to dismiss him from the special education program, it is questionable whether the University gave Nickerson proper notice. On March 15 Principal Harlow informed Professor Starlings that "the picture is a little more grim" than Starlings was led to believe during the March 13 conference. The e-mail implies that Boquard did not fully relay the extent of her dissatisfaction to Nickerson and Starlings on March 13. If Starlings was not fully informed as to the extent of the perceived problem, it seems likely that Nickerson was not sufficiently informed that his practicum was in jeopardy, and most significantly, that his continued enrollment in the program was at risk. In the record currently before us, the first notice regarding potential dismissal from the special education program was the March 20 letter from Professor Starlings confirming Nickerson's removal from the practicum. In that letter, Starlings, apparently for the first time, informed Nickerson that he was going to confer with the special education faculty on the matter, and request a decision on the status of Nickerson's continued enrollment in the special education program. On that same day, March 20, Dean McNeill met with faculty members of the special education program to evaluate Nickerson's status. The committee unanimously voted to remove Nickerson from the program. Thus, on the current record, it appears that Nickerson was given notice on March 13 that the faculty was dissatisfied with his behavior and performance in the practicum. But it is unclear whether Nickerson was informed that continued misbehavior might result in his dismissal from the program. Instead, the record suggests that Nickerson was first notified that his continued enrollment in the program was in jeopardy the same day that faculty decided to dismiss him from the program. If this is correct, Nicker-son was not afforded adequate notice prior to his academic dismissal. Given the state of the record, however, we remand for a determination as to whether Nickerson received adequate notice of the possibility of dismissal from the program. IV. CONCLUSION For the foregoing reasons, the judgment of the superior court is REVERSED and the case is REMANDED for further findings consistent with this opinion. Given this decision, the award of attorney's fees is VACATED. . This court independently reviews "the merits of an administrative determination. No deference is given to the superior court's decision when that court acts as an intermediate court of appeal." Bruner v. Petersen, 944 P.2d 43, 47 n. 5 (Alaska 1997) (citation omitted). The issues as to whether the University complied with the advanced practicum handbook and the course catalog involve the University's application of its own regulations. Accordingly, this court's review is limited to determining if the decision was "arbitrary, unreasonable, or an abuse of discretion." Szejner v. University of Alaska, 944 P.2d 481, 484 n. 2 (Alaska 1997). The issue as to whether the University procedures comported with due process involve a question of law not requiring agency expertise. Accordingly, this court uses the "substitution of judgment" test. Bruner, 944 P.2d at 47 n. 5. .Due to his failure to appeal directly to Dean McNeill, the University argues that Nickerson failed to exhaust his administrative remedies with respect to his removal from the practieum. Although he may not have fully exhausted his administrative remedies, Nickerson's failure to appeal to Dean McNeill may be excused. Dean McNeill participated to some degree in deciding to remove Nickerson from the practieum and in notifying Nickerson of the removal. An appeal to Dean McNeill may be regarded as futile under the circumstances. See State v. Beard, 948 P.2d 1376, 1379-80 (Alaska 1997). The superior court concluded that "any failure on the part of Nickerson to exhaust his administrative remedies is excused." Such a determination lies within the sound discretion of the trial court, Beard, 948 P.2d at 1380, and we find no abuse of discretion on the record before us. . See Board of Curators of Univ. of Missouri v. Horowitz, 435 U.S. 78, 82-84, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978); Szejner v. University of Alaska, 944 P.2d 481, 486 (Alaska 1997). . See Horowitz, 435 U.S. at 84-85, 98 S.Ct. 948; Szejner, 944 P.2d at 486-87. But see Harris v. Blake, 798 F.2d 419, 422 (10th Cir.1986). . Szejner, 944 P.2d at 486 (citation omitted). . See Horowitz, 435 U.S. at 86-91, 98 S.Ct. 948. . Id. at 85-86, 98 S.Ct. 948 (quoting Goss v. Lopez, 419 U.S. 565, 584, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975)). . See id. at 86-87, 98 S.Ct. 948. . See id. at 85. . See id. at 87 n. 3, 90, 98 S.Ct. 948. . Compare Goss v. Lopez, 419 U.S. 565, 569, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) with Horowitz, 435 U.S. at 85-86, 98 S.Ct. 948. . Horowitz, 435 U.S. at 90, 98 S.Ct. 948. . Schuler v. University of Minnesota, 788 F.2d 510, 514 (8th Cir.1986) (citing Horowitz, 435 U.S. at 85, 98 S.Ct. 948).

11625464

STATE of Alaska, Appellant, v. John ALOYSIUS, Appellee

State v. Aloysius

1999-02-19

No. A-6793

1096

1100

975 P.2d 1096

975

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T19:03:05.874934+00:00

CAP

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

STATE of Alaska, Appellant, v. John ALOYSIUS, Appellee.

STATE of Alaska, Appellant, v. John ALOYSIUS, Appellee. No. A-6793. Court of Appeals of Alaska. Feb. 19, 1999. Marcelle K. McDannel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellant. Michele Power, Angstman Law Office, Be-thel, for Appellee. Before COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

2172

13526

OPINION MANNHEIMER, Judge. John Aloysius was indicted on several counts of third-degree assault. The superior court dismissed the indictment because of irregularities in the presentation of telephonic testimony to the grand jury and because the prosecutor excused the wrong two alternate grand jurors when reducing the grand jury panel to eighteen. The State concedes that these irregularities occurred, but the State argues that these errors (whether considered separately or in combination) were not a legally sufficient reason for dismissing the indictment. We agree, and we therefore reinstate the indictment. Irregularities in Telephonic Testimony In order to preserve the secrecy of grand jury proceedings, Alaska Criminal Rule 6(u)(3) establishes several rules governing the presentation of telephonic testimony: . If a witness participates telephonieally in grand jury proceedings, after the witness is sworn, the prosecuting attorney shall require the witness to: (A) state the location from which' the witness is testifying; and (B) verify (i) that the witness' conversation cannot be overheard; (ii) that no extension for the telephone from which the witness is testifying is in use; and (in) that the witness will notify the grand jury immediately if any person can overhear the witness' testimony or if the witness becomes aware that an extension for the telephone enters use during the testimony. In Aloysius's case, nine witnesses testified before the grand jury, and all nine did so telephonieally. The prosecutor asked seven of these witnesses- to verify (1) that they were alone and (2) that no one else could hear what they were saying. However, the prosecutor asked these questions before these seven witnesses were sworn, not after (as the rule specifies). In addition, the prosecutor failed to admonish these witnesses to immediately inform the grand jury if that situation changed. Finally, the prosecutor completely failed to, comply with Rule 6(u)(3) when the other two witnesses testified. Under Alaska law, irregularities in grand jury procedure will not. invalidate an ensuing indictment unless the defendant shows that the irregularities affected either the testimony of a witness or the grand jury's decision to return the indictment. For example, in Hurn v. State , the prosecutor stepped into the grand jury room while the grand jury was deliberating — a violation of Criminal Rule 6(k). (The prosecutor wished to tell the grand jurors that their deliberations were audible in the adjoining hallway.) This court held that a violation of Rule 6(k) will invalidate an indictment only when the defendant demonstrates that the violation prejudiced the fairness of the grand jury proceedings. We further stated that, "to establish prejudice, the defendant must show that the policies behind the rule of grand jury secrecy have been undermined, or that the grand jury or a witness appearing before them has been unduly influenced by the irregularity." Before the enactment of Criminal Rule 6(u) in 1992 , irregularities in the presentation of telephonic testimony were analyzed under Rule 6(k). See Boggess v. State. In Boggess, the prosecutor failed to inquire whether a witness testifying by telephone was in fact alone when she testified. This court upheld the indictment because there was no indication that this omission had affected the witness's testimony or the grand jury's deliberations. Although Rule 6(u) now governs telephonic grand jury testimony, we will continue to apply the same analysis when we assess the legal effect of procedural irregularities in the taking of telephonic testimony. An irregularity in the taking of telephonic testimony at grand jury will not invalidate an ensuing indictment unless the defendant shows that the irregularity affected the testimony heard by the grand jury or affected the grand jury's deliberations. As explained above, the prosecutor made incomplete inquiries at the beginning of seven witnesses' testimony: the prosecutor asked these witnesses to affirm that they were alone and that no one else could hear what they were saying, but the prosecutor failed to instruct these witnesses to immediately inform the grand jury if that situation changed. This was a lapse from the rule, but there is no indication in the record that this lapse affected the witnesses' testimony. In fact, the record indicates that the first witness took affirmative action — moving into an office at the Holy Cross Mercantile — so that they would be in a room where no one else could hear their testimony. The record also reflects that each witness had to "go get" the next witness when they completed their testimony. Thus, the record fails to suggest that the prosecutor's lapse had any effect on grand jury secrecy or on the testimony of the various witnesses. Aloysius suggests that someone else might have heard one or more of the witnesses testify, either by walking in during the testimony or by picking up a remote telephone extension, but there is no evidence to support such speculation. Aloy-sius also suggests that, because the prosecutor asked the witnesses about their physical privacy before the witnesses were actually placed under oath, the witnesses may have felt free to give disingenuous answers to the prosecutor's inquiries. Again, there is nothing in the record to support such speculation. The violation of Rule 6(u) was more egregious with respect to the remaining two witnesses, for the prosecutor failed to ask these witnesses any of the preliminary questions required by the rule. Nevertheless, the record fails to demonstrate any reason to believe that these violations of Rule 6(u) prejudiced the grand jury proceedings. Finally, Aloysius suggests that, because all of the witnesses were gathered at the Holy Cross Mercantile building to give their testimony, witnesses who had already given their testimony may have spoken to other witnesses who were still waiting to testify. This claim has nothing to do with the fact that the witnesses were testifying by telephone. The same potential for inter-witness discussion exists whenever two or more grand jury witnesses gather together outside a grand jury room, waiting to give their testimony in person. We note, moreover, that grand jury witnesses are apparently free to reveal and discuss the grand jury testimony they have given. Criminal Rule 6(1 )(1) imposes a duty of secrecy upon judges, grand jurors, attorneys, interpreters, court clerks, and stenographers and transcribers. But the rule does not impose a duty of secrecy upon witnesses. In fact, subsection (3) of Rule 6(1) expressly declares that "[n]o obligation of secrecy may be imposed upon any person except in accordance with this rule". For these reasons, we conclude that the irregularities in taking the witnesses' telephonic testimony did not constitute a ground for dismissing the indictment. Excusal of the Two Alternate Grand Jurors Another grand jury irregularity occurred when the grand jurors were impaneled, before any testimony was received. Criminal Rule 6(d) states that a grand jury must have at least twelve members and no more than eighteen. When the prosecutor began presenting Aloysius's case, twenty grand jurors (including several alternates) were present. This meant that two of the alternates had to be excused in order to reduce the panel to eighteen. The prosecutor told the grand jurors: PROSECUTOR: Okay, I'm going to excuse [two of] the [alternate] grand jurors now. I guess we'll just — well, rather than go from the top, we should probably do something a little fairer and get the middle. [To the clerk] Okay, what are the . CLERK: Number 6 and Number 5 are in the middle. PROSECUTOR: Okay, we'll do those two. [Alternates] 5 and 6 can go. This procedure was flawed. Criminal Rule 6(f) declares that when alternate grand jurors are placed on the grand jury panel, they are to be impaneled "in the order in which they were designated". Thus, Rule 6(f) prohibited both the prosecutor's first plan (to excuse the two alternates at the top of the list) and the prosecutor's ultimate action (excusing two alternates from the middle of the list). The rule required the prosecutor to excuse the two alternates who were designated last — the ones who presumably appeared at the bottom of the list. Nevertheless, the record is fairly clear that the prosecutor was acting from ignorance of Rule 6(f) and was not attempting to manipulate the selection of alternates in order to obtain a favorable panel. As can be inferred from the excerpt of the proceedings quoted above, the prosecutor apparently did not know the identities of alternate grand jurors 5 and 6 when he announced that these two alternates were excused. After reviewing the record, the superior court concluded that the prosecutor had "acted in good faith". This finding is not clearly erroneous. In cases involving challenges to the composition of a grand jury, this court has ruled that a defendant must demonstrate prejudice from the irregularity before an indictment will be dismissed. In Harris v. State , several grand jurors were impaneled even though they resided beyond a fifty-mile radius of the grand jury site — a fact that should have disqualified them from the grand jury venire. We held that this error did not require dismissal of the indictment because "[t]here was no showing [of] any systematic exclusion of any class or group" from the grand jury venire, nor any showing that the irregular selection "prejudiced [the defendant] in any conceivable way." In Aloysius's case, the superior court found that the prosecutor acted in good faith, and there is no indication that the grand jury's consideration of the charges against Aloysius was affected by the irregular method of impaneling the grand jury alternates. We therefore conclude that this irregularity did not constitute a ground for dismissing the indictment. We reach this conclusion for a second reason as well. This court has recognized that unqualified grand jurors may nevertheless be de facto grand jurors whose acts remain legally valid. In State v. Roark , some alternate grand jurors served on the grand jury panel even though, through administrative error, these alternates had never taken the grand jury oath required by Criminal Rule 6(e)(1). This court held that the unsworn alternates were nevertheless de facto members of the grand jury, and thus the indict ments returned by that grand jury panel remained valid. In Aloysius's case, all of the alternate grand jurors were apparently qualified to serve and had taken the required oath. The sole irregularity lay in the fact that the prosecutor, acting in good faith, excused the wrong two alternates. Because of this mistake, the two alternates from the bottom of the list — that is, the two alternates who should have been excused pursuant to Rule 6(f) — were allowed to stay and serve on the grand jury panel. Under these circumstances, these two alternates should be deemed de facto grand jurors; their participation on the grand jury panel does not invalidate the acts of that panel. Conclusion Neither of the two irregularities in the grand jury process prejudiced the fairness of the proceedings. Because there was no prejudice to Aloysius, the superior court should not have dismissed the indictment. The decision of the superior court is REVERSED, the indictment is reinstated, and this case is remanded to the superior court for further proceedings on that indictment. .See Soper v. State, 731 P.2d 587, 591-92 (Alaska App.1987) (stating the general rule); see also Frink v. State, 597 P.2d 154, 161 (Alaska 1979) (noting that even when inadmissible evidence is presented to the grand jury, the ensuing indictment should not be dismissed unless the inadmissible evidence was probably significant to the grand jury's decision); Boggess v. State, 783 P.2d 1173, 1176 (Alaska App.1989) (holding that an indictment will stand despite a violation of Criminal Rule 6 unless the violation contributed to the return of the indictment or otherwise gave rise to unfair prejudice). . 872 P.2d 189 (Alaska App.1994). . See id. at 193. . Id. . See Supreme Court Order No. 1115. . 783 P.2d 1173, 1177 (Alaska App.1989). . See id. at 1177-78. . See Bobby v. State, 950 P.2d 135, 138 (Alaska App.1997) (the superior court's factual determinations will stand unless the defendant shows them to be clearly erroneous). . See Hampton v. State, 569 P.2d 138, 148-49 (Alaska 1977) (holding that the defendant's right to an impartial jury was not impaired when there was no common thread or similarity among the group of excluded jurors); Peterson v. State, 562 P.2d 1350, 1366 (Alaska 1977) (stating that "[s]o long as no group of citizens has been systematically excluded from the grand jury selection process, a conviction on an indictment which is otherwise sufficient will be upheld"). . 678 P.2d 397 (Alaska App. 1984), rev'd on other grounds, Stephan v. State, 705 P.2d 410 (Alaska 1985). . See Criminal Rule 6(c)(1). . Harris, 678 P.2d at 399. . 705 P.2d 1274 (Alaska App.1985). . See id. at 1279.

10360119

In the DISCIPLINARY MATTER INVOLVING Bryan SCHULER, Respondent

In the Disciplinary Matter Involving Schuler

1991-09-20

No. S-3986

138

145

818 P.2d 138

818

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:02:39.964286+00:00

CAP

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

In the DISCIPLINARY MATTER INVOLVING Bryan SCHULER, Respondent.

In the DISCIPLINARY MATTER INVOLVING Bryan SCHULER, Respondent. No. S-3986. Supreme Court of Alaska. Sept. 20, 1991. Bryan Schuler, pro se. Stephen J. Van Goor, Bar Counsel, Anchorage, for the Alaska Bar Ass’n. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

4625

29175

OPINION COMPTON, Justice. I. FACTUAL AND PROCEDURAL BACKGROUND Bryan E. Schuler, while employed as a District Attorney for the State of Alaska in Bethel, "enter[ed] the Alaska Commercial Company Store in Bethel, and plaee[d] several cassette tapes in a day-pack [he] was carrying. [He] did intend to leave the store without paying for them." Upon perceiving that store employees were observing him, Schuler abandoned the day-pack. He went home after a store employee told him not to return to the store. Later, Schuler was requested to come to the police station. After consultation with counsel, he declined to make a statement. A criminal complaint was filed against Schuler. It alleged that he did "unlawfully, knowingly, and with intent to appropriate and deprive the owner of merchandise, conceal about his person unpurchased merchandise valued in excess of $50.00 .a class A misdemeanor under AS 11.46.-220(a), (c)(2). Schuler entered a plea of no contest and was convicted of the offense. On December 4, 1987, imposition of sentence was suspended and Schuler was placed on probation until June 4, 1989, subject to the conditions that he maintain good behavior, that he continue with counselling as long as necessary, that he complete 100 hours of community service, and that he commit no violations of the law. Schuler has since successfully completed the terms of his probation, and the criminal case has been dismissed. On January 13, 1988, this court entered an order of interim suspension of Schuler from the practice of law pursuant to Alaska Bar Rule 26(a), on the ground that the conviction involved a serious crime under Alaska Bar Rule 26(b). We referred the matter to Alaska Bar Association Discipline Counsel for the initiation of a disciplinary proceeding. Interim suspension was to continue until final disposition of the matter. On December 26, 1989, Discipline Counsel and Schuler stipulated that the conviction warranted that Schuler be suspended from the practice of law for six months, and that he take and pass the Multistate Professional Responsibility Exam (MPRE). The stipulation was accepted by the Disciplinary Board, which in turn recommended that it be accepted by this court. We rejected the stipulation "on the grounds that [Schuler's] act appear[ed] to be a serious crime under the Model Standards, Standard 5.11(a), for which disbarment is generally appropriate." In the Disciplinary Matter Involving Bryan E. Schuler, No. S-3263 (July 12, 1989). We remanded the matter to the Board. Id. Discipline Counsel and Schuler thereafter entered a revised stipulation for discipline by consent, which again was accepted by the Disciplinary Board, and in turn recommended for acceptance by this court. The revised stipulation recommends a two-year suspension from the practice of law, effective January 13, 1988 (the date interim suspension was imposed), and requires that Schuler take and pass the MPRE within one year of this court's final order in this matter. Thereafter this court, sua sponte, requested the parties to provide it with statements "setting out all criminal and juvenile convictions, criminal complaints or arrests involving Mr. Schuler. The statement shall include appropriate dates and dispositions for each conviction, complaint, or arrest." In the Matter Involving Bryan E. Schuler, No. S-3986 (August 17, 1990). Responses from both Schuler and the Alaska Bar Association disclosed that in 1973, Schuler was convicted of petty larceny by the District Court for the State of Alaska. Upon receipt of this information, we again remanded the matter to the Disciplinary Board "so that the Disciplinary Board may reconsider its consent to the revised stipulation in light of respondent's 1973 conviction." On November 6, 1990 the Disciplinary Board filed its Determination on Reconsideration. In this document the Board advised that it "considered the 1973 shoplifting conviction of respondent. Because the 1973 conviction predates respondent's admission to the Bar and is relatively dated, the Board determined not to modify the stipulation." We now review that stipulation. II. APPROPRIATE SANCTION In determining the appropriate sanction to be imposed, we are not bound to accept the Board's recommendation, but may exercise our independent judgment. In re Buckalew, 731 P.2d 48, 51 n. 7 (Alaska 1986). In this matter we are "guided," but not bound, by the ABA Standards for Imposing Lawyer Sanctions (1986). See Burrell v. Disciplinary Bd., 777 P.2d 1140, 1143 (Alaska 1989); Buckalew, 731 P.2d at 52 ("[W]e will refer to the ABA Standards and methodology as an appropriate model for determining sanctions for lawyer misconduct in this state."). In determining proper sanctions, the ABA Standards provide for a test under which four questions are posed: (1) What ethical duty did the lawyer violate? (A duty to a client, the public, the legal system, or the profession?) (2) What was the lawyer's mental state? (Did the lawyer act intentionally, knowingly, or negligently?) (3) What was the extent of the actual or potential injury caused by the lawyer's misconduct? (Was there a serious or potentially serious injury?) (4) Are there any aggravating or mitigating circumstances? Buckalew, 731 P.2d at 52 (citing ABA Standards, Theoretical Framework, ABA/PNA at 01:805-06). These questions are addressed within a three-step methodology: The initial step requires that we answer the first three [questions] of the ABA test set forth above. Next, we must look to the ABA Standards to discern what sanction is recommended for the "type" of misconduct found in our initial inquiry. After determining the recommended sanction, we must ascertain whether any aggravating or mitigating circumstances exist which warrant increasing or decreasing the otherwise appropriate sanction. See, ABA Standards, Methodology, ABA/BNA at 01:803-04. Id. A. Step One: The Ethical Duties Violated, the Mental State of Schuler, and the Injury or Potential Injury. 1. Ethical duties Schuler entered a plea of no contest to, and was convicted of, a charge of concealment of merchandise, which required as one of its elements an "intent to deprive the owner . or . intent to appropriate." AS 11.46.220(a). Schuler admits that he placed the tapes in his day-pack "intending] to leave the store without paying for them." Such conduct violates both Disciplinary Rule (DR) 1-102(A)(3) and (4): "A lawyer shall not: . (3) Engage in illegal conduct involving moral turpitude [nor] (4) Engage in conduct involving dishonesty...." The duties violated by Schuler were ones owed to the public. "The public expects the lawyer to be honest and to abide by the law; public confidence in the integrity of officers of the court is undermined when lawyers engage in illegal conduct." (Citing, inter alia, DR 1-102(A)(3) and (4)). ABA Standards, Violations of Duties Owed to the Public, § 5.0, ABA/BNA at 01:828-29. 2. Mental state This part of the test requires a determination of Schuler's mental state with reference to his placement of the tapes into his day-pack. According to the ABA Standards, Schuler's mental state can be described in descending order of culpability as intentional, knowing or negligent. Schuler's conviction is conclusive proof of all of the elements of the crime for which he was convicted. See Chadwick v. State Bar, 49 Cal.3d 103, 260 Cal.Rptr. 538, 776 P.2d 240, 245 (Cal.1989) ("A criminal conviction, including a plea of guilty, is conclusive proof that the attorney committed all acts necessary to constitute the offense."). As noted above, one of those elements was an "intent to deprive the owner of . or . intent to appropriate" the tapes. AS 11.46.220(a) (emphasis added). For purposes of Alaska criminal law, "a person acts 'intentionally' . when the person's conscious objective is to cause [the proscribed] result." AS 11.81.900(a)(1). This definition is in "[a]ccord" with the ABA Standards' definition of intent. Buckalew, 731 P.2d at 53 n. 18. Therefore, Schuler's conviction is conclusive proof that he acted with intent as defined by the ABA Standards. 3. Injury or potential injury The ABA Standards define "injury" and "potential injury" as follows: "Injury" is harm to a client, the public, the legal system, or the profession which results from a lawyer's misconduct. The level of injury can range from "serious" injury to "little or no" injury; a reference to "injury" alone indicates any level of injury greater than "little or no" injury. "Potential injury" is the harm to a client, the public, the legal system or the profession that is reasonably foreseeable at the time of the lawyer's misconduct, and which, but for some intervening factor or event, would probably have resulted from the lawyer's misconduct. ABA Standards, Definitions, ABA/BNA at 01:807. To measure the injury, the standards require consideration of the type of duty violated. Id. at 01:806. As previously indicated, the duty here was one owed to the public. In light of Schuler's position as District Attorney, his commission of a crime undoubtedly undermined confidence in the legal profession. The public most certainly expects obedience to the law by those with authority to prosecute others for its violation. It undermines the foundations of our criminal justice system to uncover a public servant violating the very statutes he is entrusted with enforcing. By committing a crime, Schuler violated his oath of office as District Attorney for the State of Alaska, and weakened the moral authority of the state to condemn other violations of the criminal law. We therefore conclude that Schuler's misdemeanor theft caused "serious" injury under the relevant ABA Standards. B. Step Two: Initial Determination of Appropriate Sanction. In our initial reference of this matter to the Bar for disciplinary proceedings, we stated that Schuler's misconduct "appears to be a serious crime under the Model Standards, Standard 5.11(a), for which disbarment is generally appropriate." In the Disciplinary Matter Involving Bryan E. Schuler, No. S-3263 (July 12, 1989). Bar Counsel, however, maintains that Standard 5.11(b) controls, and contends that suspension rather than disbarment is the appropriate sanction for misdemeanor theft. Standard 5.11 provides as follows: Disbarment is generally appropriate when: (a) a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or (b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice. ABA/BNA at 01:829. It makes no difference to this case whether Schuler's misconduct is deemed to be "serious criminal conduct a necessary element of which includes . misappropriation, or theft" under subsection (a), or "any other intentional conduct involving dishonesty . that seriously adversely reflects on [his] fitness to practice" under subsection (b). Under either subsection, Standard 5.11 states that "[disbarment is generally appropriate." Id. It is worthy of note that the commentary to Standard 5.11 suggests that the authors' research focused on felony convictions. The commentary states that "most courts impose disbarment on lawyers who are convicted of serious felonies." ABA/BNA at 01:829. Bar Counsel argues that disbarment is an excessive sanction for misdemeanor theft when compared to this court's rulings in other disciplinary cases involving criminal convictions. It is also worthy of note that Schuler's conduct did not take place in connection with his official duties as District Attorney, or in connection with services performed in the practice of law. Nevertheless, on the basis of the undisputed facts, we conclude that the sanction of disbarment is the reference point from which we begin our analysis of aggravating and mitigating factors. In so concluding, we note not only Schuler's misdemean- or conviction while a member of the Bar, but also his misdemeanor shoplifting conviction prior to his admission to the Bar. C. Step Three: Aggravating and Mitigating Factors. "[A]fter making the initial determination as to the appropriate sanction, the court [should] then consider any relevant aggravating or mitigating factors." (Em phasis added); ABA Standards, Theoretical Framework, ABA/BNA at 01:807. Bar Counsel argues that none of the aggravating factors are present in Schu-ler's case. However, Bar Counsel believes that the following mitigating factors are present: § 9.32(a) absence of prior disciplinary record; (c) personal or emotional problems; (j) interim rehabilitation; (k) imposition of other penalties or sanctions; and (1) remorse. We agree with Bar Counsel's analysis. Other than the two footnoted grievances filed but found wanting, Schuler has no prior disciplinary record. His misconduct in regard to the present case would appear to be the product of a self-destructive motivation, rather than a theft for personal gain. We further note that Schuler has successfully completed the terms of his probation, has lost his job as District Attorney, and has demonstrated remorse for what he did. It is instructive to compare the facts in our most recent disciplinary case, Disciplinary Matter Involving West, 805 P.2d 351 (Alaska 1991), with the facts of Schuler's conduct. West involved the discipline of an attorney who had fraudulently notarized a signature which purported to be that of his deceased client when in fact the signature was forged by his deceased client's widow. The signature was made and notarized at the attorney's suggestion to facilitate collection of a settlement purportedly agreed upon by the client and the state, which had not been apprised of the client's death. The misconduct occurred in connection with services performed by West in the practice of law, for which he received a contingent fee. Based on a conclusion that West violated ABA Model Standards 5.11 and 5.12, we affirmed the Disciplinary Board's "determination that disbarment or suspension are generally appropriate sanctions given the nature of West's misconduct." West, 805 P.2d at 357-58. We then considered aggravating and mitigating factors. West's case, unlike Schu-ler's, involved several aggravating circumstances, one of which we considered "significant." Id. at 358. It also involved mitigating factors, including personal and emotional problems suffered by West and testimony as to West's good character and reputation. Notably absent from West's case, however, was any remorse, any effort to rectify the consequences of his misconduct, or the imposition of any other penalties or sanctions. Nevertheless, we rejected the recommendation of the Board in that case that West be suspended for two years and imposed only a ninety day suspension on West, though not without dissent. Id. at 360. When we announced in Buckalew that we would be guided by the ABA Standards for disciplining lawyers, we noted that in part those standards are explicitly designed to promote "consistence in the imposition of disciplinary sanctions for the same or similar offenses." Buckalew, 731 P.2d at 52 (quoting ABA Standards, Section 1.3, ABA/BNA at 01:809-10). While Schuler's misconduct may be viewed as more serious than West's, in that it did cause serious injury as defined by the ABA Standards, the mitigating factors present in Schuler's case are more numerous and more significant than those present in West's case. Based upon a consideration of all the above factors, we conclude that a sanction of not more than two years suspension and passage of the MPRE, as recommended by the Board, should be imposed on Schuler. III. CONCLUSION Schuler's misdemeanor theft constitutes a violation of disciplinary rules prohibiting illegal conduct involving moral turpitude, and conduct involving dishonesty. Compliance with these rules is a duty that all attorneys owe to the public. Schuler acted with criminal intent, the most culpable mental state according to the ABA Standards. Because Schuler's mis conduct directly and seriously demonstrated an unfitness to practice law, he caused "serious" injury or potential injury to public confidence as described in ABA definitions. Having considered the fact that Schuler's underlying misconduct involves his second conviction of intentional theft, and that his conduct as a member of the bar violated ABA Standard 5.11, we might ordinarily find disbarment to be the proper sanction. However, given the relevant mitigating factors in this record, we conclude that a significant period of suspension from the practice of law is indicated. We therefore hold that the stipulated and recommended sanction should be approved. The Revised Stipulation for Discipline is APPROVED. . In re Preston, 616 P.2d 1 (Alaska 1980), implies that misdemeanor theft involves moral turpitude. In discussing the interim suspension rule, Bar Rule 26 (then Rule 23), we stated: "Certain misdemeanors, dependent upon the moral turpitude of the attorney, are defined as serious crimes." Id. at 5 (emphasis added). Included in this list of serious crimes are felonies and lesser crimes, "a necessary element of which . involves . misappropriation [or] theft." Id. at 3 n. 3. Likewise, the Supreme Court of Oregon has held that "a misdemeanor conviction for the crime of theft is a conviction involving moral turpitude." In re Carstens, 683 P.2d 992, 996 (Or.1984). This is in accordance with other courts which have "defined moral turpitude as acts which evidence 'a fraudulent or dishonest intent.'" In re Wines, 135 Ariz. 203, 660 P.2d 454, 456 n. 4 (1983). See also Chadwick v. State Bar, 49 Cal.3d 103, 260 Cal.Rptr. 538, 776 P.2d 240, 245 (1989) ("Crimes which necessarily involve an intent to defraud, or dishonesty for personal gain . may establish moral turpitude."). . Conduct which results in a conviction of a serious crime pursuant to Alaska Bar Rule 26(b) is another independent ground for discipline. Alaska Bar R. 15(a)(1). . Similarly, Ethical Consideration 1-5 notes: Because of his position in society, even minor violations of law by a lawyer may tend to lessen public confidence in the legal profession. Obedience to law exemplifies respect for law. To lawyers especially, respect for the law should be more than a platitude. . ABA Standards, Theoretical Framework, ABA/BNA at 01:806 reads in part: The most culpable mental state is that of intent, when the lawyer acts with the conscious objective or purpose to accomplish a particular result. The next most culpable mental state is that of knowledge, when the lawyer acts with conscious awareness of the nature or attendant circumstances of his or her conduct both without the conscious objective or purpose to accomplish a particular result. The least culpable mental state is negligence, when a lawyer fails to be aware of a substantial risk that circumstances exist or that a result will follow, which failure is a deviation from the standard of care that a reasonable lawyer would exercise in the situation. . To hold otherwise would allow an attorney to relitigate his or her innocence in a disciplinary proceeding. See In re Kirschke, 16 Cal.3d 902, 129 Cal.Rptr. 780, 549 P.2d 548, 549 (1976). This is implicitly precluded by Alaska Bar Rule 26(f), which provides that in a proceeding following interim suspension for a serious crime "[t]he sole issue to be determined by the Hearing Committee will be the extent of the final discipline to be imposed." (Emphasis added). . Furthermore, by Schuler's own admission, he concealed the tapes in his day-pack "intend[ing] to leave the store without paying for them." . The following is a partial summary of pre-Buckalew cases relied on by Bar Counsel: In re Kernan, No. S-1390 (June 9, 1986) (disbarment for sale of marijuana, a felony): In re Pittman, Nos. S-929/1076 (December 19, 1985) (disbarment for assault in the third degree on a police officer, a felony); In re Preston, 616 P.2d 1 (Alaska 1980) (two-year suspension for conviction of distributing cocaine to a minor, a felony); In re Webb, 602 P.2d 408 (Alaska 1979) (disbarment for conviction of accessory after the fact to murder, a felony); In re Robson, 575 P.2d 771, 782 (Alaska 1978) (one-year suspension for aiding and abetting receipt of ammunition by a convicted felon, a felony, and for violation of order temporarily suspending attorney from practice); Alaska Bar Ass'n v. Benton, 431 P.2d 146 (Alaska 1967) (disbarment for conviction of grand larceny, a felony). . On September 6, 1973, Schuler was charged with petty larceny, a violation of former AS 11.20.140, the complaint alleging that he did "unlawfully take, steal and carry away, with intent to permanently deprive the owner thereof, . one (1) Canon Camera Case, _" On September 10 he pleaded no contest to the charge and was fined $50. He was then nineteen years old. This offense was disclosed by Schuler on his application for admission to the Alaska Bar Association and on his application for a superior court judgeship that became vacant in Bethel in 1986, shortly before the incident discussed herein took place. Schuler was one of three applicants, out of five who applied for the judgeship, found qualified for the position by the Alaska Judicial Council. . Aggravating factors "may justify an increase in the degree of discipline to be imposed," and include: (a) prior disciplinary offenses; (b) dishonest or selfish motive; (c) a pattern of misconduct; (d) multiple offenses; (e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; (f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process; (g) refusal to acknowledge wrongful nature or conduct; (h) vulnerability of victim; (i) substantial experience in the practice of law; (j) indifference to making restitution. ABA Standards, § 9.21-.22, ABA/BNA at 01:841-42. Mitigating factors "may justify a reduction in the degree of discipline to be imposed," and include: (a) absence of a prior disciplinary record; (b) absence of a dishonest or selfish motive; (c) personal or emotional problems; (d) timely good faith effort to make restitution or to rectify consequences of misconduct; (e) full and free disclosure to disciplinary board or cooperative attitude toward proceedings; (f) inexperience in the practice of law; (g) character or reputation; (h) physical or mental disability or impairment; (i) delay in disciplinary proceedings; (j) interim rehabilitation; (k) imposition of other penalties or sanctions; (?) remorse; (m) remoteness of prior offenses. ABA Standards, § 9.31-.32, ABA/BNA at 01:842. . The disciplinary records of the Alaska Bar Association reflect that previously two grievances were filed against Schuler. One was dismissed and one was not accepted for investigation. No prior discipline has been imposed against him. . In his statement to the Disciplinary Board, Mr. Schuler says, inter alia: 2.I was accosted by one of the store employees and directed not to return to the store. I left and returned home, awaiting the next inevitable step in the process. When requested to come to the police station I sought the advice of my attorney and declined to make a statement to the police at that time. 3.Soon thereafter, I was suspended by the State in my job as a prosecutor. I went to Anchorage where I sought treatment from a psychiatrist, Dr. Michael Bernzott. Treatment by Dr. Bernzott helped me to realize not only the wrongfulness of my conduct, of which I was already aware, but also the sources of my motivation to such an act which, compared to my standing and reputation in the community, seemed so unreasonable. I came to understand that I was creating intolerable strain for myself in posing as perfect while suppressing acceptance of my own normal weakness. This eventually manifested itself in acts, such as this attempted theft, which can only be understood as self-destructive. Stealing was a way to put myself in the way of punishment for my pose. Once I understood the roots of this way of thinking, I was able to come to terms with things that I had a choice to do or not to do. One of the things I became truly free not to do was steal. 3. [sic] Nonetheless, I had put myself in the way of punishment, and punishment was awarded. I entered a plea of No Contest to the charge of Concealment of Merchandise, and consequently was terminated by the Department of Law, ending a budding career to which I had totally devoted myself under trying conditions for over five years. That was not unexpected, but was still very painful indeed. 4. I also felt acutely the shame associated not only with the punishment, but also the knowledge of my colleagues of my wrongful act. This was especially ash in my mouth because I had recently put myself before the Bar as a candidate for judicial office and had attained the highest ratings for professional integrity by my peers. 6. I acknowledge the wrongfulness of my conduct and recognize that bitter consequences flow from it. I know now why I acted as I did and, armed with that knowledge, know that I will not so act again. I cannot make the events other than as they are, but I also know that I can, in time, demonstrate to the Bar and the judiciary that the credit I was once given for integrity can be regained, if given the chance. . See footnote 11. . On Schuler's plea of no contest to a violation of AS 11.46.220(a), (c)(2), he was found guilty. Imposition of sentence was suspended and Schuler was placed on probation for a period of one and one half years on good behavior, ordered to continue counselling as long as neces sary, complete 100 hours of community service work within one and one half years and provide proof thereof to the court, and not violate the law. He successfully completed the terms of his probation and the case against him dismissed. . See footnote 11. . Arguably the remoteness of Schuler's prior offense could be a mitigating factor under the guidelines. The Board did not so argue. However, the Board did consider the prior offense in determining whether to modify its Revised Stipulation for Discipline. It declined to do so "[bjecause the 1973 conviction predates [Schu-ler's] admission to the Bar and is relatively dated." . Justices Burke and Compton would have ordered West disbarred. . The Revised Stipulation for Discipline was approved by an order entered by the court on April 1, 1991, with "A written opinion [to] follow." The practical effect of our approval is that Mr. Schuler will have been suspended in excess of three years and two months. Were Justice Rabinowitz's position to have prevailed, the suspension would be in excess of five years and eight months.

10370672

Byran B. PEROTTI, Appellant, v. STATE of Alaska, Appellee

Perotti v. State

1991-10-04

No. A-3679

700

703

818 P.2d 700

818

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T19:02:39.964286+00:00

CAP

Before BRYNER, C.J., COATS, J., and ANDREWS, Superior Court Judge.

Byran B. PEROTTI, Appellant, v. STATE of Alaska, Appellee.

Byran B. PEROTTI, Appellant, v. STATE of Alaska, Appellee. No. A-3679. Court of Appeals of Alaska. Oct. 4, 1991. Marcia E. Holland, Asst. Public Defender, Fairbanks, and John B. Salemi, Public Defender, Anchorage, for appellant. Shelley K. Chaffin, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., COATS, J., and ANDREWS, Superior Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

1365

8381

OPINION BRYNER, Chief Judge/ Byran B. Perotti was convicted by a jury of attempted escape in the first degree and assault in the third degree. Superior Court Judge Mary E. Greene sentenced him to three and one-half years for the attempted escape and one and one-half years for the assault, to be served consecutively. Perot-ti appeals, arguing that there was insufficient evidence to support his conviction on the assault charge and that his sentences are excessive. We affirm. On October 13, 1989, while awaiting sentencing for unrelated charges, Perotti attempted to escape from the Fairbanks Correctional Facility. Perotti managed to conceal himself on the roof, but Correctional Officer Larry Newman detected movement and became suspicious. Newman began to unsling his assault rifle and reach for his radio, but Perotti jumped him first, knocking the radio out of reach and the officer to the ground. Newman fell face down on the rifle. Perotti pummeled Newman about the face, knocked his glasses off, and tried' to pry the rifle away. Newman feared that "the only . reason he's up there trying to get the rifle was to kill me." He yelled for help and struggled to prevent Perotti from getting the rifle. Perotti was stronger than Newman, however; Newman believed that, unless help arrived, Perotti would succeed in taking the rifle. After Perotti and Newman struggled for a short while, Newman's parka rode up, exposing a pistol he carried on his belt. Perotti took the pistol and pushed himself away, pointing it at Newman. Newman was not afraid, however, because he knew the pistol was unloaded. Newman attempted to fire a warning shot with his rifle, but saw that its magazine had come out during the struggle. Perotti then noticed that the pistol he had taken from Newman was unloaded. He apologized to Newman and surrendered himself. The state thereafter charged Perotti with violating AS 11.41.220(a)(1), which provides: (a) A person commits the crime of assault in the third degree if that person recklessly (1) places another person in fear of imminent serious physical injury by means of a dangerous instrumenté] The state's theory was that Perotti placed Newman in fear of imminent serious physical injury by means of the rifle. On appeal, Perotti contends that the trial court erroneously denied his motion for a judgment of acquittal on the assault charge. Perotti argues that he could not have placed Newman in fear "by means of" the rifle, since he never managed to take it away from Newman. Perotti cites no authority directly supporting his claim. His argument simply assumes that actual possession is a prerequisite to the commission of an assault "by means of" a dangerous instrument. Existing case law does not appear to bear out this assumption. Under comparable circumstances, the Nebraska Supreme Court upheld the conviction of two assailants who had struggled with an arresting officer for control of the officer's gun without actually obtaining possession of it. State v. Lewis, 184 Neb. 111, 165 N.W.2d 569 (1969). The applicable Nebraska statute provided that any person who "uses a deadly or dangerous weapon" in committing an assault upon an officer was guilty of a felony. Id. 165 N.W.2d at 572 (quoting R.R.S.1943, § 28-729.01, R.S.Supp., 1967). The Lems court squarely rejected the claim that actual possession was a prerequisite to the use of a dangerous weapon: [T]he defendants' theory is that the frustration by the police officers of their attempt to get final and complete control and the use of the gun should now be considered as a defense. Exclusive control of a weapon and either the firing or the threat are not elements required under the terms of the statute. To place such a construction on the statute would be irrational and emasculate its obvious purpose. Id. at 573. In State v. Hill, 298 Or. 270, 692 P.2d 100, 105 (1984), the Oregon Supreme Court gave a similar interpretation to ORS 163. 165(l)(a), a statute that served as a model for Alaska's third-degree assault statute. The Oregon statute provided: (1) A person commits the crime of assault in the third degree if he: (a) Recklessly causes serious physical injury to another by means of a deadly or dangerous weapon[.] 692 P.2d at 102 (quoting ORS 163.165(l)(a)). Hill was convicted under this provision after a passenger in his car sustained injuries in an accident caused by Hill's reckless driving. In affirming the conviction, the Oregon Supreme Court held that Hill could be found guilty of committing an assault "by means of" a dangerous instrument (his ear) even though he had never actually directed the instrument at the victim of the assault. In the present case, Perotti was subject to conviction under AS 11.41.-220(a)(1) if the state proved that he recklessly placed Newman in fear of imminent serious physical injury by means of the rifle that Newman carried. Newman testified at trial that he was engaged by Perotti in a physical struggle over the gun. Newman believed that Perotti was about to succeed in his efforts to gain control of the weapon. He feared that Perotti would shoot him to make good the attempted escape. Under the circumstances, the evidence was sufficient, when viewed in the light most favorable to the state, to allow reasonable jurors to conclude that Newman had been placed in imminent fear of being shot by Perotti with the rifle. The evidence was also sufficient to support the conclusion that Perotti acted recklessly with regard to the likelihood that his actions would place Newman in fear of suffering imminent serious physical injury from the rifle. Since reasonable jurors could differ on the issue of whether the state had proved Perotti's guilt beyond a reasonable doubt, the trial court did not err in denying the motion for a judgment of acquittal. Hentzner v. State, 613 P.2d 821, 823 (Alaska 1980). Perotti next claims that his sentence is excessive. He argues that the court erred in the emphasis it gave to the injuries Newman suffered. Perotti does not argue that the court erred in finding an aggravat ing factor based on Newman's injuries. He contends only that this factor should not have been relied upon as a basis for actually increasing the one-year presumptive term for assault to one and one-half years. According to Perotti there was no need to increase the applicable presumptive term because the threat he posed to Newman was merely conditional and unrealized. To the extent that Newman actually suffered injury, however, Perotti's assaultive conduct was neither conditional nor unrealized. Newman's injuries could thus properly be relied upon by the sentencing court as a basis for adjusting the presumptive term. We cannot say that the relatively modest, six-month enhancement in this case was clearly mistaken. Upton v. State, 749 P.2d 386, 388 (Alaska App.1988). Perotti next suggests that the sentencing court erred in imposing his assault and attempted escape sentences consecutively. He complains that "no good reason existed for imposing a composite sentence which exceeded the four year presumptive sentence for the attempted escape conviction." However, Judge Greene found that deterrence and community condemnation justified the imposition of consecutive sentences. Judge Greene's finding is sufficient to establish good cause for the imposition of consecutive sentences. See Farmer v. State, 746 P.2d 1300, 1301-02 (Alaska App.1987). Having independently reviewed the entire sentencing record, we cannot conclude that Perotti's composite sentence of five years was clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). The conviction and sentence are AFFIRMED. MANNHEIMER, J., not participating. . The state did not base the charge on Perotti's use of Newman's pistol, since Newman knew the pistol was unloaded and was not placed in fear.

10370329

Jerry W. MITCHELL, Appellant, v. STATE of Alaska, Appellee

Mitchell v. State

1991-09-27

No. A-2954

688

691

818 P.2d 688

818

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T19:02:39.964286+00:00

CAP

Before BRYNER, C.J., COATS, J., and ANDREWS, Superior Court Judge.

Jerry W. MITCHELL, Appellant, v. STATE of Alaska, Appellee.

Jerry W. MITCHELL, Appellant, v. STATE of Alaska, Appellee. No. A-2954. Court of Appeals of Alaska. Sept. 27, 1991. Susan Orlansky, Asst. Public Defender, and John B. Salemi, Public Defender, Anchorage, for appellant. Nancy R. Simel, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., COATS, J., and ANDREWS, Superior Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

1435

8595

OPINION COATS, Judge. Jerry W. Mitchell was convicted, following a jury trial, of four counts of sexual abuse of a minor in the first degree, three counts of sexual abuse of a minor in the second degree, and one count of attempted sexual abuse of a minor in the first degree. Mitchell was convicted of committing various acts of sexual abuse on two minors: D.J., his six-year-old stepson, and E.J., his eight-year-old stepdaughter. The state tried Mitchell for these acts in two separate trials. At the first trial, which was held in March 1988, the jury found Mitchell guilty of one count of attempted sexual abuse of a minor in the first degree, and two counts of sexual abuse of a minor in the second degree. The jury acquitted Mitchell on several counts and was unable to reach a verdict on several counts. In October of 1988, the state retried Mitchell on the charges on which the first jury failed to return verdicts. This second jury convicted Mitchell for four counts of sexual abuse of a minor in the first degree, and one count of sexual abuse of a minor in the second degree. During both trials, the complaining witnesses testified in closed courtrooms. In the first trial the defense attorney sought closure. However, in the second trial the state moved for closure, and the trial judge granted closure over the defense attorney's objection. Mitchell now argues that the closure order violated his right to a public trial. He claims that the closure, which was allowed pursuant to former AS 12.45.048, was unconstitutional because the judge did not make a constitutionally required finding of necessity, or consider alternatives to complete closure prior to allowing exclusion during the children's testimony. In Renkel v. State, 807 P.2d 1087 (Alaska App.1991), we addressed the constitutionality of closing the courtroom during the testimony of children pursuant to AS 12.45.048. In that case, the state agreed that AS 12.45.048 was unconstitutional. Id. at 1092. We reversed Renkel's conviction, finding that the trial court's closure of the courtroom denied Renkel his right to a public trial under the United States and Alaska Constitutions. U.S. Const, amends. VI and XIV; Alaska Const, art. 1, § 11. We noted that a trial court must make particularized findings to support a closure order. See Renkel at 1093. We find the circumstances of Mitchell's second trial to be indistinguishable. In Mitchell's second trial, it seems clear from the record that the trial judge granted the state's request to close the courtroom. Nothing in the record suggests that the courtroom was not closed pursuant to the judge's order. Furthermore, the record does not include specific findings which justify the trial judge's decision to close the courtroom. See Renkel at 1091-94. We accordingly reverse the convictions which resulted from Mitchell's second trial. Mitchell next argues that the state presented insufficient evidence for the jury in the first trial to find him guilty of attempted sexual abuse of a minor in the first degree as charged in Count VIII of the indictment. The evidence supporting this count is as follows. E.J., Mitchell's eight-year-old stepdaughter, testified that on October 9, 1987, she and Mitchell were in the bathroom of her mother's trailer. Mitchell had brought a bottle of syrup into the bathroom and said he was going to pour the syrup on his penis, and that he wanted E.J. to lick it off. E.J. told Mitchell that she did not want to do this, and Mitchell never actually put the syrup on his penis. E.J.'s mother later testified that she found a bottle of syrup in the bathroom and asked Mitchell why it was there. Mitchell told E.J.'s mother that he was going to make sandwiches with it. Later, however, E.J.'s mother found a wet drop of syrup on the counter. This made her suspicious, and she then asked E.J. if Mitchell had touched her or made her "feel icky." E.J. responded that he had. Alaska Statute 11.31.100(a) states the elements of attempt: A person is guilty of an attempt to commit a crime if, with intent to commit a crime, the person engages in conduct which constitutes a substantial step toward the commission of that crime. In Sullivan v. State, 766 P.2d 51, 53 (Alaska App.1988) (citations omitted), we summarized the law of attempt as follows: In order to constitute a "substantial step," conduct must go beyond mere preparation. Whether an act is merely preparatory or is "sufficiently close to the consummation of the crime to amount to attempt, is a question of degree and depends upon the facts and circumstances of a particular case." Mitchell argues that Sullivan supports his position that there was insufficient evidence to convict him of attempted sexual abuse of a minor in the first degree. In Sullivan, the defendant asked an eight-year-old girl if she would be his girlfriend, and offered to pay her money. The girl responded "no." Next Sullivan sent the girl a note which asked her to be his girlfriend, to kiss him, to take off her clothes, and to get him another girlfriend. The note included a spaces for both "yes" and "no" answers. Id. at 52. In analyzing the case, we distinguished the facts in Sullivan from those in Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S.Ct. 2246, 56 L.Ed.2d 410 (1978). In Braham, the defendant solicited a friend to kill a third person for $600. Bra-ham instructed the friend, Koelzer, to visit the intended victim, Peterson, in the hospital, and deliver Peterson a message. Shortly after Koelzer delivered the message, he abandoned the murder plan. The Alaska Supreme Court concluded that Bra-ham's purpose in having Koelzer visit Peterson in the hospital was to have Koelzer establish a relationship of trust and confidence with Peterson in order to facilitate the commission of the murder. The court found that this was a "direct and unequivocal" act toward the commission of the murder and therefore the evidence was sufficient to sustain a conviction for attempted murder. Id. at 638. We explained in Sullivan that Braham's conduct was distinguishable from Sullivan's conduct in two respects: Sullivan did not make an agreement between himself and another person to commit a crime; and Sullivan did not engage in any activity toward completion of his crime after he solicited the child with the notes. Sullivan, 766 P.2d at 54. Although Sullivan had a plan to seduce the young girl, he took no substantial step toward the actual commission of the crime. Id. On this basis, we reversed Sullivan's conclusion for attempted sexual abuse of a minor. In Mitchell's case, he brought both E.J. and the syrup into the bathroom, and asked E.J. if she would lick the syrup from his penis. The fact that a wet drop of syrup was found on the counter supports the conclusion that Mitchell actually opened the syrup and poured some amount of it. We hold that a reasonable jury could conclude that these actions by Mitchell constituted a substantial step toward the commission of sexual abuse of a minor in the first degree. The jury could find that Mitchell had maneuvered his intended victim into a place where he could commit the crime, had brought the syrup into the bathroom in order to commit the crime, and had actually done something with the syrup which caused the syrup to spill. We conclude that there was sufficient evidence for a jury to find Mitchell guilty of attempted sexual abuse of a minor in the first degree based upon this evidence. Mitchell next argues that the descriptions of sexual abuse by D.J. and E.J. were not clear, and failed to demonstrate that the various acts described occurred in separate incidents and warranted multiple convictions. In his reply brief, Mitchell concedes that his convictions are supportable under Yearty v. State, 805 P.2d 987, 993 (Alaska App.1991), which was decided after Mitchell filed his opening brief. We have reviewed Mitchell's convictions, and conclude that separate convictions were proper. The convictions are AFFIRMED in part, REVERSED in part. MANNHEIMER, J., not participating.

11616148

Amy ANDRUS, Appellant, v. Perparim LENA, Appellee

Andrus v. Lena

1999-03-26

No. S-8060

54

61

975 P.2d 54

975

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:03:05.874934+00:00

CAP

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

Amy ANDRUS, Appellant, v. Perparim LENA, Appellee.

Amy ANDRUS, Appellant, v. Perparim LENA, Appellee. No. S-8060. Supreme Court of Alaska. March 26, 1999. Paul W. Waggoner, Anchorage, for Appellant. George M. Kapolchok, Law Offices of George M. Kapolchok, Anchorage, for Appel-lee. Before: MATTHEWS, Chief Justice, COMPTON, EASTAUGH, FABE, and BRYNER, Justices.

3322

19954

OPINION MATTHEWS, Chief Justice. I. INTRODUCTION Perparim Lena received a $39,000 jury verdict against Amy Andrus for a personal injury claim arising from an automobile collision. The superior court, finding Lena's offer of judgment more favorable to Andrus than the final judgment, awarded Lena an additional five percent interest pursuant to Alaska Civil Rule 68. The court also held that Lena was the prevailing party, awarding him $10,000 in attorney's fees pursuant to Alaska Civil Rule 82(b)(3) and an additional $3,162 in actual paralegal fees. Because the trial court erred in several respects, we vacate these awards and affirm only the ruling that Lena is the prevailing party. II. FACTS AND PROCEEDINGS On January 8, 1996, Lena filed a personal injury lawsuit against Andrus. On November 15 Lena served Andrus with an offer of judgment under Civil Rule 68. In it, he offered to settle the case for $38,000 plus costs pursuant to Civil Rule 79, with 10.5% interest from the date of the accident, and attorney's fees calculated pursuant to Civil Rule 82. Andrus rejected the offer. Prior to trial, Andrus conceded her negligence, leaving only the issues of causation, injury, comparative negligence, and damages for the jury. The jury found that Andrus's negligence was a legal cause of Lena's injuries. It also found that Lena was negligent, but found that his negligence did not cause his injuries. It awarded Lena $39,000 in damages, which included $16,397 in past damages and $22,603 in future damages. The superior court then entered final judgment against Andrus. It held that Lena's offer of judgment was more favorable to Andrus than the judgment, and applied the penalty provision of Rule 68 by setting both the prejudgment and post-judgment interest on the damage award at 15.5%. It also found that Lena was the prevailing party and awarded him attorney's fees under Rule 82(b)(1); $3,162 for actual paralegal fees; and an enhanced attorney's fee award of $10,000 under Rule 82(b)(3)(F), (G), (J), and (K), emphasizing that Andrus had initially refused to concede liability and had rejected Lena's more favorable offer of judgment. Andrus appeals the award of Rule 68 interest, attorney's fees, and paralegal fees. III. DISCUSSION A It was Error to Hold that Lena's Rule 68 Offer of Judgment Whs More Favorable to Andrus than the Judgment. Andrus argues that the superior court erred in applying the Rule 68 interest penalty against her. She claims that, with prejudgment interest properly calculated on the full amount of the offer but only on the past damage portion of the judgment, the offer of judgment was not more favorable to her than the final judgment. We agree. Where the party defending against a claim rejects an offer of judgment more favorable to the offeree than the final judgment, the superior court must increase the prejudgment interest award by five percent. Alaska R. Civ. P. 68(b)(2); AS 09.30.065. To determine whether an offer is more favorable than a judgment, we must add "interest to the date [of] the offer" to the jury award. Farnsworth v. Steiner, 601 P.2d 266, 269 n. 4 (Alaska 1979). Since the offer in this case was for a set amount plus prejudgment interest from the date of the accident, we must also add prejudgment interest to the offer to compare the value of the two amounts. First, we calculate the amount of prejudgment interest on the $39,000 jury award. Lena's argument assumes that we should calculate prejudgment interest on the entire amount of the jury award. We reject his argument because "prejudgment interest should be awarded only as to the past damages." McConkey v. Hart, 930 P.2d 402, 406 (Alaska 1996). Therefore, we calculate prejudgment interest only on the jury's award of $16,397 in past damages, which makes the judgment's value approximately $44,165. Next, we calculate the amount of the prejudgment interest on the $38,000 offer of judgment. Lena argues that we should calculate prejudgment interest only on the portion of the offer that corresponds to the jury's award of past damages, instead of on the entire amount. He argues that Farns-worth allows the court to view the offer through a "retrospectoscope," and calculate prejudgment interest using "the real numbers as decided by the jury rather than applying prejudgment interest to everything." Using his theory, we would calculate prejudgment interest on the offer based on the percentage of past damages the jury actually awarded. We reject Lena's argument because it would make the offer indefinite — neither party would know how much the offer was actually worth until the jury made an award. See Myers v. Snow White Cleaners & Linen Supply, Inc., 770 P.2d 750, 752-53 (Alaska 1989) ("One of the protections afforded by the Civil Rule 68 procedure is that the offer of judgment must be definite. This protection is designed to avoid post-trial litigation concerning the meaning of the offer.") (citing Davis v. Chism, 513 P.2d 475, 481 (Alaska 1973) (internal citation omitted)). Furthermore, Lena's theory is not a plausible reading of the offer, which we interpret as a contract. See Jaso, 923 P.2d at 801. If Andrus had accepted Lena's offer, the parties could only have calculated prejudgment interest on the entire $38,000. Therefore, we will calculate prejudgment interest on the entire amount of the offer, which makes the offer's value approximately $49,970. When prejudgment interest is properly applied to the entire $38,000 of the offer but only to the past damages portion of the jury award, the offer clearly was not more favorable to Andrus than the jury award. We therefore hold that the court erred in applying the Rule 68 interest penalty. B. The Superior Court Did Not Abuse Its Discretion by Finding that Lena Was the Prevailing Party Andrus argues that the superior court erred by finding that Lena was the prevailing party. She argues that the court should have declared that neither party prevailed in this case because the jury rejected "much of plaintiffs damage claims." "[T]he prevailing party is the one who prevailed on the main issues." Blumenshine v. Baptiste, 869 P.2d 470, 474 (Alaska 1994). A plaintiff may still prevail even if he or she failed to recover all of the relief sought. See id.; see also Alaska Placer Co. v. Lee, 553 P.2d 54, 62-63 (Alaska 1976) (holding that plaintiffs who sought $73,-298, but were only awarded $34,026 after offsets, were the prevailing parties). However, when each party prevails on a main issue, the court retains the discretion to not award any attorney's fees. See Shepherd v. State, Dep't of Fish & Game, 897 P.2d 33, 44 (Alaska 1995) (citing Tobeluk v. Lind, 589 P.2d 873, 877 (Alaska 1979)). We hold that the superior court did not abuse its discretion by finding that Lena was the prevailing party. The jury, on a special verdict form, found the following issues in Lena's favor: 1) Andrus's negligence was a legal cause of Lena's injuries; 2) Lena's own negligence was not a legal cause of his injuries; and 3) Lena suffered a total of $39,000 in damages as a result of Andrus's negligence. Thus the superior court did not abuse its discretion by finding that Lena prevailed on the main issues. C. It Was an Abuse of Discretion to Enhance the Rule 82 Attorney's Fees by $10,000 1. It was an abuse of discretion to consider the offer of judgment in enhancing fees. The superior court awarded Lena an enhanced attorney's fee award based partially on its mistaken assumption that Andrus had rejected an offer of judgment more favorable to her than the judgment. Andrus argues that the superior court improperly considered the offer of judgment in awarding enhanced attorney's fees. Since the 1993 amendments to Rule 82, trial courts can consider whether to increase an offeror's attorney's fees award when he or she has made an offer of judgment more favorable to the offeree than the judgment. See Fairbanks North Star Borough v. Lakeview Enterprises, Inc., 897 P.2d 47, 62 (Alaska 1995). Here, however, the court relied on its erroneous assumption that Lena's offer of judgment was more favorable to Andrus than the judgment. Since the offer was not more favorable to Andrus than the judgment, the superior court abused its discretion by increasing Lena's attorney's fees on this basis. We thus remand the attorney's fee award so the superior court can determine whether other factors justify enhancing the award. 2. It was an abuse of discretion to enhance fees when Lena's counsel failed to submit records which gave a brief description of the services provided. Andrus also argues that Lena did not submit proper records to support his request for enhanced attorney's fees. Lena argues, however, that this rule no longer applies after the 1993 amendments to Civil Rule 82(b)(3)(C), which allow the court to consider the reasonableness of the hourly rates and the hours expended. He argues that since he was not seeking actual fees, he was only required to submit the total hours worked and the hourly rate. "[W]hen counsel requests attorney's fees, other than based on the schedule in Rule 82(b)(1), accurate records of the hours expended and a brief description of the services reflected by those hours should be submitted." Hayes v. Xerox Corp., 718 P.2d 929, 939 (Alaska 1986) (remanding for superi- or court to order counsel to "itemize the hours and nature of the work spent on this ease"). We have not limited this rule to situations where the party seeks actual fees. Furthermore, a brief description of the work performed is also necessary to allow the superior court to determine the reasonableness of the hours expended when it awards enhanced fees. We thus hold that Lena was required to submit records with a brief description of the services provided, the hours worked, and the hourly rate to support his motion for enhanced attorney's fees. Since Lena submitted only total hours and rates, but no breakdown of the services provided, we also remand on this issue so the court can request these records when it reconsiders its enhanced award. D. It Was Error to Enter Final Judgment Without Calculating Lena's Rule 82 Attorney's Fees. The final judgment in this case provided that the "plaintiff is awarded attorney fees pursuant to Rule 82 and in addition is awarded the sum of $10,000." Andrus argues that the superior court abused its discretion by failing to specify the amount of the Rule 82 attorney's fees in the final judgment. We agree. Rule 82(d) provides that Attorney's fees upon entry of judgment by default may be determined by the clerk. In all other matters the court shall determine attorney's fees. (Emphasis added.) The rule, therefore, clearly provides that the court must calculate the fees. See id. On remand, the court should calculate the amount of attorney's fees. E. It Was Error to Award Actual Parar legal Fees to Lena, In the final judgment, the superior court stated that "plaintiff is awarded paralegal fees in the amount of $3,162," the actual amount of costs Lena requested. Andrus argues that the superior court erred in awarding actual paralegal fees. We agree. Prior to the 1995 amendments to Rule 79 and Rule 82, actual paralegal expenses which were necessarily incurred were recoverable as costs under Rule 79(b). See, e.g., Rule 79 (1994); Yurioff v. American Honda Motor Co., 803 P.2d 386, 390-91 (Alaska 1990). However, Rules 79 and 82 were amended, effective July 15, 1995. See Alaska Supreme Court Order No. 1200 (May 4, 1995). Rule 79(b) then specifically stated that "[f]ees for investigators, paralegals or law clerks shall not be allowed as costs." In addition, subsections (b)(2) and (b)(4) of Rule 82 were amended to include these types of fees, but only in limited circumstances. When the prevailing party does not recover a money judgment, Rule 82(b)(2) allows him or her to recover either twenty or thirty percent of the reasonable actual attorney's fees which were necessarily incurred, including paralegal fees for "legal work customarily performed by an attorney." Similarly, Rule 82(b)(4), which allows partial recovery of fees when default judgment is entered, was also amended so that actual fees include legal work performed by a paralegal. Lena argues, however, that these amendments did not overrule the line of cases which provided that actual paralegal fees could be recovered as costs "necessarily incurred" under Rule 79(b). He emphasizes that the Alaska Rules of Civil Procedure do not currently provide for a separate recovery of paralegal fees under Rule 82(b)(1) when a party recovers a money judgment. He argues that allowing full recovery of paralegal fees which were "necessarily incurred" would fill this void, asserting that it would be "senseless" to suggest that paralegal fees are only recoverable when a prevailing party recovers no monetary award or when there is a default judgment. We reject this argument. The amendments were intended to remove paralegal fees from Rule 79, where the fees had been fully compensated, and provide for only partial compensation under Rule 82. Rule 82, as amended, leaves no void. Instead, under subsection (b)(1), attorney's fees are only recovered at a certain percentage rate of the monetary recovery. The schedule in subsection (b)(1) is intended to partially compensate for attorney's fees — whether actually performed by the attorney or delegated to a paralegal, law clerk, or investigator. The other sections provide for partial awards of attorney's fees, including paralegal fees, when this schedule does not apply. We thus hold that the superior court erred in awarding actual paralegal fees in addition to the attorney's fees calculated under Rule 82(b)(1). IV. CONCLUSION We VACATE the award of Civil Rule 68 interest, the attorney's fee award, and the award of actual paralegal fees, and REMAND to the superior court for proceedings consistent with this opinion. We AFFIRM the superior court's finding that Lena was the prevailing party. . The question of whether an offer of judgment is more favorable to the offeree than the judgment is a question of law which we review de novo. See Jaso v. McCarthy, 923 P.2d 795, 801 (Alaska 1996); Farnsworth v. Steiner, 601 P.2d 266, 269-70 & n. 4 (Alaska 1979). . Rule 68 has been amended and the previous version (applying to cases filed before August 7, 1997) is applicable to the present case. The penalty provision of that previous version of Rule 68 provided: (b) If the judgment finally rendered by the court is not more favorable to the offeree than the offer, the prejudgment interest accrued up to the date judgment is entered shall be adjusted as follows: (2) if the offeree is the party defending against the claim, the interest rate will be increased by the amount specified in AS 09.30.065. AS 09.30.065, in turn, provided that if the party defending against the claim rejects a valid offer of judgment, and the judgment finally rendered by the court is not more favorable to the offeree than the offer, the prejudgment interest accrued up to the date of judgment will be increased by five percent. AS 09.30.065 was amended in 1997, but the amended statute does not apply to cases arising before August 7, 1997. Ch. 26 § 55, SLA 1997. Because Lena's accident occurred in 1994, the present case is therefore governed by AS 09.30.065 in its pre-amendment form. . The mathematical formula to compute the value of a judgment under Rule 68 is: J = (V + PI) + (AF 4- C), for which J = Judgment for computation under Rule 68 to determine whether the Offer of Judgment had been exceeded; V = Jury verdict; PI = Prejudgment interest accrued prior to the Offer of Judgment; AF = Attorney's fees calculated under the "Contested Without Trial" column of Rule 82(b)(1); C = Costs allowable and incurred as of the Offer of Judgment. See Farnsworth, 601 P.2d at 269 n. 4; Alaska R. Civ. P. 82(b)(1). Lena's offer was for a base amount of $38,000 plus fees, costs, and prejudgment interest, all calculated pursuant to the Rules of Civil Procedure. It is not necessary to calculate the amount of attorney's fees and costs incurred by the offer-ee prior to the offer, because they would add proportional amounts to the offer and the judgment. . Both parties agree that the prejudgment interest should be calculated from January 22, 1994, the date of the accident, to November 15, 1996, the date of the offer. For ease of comparison we approximate both figures based on three years of interest. Thus, PI = ($16,397 x 10.5% x 3 years) = $5,165, and J = ($39,000 + $5,165) = $44,165. . PI = ($38,000 x 10.5% x 3 years) = $11,970, and the offer = ($38,000 + $11,970) = $49,970. . Andrus would have had to pay approximately $49,970 plus attorney's fees and costs if he had accepted the offer of judgment, but will only have to pay approximately $44,165 plus attorney's fees and costs under the judgment. . We note that the superior court also erred by increasing the post-judgment interest pursuant to the Rule 68 penalty provision. Rule 68(b) clearly provides that "prejudgment interest accrued up to the date judgment is entered shall be adjusted ." (emphasis added); see also, AS 09.30.065. There is no provision for increasing post-judgment interest. . We review the superior court's determination as to which party is the prevailing party for an abuse of discretion. See Barber v. Barber, 915 P.2d 1204, 1209 n. 10 (Alaska 1996) (citing Apex Control Sys. v. Alaska Mechanical, Inc., 776 P.2d 310, 314 (Alaska 1989)). . We review an award of attorney's fees for abuse of discretion, and will affirm the trial court's determination unless it is arbitrary, capricious, manifestly unreasonable, or improperly motivated. See Alaska Center for the Environment v. State, 940 P.2d 916, 921 n. 4 (Alaska 1997). . We review issues of statutory interpretation de novo. See State, Dep't of Revenue, Child Support Enforcement Div., ex rel. Valdez v. Valdez, 941 P.2d 144, 148 (Alaska 1997) (citing Hertz v. Carothers, 784 P.2d 659, 660 (Alaska 1990)). . We note that in Lena's motion for attorney's fees, he included $3,500 in costs when calculating the amount of Rule 82(b) fees. Lena now concedes, however, that Rule 82 fees can only be calculated on the total of the judgment plus prejudgment interest, but not costs. See Rule 82(b)(1). On remand, the court should exclude the amount of costs from the attorney's fees calculation. . See supra note 10. . Rule 79(b) was amended again by SCO 1306, effective January 15, 1998. The new version does not contain the quoted language. . Rule 82(b) now provides in relevant part: (2) In cases in which the prevailing party recovers no money judgment, the court shall award the prevailing party ip a case which goes to trial 30 percent of the prevailing party's reasonable actual attorney's fees which were necessarily incurred, and shall award the prevailing party in a case resolved without trial 20 percent of its actual attorney's fees which were necessarily incurred. The actual fees shall include fees for legal work customarily performed by an attorney but which was delegated to and performed by an investigator, paralegal or law clerk. (4) Upon entry of judgment by default, the plaintiff may recover an award calculated under subparagraph (b)(1) or its reasonable actual fees which were necessarily incurred, whichever is less. Actual fees include fees for legal work performed by an investigator, paralegal, or law clerk, as provided in subparagraph M2). (Emphasis added.) . We note that the amount of paralegal fees can be considered as a factor under Rule 82(b)(3) to deviate from the (b)(1) schedule.

11616249

Matthew J. DAVIDSON, Appellant, v. STATE of Alaska, Appellee

Davidson v. State

1999-03-19

No. A-6147

67

74

975 P.2d 67

975

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T19:03:05.874934+00:00

CAP

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

Matthew J. DAVIDSON, Appellant, v. STATE of Alaska, Appellee.

Matthew J. DAVIDSON, Appellant, v. STATE of Alaska, Appellee. No. A-6147. Court of Appeals of Alaska. March 19, 1999. William E. Olmstead, Olmstead & Con-heady, Juneau, for Appellant. James L. Hanley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before COATS, Chief Judge, MANNHEIMER and STEWART, Judges.

3699

22979

OPINION COATS, Chief Judge. Matthew J. Davidson was convicted by a jury of assault in the first degree, a class A felony. Davidson appeals to this court, raising essentially two issues: (1) that the state presented insufficient evidence at trial to support a conviction for assault in the first degree; and (2) Superior Court Judge Larry C. Zervos erred in rejecting Davidson's motion for a new trial. We affirm. SUFFICIENCY OF THE EVIDENCE Davidson was convicted of assault in the first degree for assaulting Gordon Hall. Assault in the first degree occurs when the defendant "recklessly causes serious physical injury to another by means of a dangerous instrument." Davidson challenges the sufficiency of the evidence by claiming the state presented insufficient evidence to prove: (1) that Hall sustained "serious physical injury"; (2) that Davidson caused the serious physical injury to Hall; and (3) that Davidson used a "dangerous instrument." In determining whether there is sufficient evidence to support a conviction, we are to consider the evidence in the light most favorable to the prevailing party, in this instance, the state. We are to determine whether the evidence is adequate to support a conclusion by a reasonable mind that the defendant is guilty of the offense beyond a reasonable doubt. According to the evidence presented at trial, Davidson and his friend, Jeff Anderson, confronted Hall in Sitka, Alaska. According to Hall's testimony, following an argument, Davidson began striking him with his fists. Hall tried to run away but Anderson caught up to him and knocked him to the ground. Then, Davidson and Anderson kicked Hall, mostly in the head. Hall eventually passed out. Robert Gorman testified that he and a friend came upon the scene and saw the two men kicking Hall. Gorman testified that he saw him (Davidson) kick Hall in the upper body and head. Gorman stated Davidson used full kicks in striking Hall, and that he saw Davidson kick Hall approximately eight times. Gorman stated that Hall was unconscious by the time he and his friend reached him. Gorman summoned an ambulance for Hall and Hall was taken to the hospital. According to Hall, he was unable to return to work for more than a week after the beating. He sustained a concussion, a broken nose, and several other abrasions/euts from the assault. At trial, which was held six months after the beating, Hall stated that he still suffered from headaches. He had scars below his right eye and forehead. Davidson's first contention is that the evidence presented at trial was insufficient to establish that Hall sustained serious physical injury. Serious physical injury is defined by Alaska Statute 11.81.900(b)(53) as: (A) physical injury caused by an act performed under circumstances that create a substantial risk of death; or (B) physical injury that causes serious and protracted disfigurement, protracted impair-ment of health, protracted loss or impairment of the function of a body member or organ, or that unlawfully terminates a pregnaney. The evidence presented at trial, taken in the light most favorable to the state, established that Davidson kicked Hall several times in the head while Hall was lying helplessly on the ground. Gorman demonstrated the nature of the kicks for the jury which he described as "a full kick." He indicated that it was difficult to demonstrate the kick without kicking something because otherwise he could fall down doing the demonstration. Hall described the extent of his injuries which supported the conclusion that he had been struck severely in the head and sustained a concussion. Based upon this evidence, a reasonable jury could have concluded that Davidson kicked a helpless and unconscious Hall several times in the head. There was sufficient evidence for the jury to find that Hall's injury was "caused by an act performed under circumstances that create a substantial risk of death." We accordingly conclude there was sufficient evidence for the jury to find that Hall suffered serious physical injury. Next, Davidson contends that the evidence presented at trial was insufficient to establish that Davidson caused Hall's injuries. He points out that Hall was unable to tell whether Anderson or Davidson was the person who kicked him in the head. Gordon's testimony, however, taken in the light most favorable to the state, establishes that Davidson was the person kicking Hall's head as Hall lay helplessly on the ground. This evidence was sufficient to support a conclusion by a reasonable jury that Davidson caused serious physical injury. Davidson also argues that there was insufficient evidence to support his conviction for assault in the first degree because the state did not establish that he caused the injury "by means of a dangerous instrument." Alaska Statute 11.81.900(b)(13) defines "dangerous instrument" as: any deadly weapon or anything that, under the circumstances in which it is used, attempted to be used, or threatened to be used, is capable of causing death or serious physical injury. Davidson contends that the evidence was insufficient to show that his foot was a dangerous instrument. In determining whether a foot is a dangerous instrument, the appropriate inquiry is to examine the precise manner in which the foot was actually used. Feet, regardless of how they are shod, are not per se dangerous instruments. They may become dangerous instruments "if used in such a way as to be capable of causing death or serious physical injury." Whether a foot constitutes a dangerous weapon when used to kick another person is a fact-specific determination to be glean ed from the circumstances surrounding an assault; the inquiry in each case must center on the manner in which the kick was administered and the victim's vulnerability to the kick.[ ] We believe that the jury could properly conclude, under the facts of this case, that Davidson's action of kicking Hall several times in the head while he was lying helplessly on the ground made his foot a dangerous instrument. The jury could conclude that the manner in which he used his foot to strike Hall several times was "capable of causing death or serious physical injury." We accordingly conclude that there was sufficient evidence to support the jury's verdict. NEW TRIAL MOTION Following deliberations in this case, the jury completed and returned three verdict forms. On the first verdict form, the jury placed a check mark indicating that it had found Davidson guilty of assault in the first degree. On the two other verdict forms, the jury placed check marks indicating that it had found Davidson not guilty of the lesser-included offenses of assault in the third degree and assault in the fourth degree, respectively. When the jury returned these verdicts, Judge Zervos announced to the parties that the jury had found Davidson guilty of assault in the first degree. Judge Zervos polled the jury, and each of the jurors confirmed that he or she had found Davidson guilty of assault in the first degree. Judge Zervos then dismissed the jury. Only after the jury left the courtroom did Judge Zervos distribute copies of the verdict forms to the parties. The next day, Davidson moved for a new trial, arguing that the jury's verdicts were inconsistent. Davidson contended that, if the jury found him guilty of first-degree assault, it would necessarily have had to find him guilty of the lesser degrees of assault as well, since those lesser offenses were necessarily included in the charged offense. Thus, Davidson argued, the jury's decision to acquit him of third-degree and fourth-degree assault was logically inconsistent with its decision to convict him of first-degree assault. Five days later, over Davidson's objection, Judge Zervos reassembled the jury. The judge explained to the jurors that, normally, when a jury finds a defendant guilty of the charged offense, the jury does not fill out the verdict forms for the lesser-included offenses. The judge then asked the jury to answer a written interrogatory concerning the jury's verdicts. In this interrogatory, the jurors were asked to explain what their verdicts on the lesser-included charges meant. The interrogatory was worded thus: JUROR INTERROGATORY Please check the appropriate box below. The jury returned Not Guilty verdicts on the lesser-included assault charges (Third and Fourth Degree) because: [ ] We concluded that the defendant did not do what was alleged in the lesser-included charges. OR [] We thought that if we found the defendant guilty of Assault in the First Degree then we could not find him guilty of the lesser charges (Assault in the Third or Fourth Degree). OR [ ] Neither of the above. Please explain. If you check the first box[,] leave the verdict forms as they are now. If you check the second box, cross out the original check marks on the verdict forms for Third Degree Assault and Fourth Degree Assault by placing an X over them and write "Not Used" on the forms. If you check the third box, please return to the courtroom. The jurors selected the second option: "We thought that if we found the defendant guilty of Assault in the First Degree then we could not find him guilty of the lesser charges (Assault in the Third Degree or Fourth Degree)." Accordingly, the jurors used an "X" to mark out their previous check marks on the verdict forms for third-degree and fourth-degree assault, and they wrote "Not Used" on these verdict forms. The jurors were further questioned by the court. They confirmed that they had found Davidson guilty of assault in the first degree and had checked "Not Guilty" on the other verdict forms "because we thought we were supposed to do that." Judge Zervos subsequently denied Davidson's motion for a new trial because he found that, even without the jury's explanation, the three verdicts were not "strictly" inconsistent. Judge Zervos declined to rely on the jury's answer to the interrogatory or its accompanying explanatory statements in court because of "the problems associated with having reconvened the jury six days after it was discharged." At the same time, however, Judge Zervos found (based on the jurors' answer to the interrogatory) that the jury had in fact "determined that the evidence did prove the greater offense," and that the jury's first-degree assault verdict accurately "indicat[ed] the level of assault that [the jury] found Mr. Davidson to have committed." Judge Zervos concluded that the jury had checked "Not Guilty" on the other verdict forms, not because it believed that the state had failed to prove Davidson guilty of those lesser offenses, but because of "a procedural error in filling out the verdict forms." Davidson argues on' appeal that Judge Zer-vos erred in denying his motion for a new trial. We disagree with Judge Zervos' ruling that he could uphold the jury's verdict for assault in the first degree on the ground that, even without explanation, the verdict forms were not strictly inconsistent. We conclude, however, that Alaska Evidence Rule 606 did not bar Judge Zervos from considering the jury's response in interpreting the three verdict forms. Rule 606(b) provides: (b) Inquiry Into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not be questioned as to any matter or statement occurring during the course of the jury's deliberations or to the effect of any matter or statement upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes. The commentary to Rule 606(b) discloses that the Alaska rule was modeled after the federal rule. The policy behind Rule 606(b) was stated in Lowery v. State, where this court stated: The policy reasons underlying the exclusion of jurors' affidavits or testimony impeaching verdicts include protection of jurors against annoyance or embarrassment, freedom of deliberation, and finality of verdicts. Allowing inquiry into the mental operations and emotional reactions of jurors in reaching a given verdict would invite constant review as a result of tampering and harassment. Moreover, even without pressure by counsel or litigants, many jurors are likely to have second thoughts about their verdicts after they are excused by the Court and the influence of fellow jurors dissipates. Such second thoughts might cause jurors to question their verdicts if permitted to do so. Yet these policy reasons are not promoted by a blanket prohibition against inquiry into irregularities which occur in the jury process when such irregularities result from preju-dicial extraneous information or influences injected into or brought to bear upon the deliberative process. If the judicial system is operating properly, such inquiries should rarely be necessary. Some jurisdictions interpret Federal Evidence Rule 606(b) as allowing post-verdict inquiry into jury deliberations where the jury might have made a "clerical error." These jurisdictions allow a judge to reassemble a jury and inquire whether the verdict accurately reflects what the jury decided. The inquiry seems to be limited, however, to asking the jury if the verdict reflects what the jury decided; the court cannot ask how the jury arrived at its decision or whether it understood or followed the court's instructions. Other jurisdictions do not allow this sort of inquiry at all, construing Rule 606(b) as only allowing inquiry into whether extraneous prejudicial information or outside influence had an improper effect on the jury. Attridge v. Cencorp Division of Dover Technologies International Inc. is an example of a ease where the court allowed such an inquiry. Appellant Attridge, a maintenance engineer who was injured while attempting to repair a machine used to cut computer circuit boards, brought a products liability action against the manufacturer of the machine (Cencorp), who in turn brought a third-party indemnifi-eation action against Sykes Datatronics (Attridge's employer). The defendants claimed contributory negligence. The court provided the jury with a special interrogatory, which the jury completed. After the court polled and discharged the jury, two jurors revealed to the courtroom deputy that the $150,000 verdict that the jury arrived at represented net recovery, rather than an unadjusted verdict. The deputy informed the court. The court recalled the jury the following day, and asked each juror individually and on the record "[w]hat was your understanding as to what the verdict was?" The jurors unanimously responded that they intended the $150,000 figure to represent net, rather than gross, recovery. On appeal, the defendants asserted that the amount of recovery could not be altered because any inquiry into the meaning of the jury's verdict was prohibited by Federal Evidence Rule 606(b). The Attridge court disagreed. The court interpreted Evidence Rule 606(b) as: largely restating] Lord Mansfield's broad prohibition against juror testimony. In pertinent part, [the rule] prohibits juror testimony: [A]s to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to as sent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith.... The court noted, however, that Rule 606(b) was obviously not intended to preclude all inquiry into jury verdicts, since the rule "permits testimony that extraneous prejudicial information reached the jury's attention or that other improper external influences interfered with deliberations." Finally, the court observed that Rule 606(b) was "silent regarding inquiries designed to confirm the accuracy of a verdict." Rule 606(b) therefore, by its own terms, does not extend to juror testimony on the veracity of a verdict. Rather, juror testimony is admissible to show that the verdict delivered was not that actually agreed upon. The permissibility of juror testimony hinges upon the purpose for which it is offered. Where the court seeks to correct the mistaken transmission of the verdict from the jury, evidence may be received.[ ] Similarly, in United States v. Dotson, defendants appealed their convictions of conspiring to distribute cocaine and marijuana, distribution of and possession with intent to distribute marijuana, and one defendant was convicted of willfully evading income taxes. After trial, the jury returned a verdict that convicted Dotson of all ten counts in the indictment. Later that evening, two jurors called the judge and stated that the jury had unanimously voted to acquit Dotson on the tenth count. Over the state's objection, the trial court reasoned, and the Fifth Circuit agreed, that Federal Rule 606(b) allows inquiry into whether the verdict delivered was congruent to the verdict that the jury agreed upon. The Dotson court explained: An affidavit of a juror is admissible to show that the verdict delivered was not that actually agreed upon . but a juror may not subsequently impeach a verdict by stating how it was reached... Our research indicates that cases to which this exception applies are few and far between. Nonetheless, courts have accepted that an appropriate means to remedy a clerical error in a verdict discovered by juror affidavits is to simply amend the verdict to reflect the intent of the jury.... [ ] We are guided by this federal authority in our interpretation of Alaska Evidence Rule 606(b). Like its federal counterpart, Alaska Rule 606(b) prohibits a court from questioning jurors "as to any matter or statement occurring during the course of the jury's deliberations or [as] to the effect of any matter or statement upon [any] juror's mind or emotions as influencing the juror to assent to or dissent from the verdictf,] . or concerning the juror's mental processes in connection therewith." But, as the Attridge court noted, Evidence Rule 606 is silent concerning a court's authority to question jurors when it appears that the written verdict may not accurately convey their group decision. Judge Zervos did not ask the jurors to justify their verdict or to explain how they arrived at their decision. Rather, he asked the jurors to clarify what their decision had been. Because Rule 606(b) does not prohibit such an inquiry, we conclude that a trial judge has the power to conduct the type of inquiry that was done in Davidson's case. We also conclude that Davidson's case presents a particularly strong factual setting for allowing an inquiry. In Attridge and Dotson, the juries returned verdicts which appeared proper and complete on their face. In Davidson's case, on the other hand, the verdict forms themselves engendered the confusion as to what the jury's decision was. As noted above, Judge Zervos resolved this case by declaring that the three verdict forms were not internally inconsistent. This was error; the verdict forms are inconsistent. However, this error was harmless in light of the jury's clarification of their decision. Judge Zervos was entitled to elicit the jury's clarification and to amend the verdict forms accordingly. The record establishes that the jury unambiguously found Davidson guilty of assault in the first degree. Judge Zervos therefore properly upheld Davidson's first-degree assault conviction, based on the jury's responses to the court's post-verdict inquiry. The conviction is AFFIRMED. . AS 11.41.200(a)(1). . AS 11.41.200(a)(1). . See Napayonak v. State, 793 P.2d 1059, 1061 (Alaska App.1990); Walker v. State, 742 P.2d 790 (Alaska App.1987). .See O'Dell v. Municipality of Anchorage, 573 P.2d 1381, 1383 (Alaska 1978); Sheldon v. State, 796 P.2d 831, 839 (Alaska App.1990). . AS 11.81.900(b)(53)(A). . Willett v. State, 836 P.2d 955, 959 (Alaska App. 1992) (citations omitted). . AS 11.81.900(b)( 13). .Additionally, the jury returned not guilty verdicts on the charges of robbery, theft, and tampering with evidence. These verdicts are not at issue in Davidson's appeal. .In Brown v. Anchorage, 915 P.2d 654, 660 (Alaska App. 1996), we stated: The law governing inconsistent jury verdicts is well settled. When a defendant is tried for two crimes and is convicted of one but acquitted of the other, the conviction must be reversed if the jury's verdicts are logically inconsistent with each other. The state argued in the trial court and argues on appeal that the verdicts for assault in the third degree and assault in the fourth degree were of no consequence because they had not been returned in open court. Judge Zervos concluded that the state's contention had no merit because the verdicts had been accepted by the court. We agree with Judge Zervos' disposition of this issue. . See Commentary, Alaska Evidence Rule 606(b), first para-graph; Titus v. State, 963 P.2d 258, 260 & n. 2 (Alaska 1998). . 762 P.2d 457, 463 (Alaska App.1988). . See 2 Stephan A. Saltzburg, Michael M. Martin, & Daniel J. Capra, Federal Rules of Evidence Manual, 903-05 & n. 18 (7th ed.1998) (collecting cases). . See id. at 903-04 & n. 17(collecting cases). . 836 F.2d 113 (2nd Cir.1987). . See id. at 114. . See id. . See id. at 115. . See id. . Id. . See id. . See id. at 116. . Attridge, 836 F.2d at 116 (citations omitted). . Id. . Id. . Id. at 116-17 (citations omitted). . 817 F.2d 1127 (5th Cir.1987), vacated in part on other grounds, 821 F.2d 1034 (5th Cir.1987). . See id. at 1129. . See id. . See id. at 1130. . Id. (citations omitted); see also McCullough v. Consol. Rail Corp., 937 F.2d 1167, 1170-72 (6th Cir.1991) (proper for judge to inquire whether dollar amount awarded to plaintiff was what jury intended verdict to be, where court did not elicit any testimony about the process by which the jury reached its verdict); Eastridge Dev. Co. v. Halpert Assocs., Inc., 853 F.2d 772, 783 (10th Cir.1988) (proper for trial court to amend verdict to reflect jury's true decision, where jury had mistakenly deducted 20% for contributory negligence from its verdict). . Attridge, 836 F.2d at 116.

11621745

Connie S. BENNETT and Good Taste, Inc., Appellants, v. William WEIMAR and Robert Cronen, Appellees

Bennett v. Weimar

1999-04-09

Nos. S-8410

691

699

975 P.2d 691

975

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:03:05.874934+00:00

CAP

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

Connie S. BENNETT and Good Taste, Inc., Appellants, v. William WEIMAR and Robert Cronen, Appellees.

Connie S. BENNETT and Good Taste, Inc., Appellants, v. William WEIMAR and Robert Cronen, Appellees. Nos. S-8410. Supreme Court of Alaska. April 9, 1999. Thomas J. Yerbich, Law Office of Thomas J. Yerbich, Anchorage, for Appellants. Michael W. Price and Sabrina E.L. Fernandez, Price & Price, Anchorage, for Appel-lees. Before MATTHEWS, Chief Justice, COMPTON, EASTAUGH, FABE, and BRYNER, Justices.

4338

28053

OPINION EASTAUGH, Justice. I. INTRODUCTION Board members and officers of a condominium association owe a fiduciary duty to the condominium owners. Courts, however, generally do not substitute their judgment for condominium association officers' decisions unless they'are unreasonable. Connie Bennett owns two units in a condominium complex. William Weimar and Robert Cro-nen hold office in and have voting control of the condominium association. Bennett alleged that Weimar and Cronen breached their fiduciary duties by remodeling and landscaping the building's common areas, and by allowing one unit to be used as a coffee shop. She also claimed that they thwarted the sale of her units. Because Bennett has produced no admissible evidence showing that a genuine issue of material fact remains, we affirm the superior court's grant of summary judgment to Weimar and Cro-nen. II. FACTS AND PROCEEDINGS The 600 Barrow Condominiums contain six residential and three commercial units. Connie Bennett, a former president of the condominium owners' association board of directors, owns residential Units C and F, personally and as the owner of Good Taste, Inc. (GTI). William Weimar, the current president of the association, owns residential Units A and B. Weimar is also the owner of St. Johns Investments, Inc., which owns the two largest commercial units (Units 2 and 3). Robert Cronen is the secretary and treasurer of both St. Johns Investments and the association. The relative value of each unit determines its owner's voting power in the association. The value of Weimar's units gives him sufficient voting power to control the decisions of the association's board of directors. An amendment to 600 Barrow's conditions, covenants, and restrictions (CC & Rs), recorded in 1994 during Bennett's presidency, prohibited use of the commercial units as restaurants or food stores. In March 1995 Weimar became president, and Weimar and Cronen (hereinafter collectively Weimar) gained control of the association. The board approved using a commercial unit as a coffee shop. Sometime after approval, counsel to the board advised it that the 1994 amendment was invalid and unenforceable. The board, under Weimar, also approved expenditures exceeding $40,000 to remodel common areas and re-landscape common grounds. Bennett and GTI have tried to sell their units. Bennett placed her units on the market in June 1995, but has been unable to sell them. Bennett sued Weimar and Cronen individually, challenging various actions taken by Weimar in his capacity as director and officer of the association. Bennett did not sue the association. She alleged that Weimar breached his fiduciary duty to the owners by holding meetings without proper notice, approving plans for use of a commercial unit in violation of the CC & Rs, incurring unauthorized expenses, making unnecessary improvements to the common areas of the building, and failing to maintain the association's records according to the bylaws. Bennett maintained that Weimar's actions reduced the value and marketability of her units. She also alleged that Weimar deliberately made false statements to prospective buyers of Bennett's units, thereby preventing their sale. Bennett sought compensatory and punitive damages. Weimar moved for summary judgment. The superior court noted that Weimar supported his motion "with numerous exhibits, including properly sworn and notarized affidavits, to show that there were no disputed issues of material fact." Bennett opposed Weimar's motion, relying primarily on a non-notarized declaration. The declaration did not state that a notary was unavailable. The superior court concluded that, under Alaska Civil Rule 56, it could not consider Bennett's declaration in ruling on Weimar's motion. The superior court found no genuine issues of material fact regarding Bennett's claim of breach of fiduciary duty or intentional interference with prospective economic advantage. It granted summary judgment to Weimar, denied Bennett's motion for reconsideration, and entered judgment for Weimar. Bennett appeals, arguing that the superior court erred in disregarding her declaration and in "determining that as a matter of law the actions of [Weimar] were not unreasonable." III. DISCUSSION A. Standards of Review We review a grant of summary judgment de novo. Summary judgment is appropriate 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." We review a lower court's decision to admit or exclude evidence for abuse of discretion. We find an abuse of discretion only when left with "a definite and firm conviction, after reviewing the whole record, that the trial court erred in its ruling." B. Summary Judgment Materials 1. Bennett's declaration Bennett argues that the superior court improperly disregarded the declaration she submitted in response to Weimar's summary judgment motion. Weimar responds that the superior court correctly refused to consider the declaration because it was not notarized, did not state that a notary was unavailable, and, therefore, did not meet the statutory requirements of an affidavit. Weimar also argues that, even if the declaration had been admitted, it would not have prevented summary judgment because it contains no admissible evidence creating a genuine issue of material fact. The superior court reasoned that Alaska Civil Rule 56 does not "allow- a court to consider a non-notarized written statement such as the Declaration of Connie S. Bennett." Rule 56(c) emphasizes the importance of affidavits, as opposed to unsworn allegations, with regard to summary judgment. It provides that a summary judgment motion "may be supported by affidavits setting forth concise statements of material facts made upon personal knowledge." The party opposing summary judgment "may serve opposing affidavits, a concise 'statement of genuine issues' setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, and any other memorandum in opposition to the motion." When a party has made and properly supported a summary judgment motion, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Therefore, "assertions of fact in unverified pleadings and memoranda cannot be relied on in denying a motion for summary judgment." Alaska Statute 09.63.010 lists persons who may witness an affidavit. Alaska Statute 09.63.020(a) specifies how an equivalent document may be created when a notary public is unavailable. Ben nett's declaration does not meet the requirements of that statute because it does not assert that a notary or other authorized official was unavailable. We conclude that Bennett's declaration does not satisfy the requirements of Rule 56 or AS 09.63.020(a). Bennett argues that, when deciding whether to grant summary judgment, courts may treat a nonmoving party's papers more leniently than the moving party's papers. Bennett asserts, "[cjourts have even accepted verified pleadings as well as declarations as being the functional equivalent of an affidavit in opposition to a motion for summary judgment." Federal courts may treat verified pleadings as equivalent to affidavits, if the verified complaint "is based on personal knowledge and sets forth facts admissible in evidence and to which the affiant is competent to testify." We have also allowed parties to rely on verified pleadings in opposing summary judgment. Verified documents, however, are prepared under oath and are sworn and signed "before a person authorized by law to take the person's oath or affirmation." Therefore, verified and notarized documents satisfy the same basic requirements. Bennett also urges us to consider her declaration because she made it "under penalty of perjury." She reasons, "It seems incongruous for the rules to be such that a person could be convicted of perjury for making a statement in the manner Bennett did in this case, and yet that same statement is not sufficient evidence to support a civil action." Federal courts permit unsworn declarations in lieu of affidavits if the declarations are signed under penalty of perjury. Congress passed 28 U.S.C. § 1746, allowing such declarations, after finding that "[t]he requirement that the person who signs an affidavit must appear before a notary and be sworn can be inconvenient." Congress found that documents might have to be executed outside normal business hours when a notary is unavailable. And, for documents executed outside the United States, it found that notarization might pose additional problems regarding the authority of the officer administering the oath and the authenticity of the officer's seal. Our statutes, however, contain no analogous provision permitting unsworn declarations in lieu of affidavits. In AS 09.63.020(a), our legislature has provided an exception to the notarization requirement when a notary is unavailable. If a notary is available, sworn affidavits are required. If a notary is unavailable, a document satisfying AS 09.63.020(a) is required. The requirement that the party appear before a notary public or other person authorized by AS 09.63.010 to administer an oath (assuming one is available) to swear the truth of a document's contents is potentially more effective at producing truth during motion practice than the threat of discretionary prosecution for perjury. A notary also requires the affiant to produce identification before the notary signs and seals the document. Absent legislative requirement that we do so, we are not willing to equate an unsworn declaration with an affidavit for purposes of summary judgment proceedings. This is an additional safeguard which we wish to retain. Finally, we must decide whether Weimar timely objected to the form of Bennett's declaration. Weimar first challenged the procedural sufficiency of the declaration at oral argument on the summary judgment motion. Weimar had previously treated the declaration as an affidavit. Because Weimar first raised this issue at oral argument, the superior court was not compelled to hold that the unsworn declaration was insufficient. But Bennett never submitted a corrected document. Any possible error on the part of the superior court in failing to give Bennett an opportunity to supply an adequate document is made harmless by Bennett's failure to tender a document that conformed to the requirements of AS 09.63.010 or AS 09.63.020(a) when she moved for reconsideration, and by her failure to request additional time in which to supply a conforming document. We conclude that Bennett's declaration is inadmissible, and that any error in rejecting it is harmless. 2. Affidavits submitted by Weimar Bennett also raises a procedural challenge to the materials Weimar submitted when he moved for summary judgment. She asserts that the Glenn Stewart and Robert Cronen affidavits do not show that the affi-ants had personal knowledge of the facts. She also argues that documents attached to Weimar's supporting memorandum were "neither sworn nor certified." Bennett, however, acknowledges that she first raised this objection when she moved for reconsideration. Without deciding whether Weimar's materials are proeedurally sufficient, we conclude that the superior court properly considered them because Bennett made no timely objection to them. C. Breach of Fiduciary Duty Bennett argues that Weimar breached his fiduciary duties to the association and its members. Although she asserts that the superior court applied the correct standard in judging Weimar's actions, she argues that it misapplied the standard; she raises several challenges to the reasonableness of Wei-mar's actions. Weimar argues that Bennett could only have created a genuine issue of material fact with an affidavit "alleging] facts rising to the level of fraud, dishonesty or incompetence." He contends that summary judgment on this issue was appropriate because, even with her declaration, Bennett introduced no evidence of fraud, dishonesty, or incompetence. The superior court granted summary judgment, explaining, "[Bennett] allege[s] that [Wei-mar's] decisions were* unreasonable, but [she] fail[s] to proffer any evidence that would permit a trier of fact to conclude the expenditures were unreasonable under the permissive business judgment standard...." We turn first to the standard by which the actions of condominium officers' are judged. Bennett proposes a reasonableness standard. She draws an analogy between condominium owners with voting control and directors or majority shareholders of a corporation. She argues that directors have a fiduciary duty to act in the best interests of the corporation, and to manage the corporation's affairs with "the same degree of care that an ordinary prudent person would use." She contends that Weimar, as an owner with voting control, breached those fiduciary duties to the other members of the association. Weimar relies on Papalexiou v. Tower West Condominium, which applies the business judgment rule to evaluate the actions of a board of directors of a condominium association. Under that standard, "[cjourts will not second-guess the actions of directors unless it appears that they are the result of fraud, dishonesty or incompetence." The superior court found that Weimar's actions satisfied a "permissive business judgment standard," which appears similar to the reasonableness standard Bennett advances. Alaska Statute 34.08.330(a) requires officers and members of the executive board of owners' associations "to exercise the care required of fiduciaries of the unit owners." Although AS 34.08.750 appears to allow the importation of the business judgment rule into the law of condominium associations, we favor a standard that includes reasonableness. In O'Buck v. Cottonwood Village Condominium Association, we considered the application of the business judgment rule to condominium boards. We decided that "a condominium association rule will not withstand judicial scrutiny if it is not reasonable." Noting the authority for and against application of the business judgment rule, we concluded, "there is little if any difference whether one uses the business judgment analogy in applying the reasonableness standard.... [T]he rule at issue measures up to any standard of reasonableness." Similarly, in Dunlap v. Bavarian Village Condominium Association we applied a reasonableness test to a condominium rule against storing "junk" cars in carports. We concluded that the rule "bears a fair and substantial relationship to legitimate condominium purposes of improving aesthetics and marketability by eliminating junk cars." We must therefore decide whether there is a genuine issue of material fact about the reasonableness of Weimar's actions challenged by Bennett. 1. The renovations Bennett contends that the board, with only $41,000 in reserves, imprudently spent $45,600 on renovations. She claims that the remodeling and landscaping raised her dues by 250%, and decreased the value, marketability, and security of the building. Weimar supported his summary judgment motion with a prima facie showing that the remodeling had a valid purpose. He submitted an affidavit from Cronen stating that the board of directors decided that the renovations were necessary "based on considerations of aesthetics, safety, security and the convenience of the homeowners. Alternatives were also considered." He also noted, and Bennett does not dispute,, that "[a]ll expenditures for repair were made with approval from the board of directors in accordance with the By-laws." Appearance and marketability are legitimate objectives for an association to pursue. In Dunlap we concluded that the association's rule against storing junk cars in carports could be applied to Dunlap and his car, even though the parties "disagree[d] over whether the presence of Dunlap's Mustang in the carport ha[d] a detrimental effect on the appearance of [the complex]...." Similarly, in O'Buck, the parties did not agree that the association's ban of exterior television antennae improved the appearance of the building. The O'Bucks maintained that the ban was "[nothing] more than a sop to personal prejudice or unarticulated personal values." But we explained that "condominium owners consciously sacrifice some freedom of choice in their decision to live in this type of housing. Unit owners may not rely on the courts to strike down reasonable rules on the grounds of differences in aesthetic tastes." Bennett's case is slightly different. Bennett challenges certain decisions by the association, not an association rule or ban. And Bennett sued Weimar and Cronen individually. But the reasoning of O'Buck and Dunlap still applies because, like the O'Bucks and Dunlap, Bennett challenges judgments of aesthetics and marketability. There was no evidence properly before the court to rebut the showing in the Cronen affidavit that the remodeling was done for a legitimate purpose. To prevent summary judgment, Bennett needed to provide more than her opinion that the renovations were unnecessary; she needed to present evidence showing that they were unreasonable. Bennett's strongest evidence of unreasonableness was the claim in her declaration that her dues increased 250%. But this is not admissible evidence. See Part III.B.l. Bennett's declaration also presented her opinion that the renovations only benefited Weimar's commercial units. Although Bennett implied that the renovations were unreasonable self-dealing by Weimar, she introduced no admissible evidence to support her theory. We therefore affirm summary judgment on this issue. 2. The coffee shop Bennett also argues that approving plans for the use of one unit as a coffee shop violated the CC & Rs and constituted a breach of fiduciary duty. She notes that an amendment to the CC & Rs prohibited the use of a commercial unit as a restaurant or food store. Cronen's affidavit states that the board allowed the coffee shop "[i]n reliance on a legal opinion as to the validity of an amendment to the By-laws." Bennett reasons that "[t]his opinion of counsel, unlike a decision of a court, binds no one and is just that, a mere opinion." She also notes, and Weimar acknowledged, that the board obtained the legal advice only after approving the opening of the coffee shop. The superior court concluded that enforcement of the amendment to the CC & Rs "was not an option" because counsel advised the board that the amendment was invalid. The court also noted that Bennett "proffer[ed] no evidence that the initial approval and subsequent acquiescence of the coffee shop's operation [were] contrary to the interests of the Association or intended to personally benefit [Weimar]." In support of his summary judgment motion, Weimar submitted the attorney's letter opining that the amendment relied upon by Bennett was invalid. The board could permissibly rely on that letter to decline to enforce the amendment. Bennett introduced no evidence that the board's refusal to enforce the amendment, after obtaining counsel's advice that it was invalid and unenforceable, was unreasonable. Bennett's attorney effectively conceded as much in oral argument before our court. We therefore affirm summary judgment on this issue. 3. Credit for fees and costs Bennett also argues that the board did not "credit [her] with the $22,000 [in fees and costs] she expended for and on behalf of the Association . in prosecuting lawsuits involving St. John [sic] Investments and defendants. ." Weimar responds that this issue would be "more appropriately handled" in the lawsuit in which Bennett incurred the fees. The superior court did not decide this issue. Bennett has waived this argument by inadequately briefing it on appeal. She cites no authority to explain her legal theory why Weimar is responsible in this case for fees incurred in another case or to suggest that a factual issue remains. We therefore decline to address this issue, 4, Intentional interference with prospective economic advantage Finally, Bennett argues that Weimar intentionally interfered with possible sales of Bennett's units. Bennett concedes that, on the evidence it did consider, the superior court correctly concluded that Weimar did not interfere with Bennett's prospective sales. But she contends that her declaration establishes genuine issues of material fact on this question. Because we concluded above in Part III.B.l that Bennett's declaration is inadmissible, her argument here necessarily fails. Given her concession, the insufficiency of her declaration, and her failure to argue that Weimar did not satisfy his initial burden of establishing the absence of genuine material factual issues and his entitlement to judgment as a matter of law, we affirm Wei-mar's summary judgment on this claim. IV. CONCLUSION Because there are no genuine issues of material fact regarding Bennett's claims, we AFFIRM the grant of summary judgment to Weimar and Cronen on all of Bennett's claims. . See Ramsey v. City of Sand Point, 936 P.2d 126, 129 (Alaska 1997). . Dayhoff v. Temsco Helicopters, Inc., 848 P.2d 1367, 1369 (Alaska 1993) (quoting Dayhoff v. Temsco Helicopters, Inc., Ill P.2d 1085, 1086 (Alaska 1989)). . See Williams v. Utility Equip., Inc., 837 P.2d 1112, 1115 (Alaska 1992). . Peter Pan Seafoods, Inc. v. Stepanoff, 650 P.2d 375, 378-79 (Alaska 1982). . Alaska R. Civ. P. 56(c). . Id. . Alaska R. Civ. P. 56(e). . Jennings v. State, 566 P.2d 1304, 1309-10 (Alaska 1977). . AS 09.63.010 provides: Oath, affirmation, and acknowledgment. The following persons may take an oath, affirmation, or acknowledgment in the state: (1) a justice, judge, or magistrate of a court of the State of Alaska or of the United States; (2) a clerk or deputy clerk of a court of the State of Alaska or of the United States; (3) a notary public; (4) a United States postmaster; (5) a commissioned officer under AS 09.63.050(4); or (6) a municipal clerk carrying out the clerk's duties under AS 29.20.380. . AS 09.63.020(a) provides: A matter required or authorized to be supported, evidenced, established, or proven by the sworn statement, declaration, verification, certificate, oath, or affidavit, in writing of the person making it (other than a deposition, an acknowledgment, an oath of office, or an oath required to be taken before a specified official other than a notary public) may be supported, evidenced, established, or proven by the person certifying in writing "under penalty of perjury" that the matter is true. The certification shall state the date and place of execution, the fact that a notary public or other official empowered to administer oaths is unavailable, and the following: "I certify under penalty of perjury that the foregoing is true." . Lew v. Kona Hasp., 754 F.2d 1420, 1423 (9th Cir.1985); see also McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987). . See e.g., Smith v. Thompson, 923 P.2d 101, 102 n. 1 (Alaska 1996); Wettanen v. Cowper, 749 P.2d 362, 363 (Alaska 1988). . AS 09.63.040(a), (b). . See AS 09.63.030, .020. . See 28 U.S.C. § 1746. See also Goldman, Antonetti, Ferraiuoli, Axtmayer & Hertell v. Medfit Int'l Inc., 982 F.2d 686, 689-90 (1st Cir.1993) ("Under federal law, an unsworn statement signed under penalty of perjury may be used, in lieu of a sworn statement or affidavit, to support or oppose a motion for summary judgment."); Davis v. Frapolly, 756 F.Supp. 1065, 1067 (N.D.ill.1991). . H.R.Rep. No. 94-1616, at 1 (1976), reprinted in 1976 U.S.C.C.A.N. 5644, 5645. . See id. . See AS 44.50.070 ("A notary public shall require oaths and affirmations to be given in the notary's presence and require persons appearing before the notary to produce identification."). . See Murat v. F/V Shelikof Strait, 793 P.2d 69, 75 (Alaska 1990) (noting "the well-recognized principle that a failure to timely raise any eviden-tiary objection constitutes waiver of that objection and permits the court to consider the proffered evidence"). See also Alaska R. Civ. P. 77(k) (allowing a party to "move the court to reconsider a ruling previously decided " and requiring the movant to "specifically designate that portion of the ruling, the memorandum, or the record, . which the movant wishes the court to consider") (emphasis added). .This is a subject of much debate. See, e.g., Robert G. Natelson, Consent, Coercion, and "Reasonableness" in Private Law: The Special Case of the Property Owners' Association, 51 Ohio St. L.J. 41, 48 (1990) (noting that "individual courts and commentators have resorted to public law and constitutional standards, judicial review of the developer's exercise of reserved powers, trust law, and the laws of business corporations and housing cooperatives" for precedent to apply to property owners' associations); Note, Judicial Review of Condominium Rulemaking, 94 Harv. L.Rev. 647,656-67(1981). . 167 NJ.Super. 516, 401 A.2d 280, 285 (1979). . Papalexiou, 401 A.2d at 286. See also Rywalt v. Writer Corp., 34 Colo.App. 334, 526 P.2d 316, 317 (1974) (concluding that courts should not interfere with acts of directors of homeowners' association absent evidence of bad faith or fraud); Schwarzmann v. Ass'n of Apartment Owners, 33 Wash.App. 397, 655 P.2d 1177, 1181 (1982) (holding that court would not second-guess actions of directors absent a showing of fraud, dishonesty, or incompetence, and that directors could not be held personally liable without a showing that they acted in bad faith or knowingly condoned wrongful or negligent conduct). . AS 34.08.750 provides: The principles of law and equity, including the law of corporations and unincorporated associations, the law of real property, and the law relative to capacity to contract, principal and agent, eminent domain, estoppel, fraud, misrepresentation, duress, coercion, mistake, receivership, substantial performance, or other validating or invalidating cause supplement the provisions of this chapter except to the extent inconsistent with this chapter. (Emphasis added.) . 750 P.2d 813, 817-18 & n. 4 (Alaska 1988). . Id. at 817. . Id. at 817 n. 4 (holding that the association's ban of television antennae was reasonable). . 780 P.2d 1012, 1016-17 (Alaska 1989). . Id. at 1017. Accord, Thanasoulis v. Winston Tower 200 Ass'n, 214 NJ.Super. 408, 519 A.2d 911, 912 (App.Div.1986) (stating that courts will not second-guess association's reasonable, good-faith acts), rev'd on other grounds, -110 NJ. 650, 542 A.2d 900 (1988); Riss v. Angel, 131 Wash.2d 612, 934 P.2d 669, 680-81 (1997) (requiring directors of homeowners' associations to act reasonably and in good faith). . See Dunlap, 780 P.2d at 1017; O'Buck, 750 P.2d at 818. . 780P.2dat 1017. . See 750 P.2d at 818. . Id. . Id. . See French v. Jadon, Inc., 911 P.2d 20, 24-26 (Alaska 1996) (affirming summary 'judgment against a nonmoving party who introduced opinions and speculation, but no admissible evidence, to rebut the moving party's sworn statements). . See Adamson v. University of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991) ("Where a point is given only a cursory statement in the argument portion of a brief, the point will not be considered on appeal''); State v. O'Neill Investigations, Inc., 609 P.2d 520, 528 (Alaska 1980). . See Alaska R. Civ. P. 56(c); Yurioff v. American Honda Motor Co., 803 P.2d 386, 388-89 (Alaska 1990).

10448075

Michael A. SWENSEN, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee

Swensen v. Municipality of Anchorage

1980-09-26

No. 4675

874

881

616 P.2d 874

616

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:03:12.061547+00:00

CAP

Before RABINOWITZ, C. J., CONNOR, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.

Michael A. SWENSEN, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.

Michael A. SWENSEN, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. No. 4675. Supreme Court of Alaska. Sept. 26, 1980. C. Walter Ebell, Cole, Hartig, Rhodes, Norman & Mahoney, Kodiak, for appellant. Karen L. Russell, Municipal Prosecutor, Anchorage, for appellee. Before RABINOWITZ, C. J., CONNOR, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.

3678

21480

OPINION RABINOWITZ, Chief Justice. Michael Swensen contends that his guilty plea was accepted by the district court under procedures which did not comport with due process and Criminal Rule ll. Appellant was arrested on January 8, 1976, for operating a motor vehicle while under the influence of intoxicants (OMVI), a violation of Anchorage Ordinance 9.28.020(A). Swensen was arraigned in district court the following day and, unrepresented by counsel, entered a plea of guilty. On April 3, 1978, he moved to withdraw this guilty plea. The district court refused to hear the merits of the motion on the rationale that it was untimely. Swensen then appealed to the superior court, which ruled that the motion to withdraw his plea was timely but failed on its merits. Swen-sen now appeals to this court. Under our holding in Lewis v. State, 565 P.2d 846, 850-51 (Alaska 1977), a person moving to withdraw a guilty plea under Criminal Rule 32(d) and moving for post-conviction relief under Criminal Rule 35(b) need not show that the former motion has been made with "due diligence," as required by Criminal Rule 32(d)(l)(i). The municipality recognizes that Lewis is controlling, but asks us to reverse our decision in that case. We see no compelling reason to do so, and will hence examine the substantive claims raised by Swensen. Swensen was arraigned en masse, along with a number of other misdemeanor defendants. The arraigning judge advised the group of various rights: to remain silent, to counsel, to have counsel appointed if indigent, to plead guilty, to compulsory process, to appeal, to a jury trial, to change of judge, and to bail. When Swensen was arraigned individually, the judge asked him if he understood his rights, read him the charge and asked if he understood it, advised him of the maximum sentence, and inquired if he desired counsel. Swensen then entered his plea of guilty. Swensen in effect attacks the en masse arraignment procedure as a denial of due process. He seems to contend that the recitation of rights to the group, followed by the questioning as to each defendant concerning whether he or she understood those rights, is insufficient to establish actual understanding. We cannot agree. The defendants as a group here were clearly apprised of their rights, and were told to ask the judge if there was something that needed further explanation. We see nothing in this procedure requiring us to hold it infirm per se. On the other hand, we do agree with Swensen that two facets of his arraignment were in violation of his rights. We find first that he did not make a valid waiver of his right to counsel. Under Criminal Rule 39(b)(3), which was in effect at the time of Swensen's arraignment, the court is required to appoint counsel for an indigent defendant "unless he demonstrates that he understands the benefits of counsel and knowingly waives the same." See Gregory v. State, 550 P.2d 374, 378-79 (Alaska 1976). Swensen apparently was not indigent at the time of arraignment, and so Criminal Rule 39(b)(3) did not apply to his case. It was governed instead by Criminal Rule 39(a): If the defendant appears for arraignment or trial without counsel, the court shall advise him of his right to have counsel, and shall ask him if he desires the aid of counsel. We hold that Criminal Rule 39(a) must be interpreted consistently with Criminal Rule 39(b)(3) in order to avoid constitutional problems; i. e., the advice given to a nonin-digent defendant concerning the right to counsel must also include at least a brief explanation of the "benefits of counsel." In Gregory v. State, 550 P.2d 374, 379 (Alaska 1976) (footnote omitted), we stated: Reason and reflection compel us to recognize that in our complex system of justice, many people brought before the court are unfamiliar with even the most basic legal concepts. Gregory's confusion at the hearing before the superior court with respect to legal terminology, particularly the terms lawyer, attorney, and public defender, is indicative of this fact. We also recognize that the trial court is obligated to be certain that each citizen, when involved in a criminal matter, is aware of the various rights guaranteed him by the Alaska and United States Constitutions. To insure that all defendants enjoy the right to counsel, it must be clear from the record that the person has been informed of the role of a defense attorney and the advantages of being represented by one in a criminal proceeding. Only after this information is placed before the accused can it be said that he has the capacity, in a legal sense, to make a knowledgeable waiver of his right to counsel under Rule 39(b)(3). A defendant's waiver of the right cannot be deemed valid absent this explanation. Since the record indicates that Swensen was told only of his right to counsel, with no further explanation of that right, we must conclude that his subsequent waiver was not knowing and effective. This case is distinguishable from Williams v. State, 616 P.2d 881 (Alaska, 1980), in which the majority concluded that a knowing waiver had occurred. In Williams, the defendant was asked if he understood what an attorney could do, and he responded, "Yes." Even such minimal inquiry did not occur in this case. We also find that Swensen was not adequately apprised of his right to a jury trial and therefore a prerequisite to a knowing waiver was lacking. During the group arraignment, the defendants were told that they had a right to trial by jury "if you could be sentenced to jail or suffer the loss of valuable license or suffer a heavy enough fine to incr- to indicate criminality." At his individual arraignment, Swensen was told he could receive a jail term for his offense. He thus had to determine for himself whether he had the right to a jury trial, presuming he drew the connection between his possible sentence and the previous advice on jury trials. We hold that in a group arraignment each defendant with a right to a jury trial must be individually apprised of that right. The arraigning judge may not leave the defendants to figure out what rights they have. In Lewis v. State, 565 P.2d 846, 851 (Alaska 1977), we stated that failure to comply with Rule 11 plea procedures will be dealt with on a case-by-case basis, and we refused to adopt a rule of per se reversibility. Error must be sufficient to show that "withdrawal [of the plea] is necessary to correct manifest injustice," Alaska R.Crim.P. 32(d)(1), and must affect substantial rights and be evaluated like other non-constitutional errors. 565 P.2d at 852. Thus, under Love v. State, 457 P.2d 622, 631 (Alaska 1969), we must be convinced that the error had a substantial influence on the result. The two errors in this case just discussed when considered together are not harmless under the Love standard. Because of these errors at Swensen's arraignment, we must reverse the decision of the courts below in refusing to allow Swen-sen to vacate his guilty plea. In order to assist the trial court if the state determines to proceed further upon remand, we will discuss the other points raised by Swensen. He alleges a violation of Criminal Rule 11(c)(1), barring acceptance of a guilty plea unless it is shown that the defendant understands the "nature of the charge." We discussed this rule in Larson v. State, 614 P.2d 776, (Alaska, 1980), in which we concluded that Larson was not informed of the "nature" of assault with a dangerous weapon when he was not told that he had a possible defense of intoxication to the specific intent crime. In the case at bar, the offense, however, is not complex, and we believe that the court adequately explained its "nature" by reading the charge to Swen-sen and giving him an opportunity to ask any questions he might have. See United States v. Dayton, 604 F.2d 931, 938 (5th Cir.1979) (en banc). Swensen next argues that there was a failure to comply with Criminal Rule 11(c)(3) (requiring notice to the defendant of the permissible punishment before the plea is accepted), because the court told him that action "may" be taken on his driver's license, when a temporary revocation was in fact mandated by statute, with a limited discretionary exception for individuals whose ability to earn a livelihood would be severely impaired by license revocation. We find this error too insignificant to constitute, in and of itself, a substantial violation of the rule warranting relief. Considered alone, this error is harmless; but a more decisive case of reversible error overall is made out when this error is considered in conjunction with the other errors which we have discussed. Swensen's final assertion of error is that there was a violation of Criminal Rule 11(f), arising from the district court's failure to establish a factual basis for the plea. We hold that in the instant case, involving a simple offense and a quite specific charge, Rule 11(f) was satisfied by the reading of the charge and Swensen's subsequent plea. United States v. Dayton, 604 F.2d 931, 938 (5th Cir.1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980), spoke of the "factual basis" provision of the identical federal rule: [N]o mechanical rules can be stated, and the more complex or doubtful the situa tion . . . , the more searching will be the inquiry dictated by a sound judgment and discretion. . . . [Amended Rule 11] retains its clear reference to the trial judge's subjective satisfaction, and we conclude that this remains the test for that judge. See also State v. Sutherland, 483 P.2d 576, 578 (Ariz.App.1971). The complaint here contained a sworn statement by the arresting officer that he saw Swensen weaving on the road, that Swensen's breath smelled strongly of alcohol, that his balance was poor, his eyes were bloodshot, and his speech was slurred. We believe that this sworn statement established an adequate factual basis for Swen-sen's plea. REVERSED. BOOCHEVER, J., not participating. . Alaska R.Crim.P. 11 reads in relevant part: (c) Pleas of Guilty or Nolo Contendere. The court shall not accept a plea of guilty or nolo contendere from a defendant without first addressing the defendant personally and (1) determining that he understands the nature of the charge; and (2) informing him that by his plea of guilty or nolo contendere he waives his right to trial by jury or trial by a judge and the right to be confronted with the witnesses against him; and (3) informing him: (i) of the mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered, and (ii) that the defendant has the right to plead not guilty or to persist in that plea if it has already been made, or to plead guilty. (f) Determining the Accuracy of Plea. The court shall not enter a judgment upon a plea of guilty without first being satisfied that there is a reasonable basis for the plea. . We also note that the due diligence requirement may well be satisfied in this case. Swen-sen admittedly did not challenge his plea for over two years, and then only when he faced increased penalties for a new OMVI violation. But, as he points out, he did not become aware of the possible violation of his rights until he consulted counsel in connection with the second OMVI, and he thereafter moved speedily for relief. . The construction of Rule 39(a) we are adopting may well be required by the Federal Constitution. See Boyd v. Dutton, 405 U.S. 1, 92 S.Ct. 759, 30 L.Ed.2d 755 (1972) (per curiam), in which the Court reversed the denial of a habeas corpus petition claiming lack of counsel. The record indicated that the petitioner was advised of his right to counsel and to appointed counsel if he were indigent, and that he said he did not want a lawyer. But the Court remanded for an evidentiary hearing on whether this was an effective waiver, i. e., whether it was knowing and voluntary. . We have previously reached this conclusion with regard to defendants going to trial without counsel. See O'Dell v. Municipality of Anchorage, 576 P.2d 104, 107-08 (Alaska 1978); cf. McCracken v. State, 518 P.2d 85, 91-92 (Alaska), appeal añer remand, 521 P.2d 499 (Alaska 1974). For example, in O'Dell, we stated: It is clear from the record that the arraignment court did advise O'Dell that he had the right to the assistance of counsel and that the court would appoint the public defender to represent him if he could not afford to hire counsel. What the record totally fails to demonstrate is that O'Dell appreciated what he was giving up by declining the assistance of counsel. In short, the record fails to demonstrate a knowing' and intelligent waiver by O'Dell of the right to the assistance of counsel. When questioned by the arraignment judge as to whether or not he planned to obtain the services of an attorney, O'Dell's total response was to the effect that it 'was just a matter of clipped bumpers was all it is-there was no accident.' O'Dell's equivocal response to the district court's inquiry as to whether he planned to retain an attorney is not equatable with a knowing and intelligent waiver of counsel under the standards adopted in McCracken v. State, 518 P.2d 85 (Alaska 1974). Although this offense was a minor infraction, the right to counsel still attaches and the record must reflect a clear waiver of that right. The record is simply devoid of an inquiry into O'Dell's comprehension of the benefits of counsel. Once it appears that an accused intends to waive the right to the assistance of counsel, the trial court must take additional steps required by McCracken ["advantages of legal representation should be explained in some detail," McCracken, 518 P.2d at 92] to determine that the accused fully understands the right he is relinquishing. The degree of inquiry necessary should be tailored to the particular characteristics of the accused, such as his lack of education or language disability, and to the complexities of the legal issues raised by the charge against him. In many cases, this duty will be minimal. For instance, traffic misdemeanor cases are usually readily understood by lay persons and the consequences of a finding of guilt are typically not severe. The responsibility of the arraignment judge here, would have been satisfied by an additional sentence or two clarifying O'Dell's answer and assuring an intelligent waiver. 576 P.2d at 108 (footnotes omitted). . We note that the 1980 Alaska Magistrate's checklist for misdemeanor arraignment has an extensive suggested procedure to be followed if an accused wants to waive his right to an attorney. It involves the court giving a short soliloquy on the benefits of having an attorney if the court has any doubts that the accused knows the benefits to be provided by an attorney. "I am going to explain to you what a lawyer is and what a lawyer does. A lawyer is a person who has studied the laws of Alaska and has passed a test to show that he understands these laws. If you have a lawyer to represent you, he will talk with you about the facts of this case, in private. Your lawyer is not allowed to tell anyone else about what you tell him about this case unless you want him to do so. Your lawyer will come to court with you each time you come to court, and he will speak for you in court. He will talk to the lawyer for the state for you. Your lawyer will examine the charges which have been brought against you to see if they are in proper form. Because your lawyer has been trained in the law, he might see some mistakes in the legal papers which have been filed against you which you might not see. Your lawyer will prepare and file legal papers for you. Your lawyer will make sure that no improper evidence would be brought against you in court. You lawyer will make sure that all your rights are protected in this court. Your lawyer can advise you about whether or not you should have a trial. Your lawyer will show your case to this court in the way most favorable to you. He will question any witnesses who speak out against you. He will present evidence in court for you. Even if you think you want to admit that the charges against you are true, a lawyer can held you by giving favorable information to this court and making an argument for you at sentencing. Because your right to a lawyer is so important, if you want a lawyer but cannot pay for one, I will appoint a lawyer for you; that is, you can have a lawyer that you won't have to pay for." [emphasis in original] We think this procedure is reflective of a careful approach to the handling of the waiver of constitutional rights. .Alaska R.Crim.P. 11(c) provides in part: "The court shall not accept a plea of guilty or nolo contendere from a defendant without first addressing the defendant personally and (2) informing him that by his plea of guilty or nolo contendere he waives his right to trial by jury . . . If all the defendants in a group face penalties entitling them to jury trials, the arraigning judge may then properly tell the group as a whole of their jury trial rights. The advice, however, must be unconditional, which was not the case here. . Compare Williams v. State, 616 P.2d 881, (Alaska, 1980), in which a knowing waiver of the right to a jury trial was found. In that case, the defendant was twice individually asked if he wanted a jury trial and declined to accept one. . If the construction which we place on Criminal Rule 39 is constitutionally required, a possibility noted in n.3 supra, then the Love standard may be inappropriate, and the applicable standard may be that the error must be "harmless beyond a reasonable doubt." See Love v. State, 457 P.2d 622, 631-33 (Alaska 1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied, 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967). However, we need not reach either issue in this case, since our interpretation of Criminal Rule 39 is a matter of construction rather than constitutional law, and since we are persuaded that the error here was not harmless even under the less strict Love standard. . Swensen bontends that OMVI is "commonly misunderstood," and points to the 11 pages devoted in 1 R. Erwin, Defense of Drunk Driving Cases § 1.04 (3d ed. 1979), to the meaning of "under the influence." The author's discussion, however, deals with the shadings that different jurisdictions have given to "under the influence." The core concept is simple, and is uniform: a person's ability to operate a vehicle must be impaired. . At the time of Swensen's plea, the provisions regarding mandatory revocation of a license were contained in AS 28.15.210 (ch. 74, § 1, SLA 1974), which was repealed (ch. 178, § 19, SLA 1978) and replaced by the current statute, AS 28.15.181. We urge arraigning court judges to act with appropriate caution to insure that vague statements are not made to defendants as to the possible punishments they may face, but rather that such information be fully and accurately conveyed to them. . Alaska R.Crim.P. 11(f) provides: Determining the Accuracy of Plea. The court shall not enter a judgment upon a plea of guilty without first being satisfied that there is a reasonable basis for the plea. . Fed.R.Crim.P. 11, identical in relevant part to Alaska R.Crim.P. 11(f) and upon which it was based, was added in 1966. The Advisory Committee note explains: The court should satisfy itself, by inquiry of the defendant or the attorney for the government,-or. by .examining the presentence report, or otherwise, that thfe'~eonduct 'Which the defendant admits constitutes the offense charged in the indictment or information or an offense included therein to which the defendant has pleaded guilty. Such inquiry should, e. g., protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge. See, e. g., United States v. Untiedt, 479 F.2d 1265 (8th Cir.1973) (per curiam), ordering vacation of guilty plea to stealing, receiving, possessing and concealing goods of value more than $100 which were part of an interstate shipment, when there was no showing that the goods stolen were part of interstate shipment and no discussion of the acts which defendant actually performed. See also 1 C. Wright, Federal Practice and Procedure ¶ 174 (1969 and Supp.1979). . The Fifth Circuit went on to state: We must review the exercise of that discretion, however, if an appeal is taken from it, and we must do so on the record of the Rule 11 proceeding. It is therefore incumbent upon the judge to produce a record on the basis of which we can determine that his discretion was not abused. United States v. Dayton, 604 F.2d at 938.

10447876

Arthur Lee SMITH, Jr., Petitioner, v. STATE of Alaska, Respondent; Mark Andrew CUPPLES, Petitioner, v. Priscilla CUPPLES, Respondent; STRATTON'S INC., and Robert W. Stratton, Jr., individually, Petitioner, v. KERRY PROPERTIES, INC., and Area, Inc., Realtors, Respondents

Smith v. State

1980-09-12

Nos. 4962, 5043 and 5001

863

865

616 P.2d 863

616

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:03:12.061547+00:00

CAP

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

Arthur Lee SMITH, Jr., Petitioner, v. STATE of Alaska, Respondent. Mark Andrew CUPPLES, Petitioner, v. Priscilla CUPPLES, Respondent. STRATTON’S INC., and Robert W. Stratton, Jr., individually, Petitioner, v. KERRY PROPERTIES, INC., and Area, Inc., Realtors, Respondents.

Arthur Lee SMITH, Jr., Petitioner, v. STATE of Alaska, Respondent. Mark Andrew CUPPLES, Petitioner, v. Priscilla CUPPLES, Respondent. STRATTON’S INC., and Robert W. Stratton, Jr., individually, Petitioner, v. KERRY PROPERTIES, INC., and Area, Inc., Realtors, Respondents. Nos. 4962, 5043 and 5001. Supreme Court of Alaska. Sept. 12, 1980. Terry C. Aglietti and John W. Sivertsen, Jr., Aglietti, Offret & Pennington, Anchorage, for petitioner Arthur Lee Smith. James V. Gould, Asst. Dist. Atty., Larry R. Weeks, Dist. Atty., Anchorage, and Av-rum M. Gross, Atty. Gen., Juneau, for respondent State of Alaska. James D. Rhodes, Cole, Hartig, Rhodes, Norman & Mahoney, Anchorage, for Mark Andrew Cupples. Sandra K. Saville, Kay, Christie, Fuld, Saville & Coffey, Anchorage, for respondent Priscilla Cupples. Charles E. Tulin, Anchorage, for petitioners Stratton’s Inc., and Robert W. Stratton, Jr. Harland W. Davis, Anchorage, for respondent Kerry Properties, Inc. Henry J. Camarot, Merdes, Sehaible, Sta-ley & DeLisio, Inc., Anchorage, for respondent Area, Inc., Realtors. This case was submitted to the court for decision prior to Justice Boochever’s resignation.

1266

7483

OPINION Before RABINOWITZ, C. J., and CON-NOR, BOOCHEVER, BURKE and MATTHEWS, JJ. PER CURIAM. These consolidated petitions for review involve the right to peremptorily disqualify a judge in civil and criminal cases. At issue is the correct application of the procedural rules which promulgated to implement the substantive right created by AS 22.20.022. We have granted review because of the demonstrated need for clarification of the law in this area. These petitions for review involve essentially identical fact situations. The petitioners' cases were initially assigned to a judge to handle pretrial motions. In two of the cases, Smith v. State and Cupples v. Cupples, the court made no rulings. In the third case, Stratton's Inc. v. Kerry Properties, Inc., the court ruled on several motions. Among these were motions to amend a counterclaim and to pay out monies from the court registry. The cases were subsequently assigned for trial before the same judge who had presided over the pretrial proceedings. Petitioners then invoked their peremptory challenge rights within the allowable five days after receipt of notice of the assignment of a particular judge for trial. Each notice of change of judge was in turn denied. The purpose of the peremptory challenge statute is to assure every litigant a fair hearing before a judge who is disin terested, impartial, and unbiased. See Channel Flying, Inc. v. Bernhardt, 451 P.2d 570, 575 (Alaska 1969). This right can be waived or lost by failing to make a timely challenge. Insofar as each challenge was made almost immediately after the parties learned of the judicial assignment for trial, it cannot be said that their rights to challenge were waived through untimeliness. The only remaining question is whether the petitioners waived their rights to peremptory challenges by appearing before the judges in regard to pretrial proceedings. Based on our recent opinion in Tunley v. Municipality of Anchorage School District, 617 P.2d 490 (Alaska 1980), we hold that the petitioners did not waive their rights. In Tunley, we held that a waiver under Alaska Civil Rule 42(c)(4)(i) can be found "only where the requisite participation occurs after the party is informed that the judge before whom he or she is appearing is the judge permanently assigned to hear the case or is assigned for trial." Id. at 495. In the instant cases, no petitioner was aware during the respective pretrial stages which judge was assigned to try the case. To require a party to employ a peremptory challenge against a judge who may or may not preside at trial would defeat the purpose of AS 22.20.022. Although the Tunley decision applied only to Alaska Civil Rule 42(c)(4)(i), we find the reasoning also applicable to the provisions of Alaska Criminal Rule 25(d)(5). Accordingly, the orders denying petitioners' notices of change of judge are Reversed. . Alaska R.Civ.P. 42(c) provides, in part: Change of Judge as a Matter of Right. In all courts of the state, a judge or master may be peremptorily challenged as follows: (3) Timeliness. Failure to file a timely notice precludes change of judge as a matter of right. Notice of change of judge is timely if filed before commencement of trial and within five days after notice that the case has been assigned to a specific judge. In a court location having a single resident judge of the level of court in which the case is filed, the case shall be assigned to that judge when it is at issue upon a question of fact and the clerk shall immediately notify the parties in writing of such assignment. Where a party enters an action after the case has been assigned to a specific judge, a notice of change of judge shall also be timely if filed by the party before the commencement of trial and within five days after he appears or files a pleading in the action. (4) Waiver. A party waives his right to change a particular judge as a matter of right when he knowingly participates before that judge in: (1) Any judicial proceeding which concerns the merits of the action and involves the consideration of evidence or of affidavits; or (ii) A pretrial conference; or (iii) The commencement of trial; or (iv) If the parties agree upon a judge to whom the case is to be assigned. Such waiver is to apply only to the agreed-upon judge. Alaska R.Crim.P. 25(d) provides, in part: Change of Judge as a Matter of Right. In all courts of the state, a judge may be peremptorily challenged as follows: (2) Procedure. At the time required for filing the omnibus hearing form, or within five days after a judge is assigned the case for the first time, a party may exercise his right to change of judge by noting the request on the omnibus hearing form or by filing a "Notice of Change of Judge" signed by counsel, if any, stating the name of the. judge to be changed. A judge may honor a timely informal request for change of judge, entering upon the record the date of the request and the name of the party requesting it. (4) Timeliness. Failure to file a timely request precludes a change of judge under this rule as a matter of right. (5) Waiver. A party loses his rights under this rule to change a judge when he agrees to the assignment of the case to a particular judge or participates before him in an omnibus hearing, any subsequent pretrial hearing, a hearing under Rule 11, or the commencement of trial. No provision of this rule shall bar a stipulation as to the judge before whom a plea of guilty or of nolo contendere shall be taken under Rule 11. . AS 22.20.022 provides, in part: Peremptory disqualification of a superior court judge. (a)If a party or his attorney in a district court action or a superior court action, civil or criminal, files an affidavit alleging under oath that he believes that he cannot obtain a fair and impartial trial, the presiding district court or superior court judge, respectively, shall at once, and without requiring proof, assign the action to another judge of the appropriate court in that district, or if there is none, the chief justice of the supreme court shall assign a judge for the hearing or trial of the action. The affidavit shall contain a statement that it is made in good faith and not for the purpose of delay. . Alaska R.Crim.P. 25(d)(5); Alaska R.Civ.P. 42(c)(4). For text, see note 1 supra.

12118305

L.L.M., Appellant, v. P.M., Appellee

L.L.M. v. P.M.

1988-05-13

No. S-1901

262

265

754 P.2d 262

754

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:17:18.599369+00:00

CAP

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

L.L.M., Appellant, v. P.M., Appellee.

L.L.M., Appellant, v. P.M., Appellee. No. S-1901. Supreme Court of Alaska. May 13, 1988. William T. Ford, Holly B. Leinweber, Law Office of William T. Ford, Anchorage, for appellant. Thomas A. Miller, Fairbanks, for appel-lee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

1719

10261

OPINION MATTHEWS, Justice. The parties, L.L.M. (father) and P.M. (mother), have two children. The parties divorced, and the father was awarded custody of the children with visitation rights to the mother. Under a supplemental order, the mother was given visitation rights of six to eight weeks each summer. The parties were to agree on the details. In the spring of 1986 the mother, who lives in Seattle, attempted to arrange the details of visitation with the father, who lives in Anchorage. The father refused, citing concerns about the mother's drinking problems and alleged open sexual activity. The mother then moved for an order directing the father to transport the children immediately to Seattle for their summer visit. A hearing was held on the motion on June 24, 1986 before the Standing Master. The Master suggested that the parties settle the matter by allowing visitation to begin immediately, conditioned on the mother's agreement that she would not drink alcohol, that she would attend Alcoholics Anonymous meetings each week and submit proof of attendance to the court, and that she would not engage in any sexual activity in front of the children. This was agreed to by the parties and an order was entered. The mother moved for attorney's fees and costs in connection with the motion. Over opposition an award of $1,114.54 in fees and costs was granted to the mother. The father appeals. Three points are presented on appeal: 1. The Master erred by excluding evidence relevant to the issue of summer visitation at the June 24th hearing; 2. The Master erred because he did not consider the best interest of the children relative to the issue of summer visitation at the June 24th hearing; and 3. The trial court erred in awarding the mother attorney's fees and costs. The first two points obviously lack merit, since the issue of summer visitation was resolved by the parties' agreement at the June 24th hearing. A party may not challenge on appeal an order that he has agreed to in the trial court. Reimer v. Davis, 224 Kan. 225, 580 P.2d 81, 84 (1978); Deason v. Lewis, 706 P.2d 1283, 1286 (Colo.App.1985); Miller v. Atkinson, 365 P.2d 550, 553 (Alaska 1961) (rule recognized by implication). Thus, the only question requiring review is whether the court erred in awarding the mother costs and attorney's fees. Partial attorney's fees are awarded as a matter of course under Civil Rule 82 to the prevailing party. Civil Rule 82, however, does not apply to judgments in divorce cases. In such cases costs and fees are based on the "relative economic situations and earning powers" of the parties, rather than on a prevailing party determination. Cooke v. Cooke, 625 P.2d 291, 293 (Alaska 1981) (quoting Burrell v. Burrell, 537 P.2d 1, 7 (Alaska 1975)); Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1192 (Alaska 1987). Thus, when the parties' economic status is generally equal, it is ordinarily error to make any award of costs or fees. Jones v. Jones, 666 P.2d 1031, 1035 (Alaska 1983); Cooke, supra. The divorce judgment exception to Civil Rule 82 is based on a broad reading of AS 25.24.140(a)(1), Burrell v. Burrell, 537 P.2d 1, 6 (Alaska 1975), and on the reality that there usually is no prevailing party in a divorce case. Cooper v. State, 638 P.2d 174, 180 (Alaska 1981). In the present case the trial court held that the "prevailing party standard" rather than the divorce judgment exception to Civil Rule 82 governed, noting that this was a post-judgment matter and citing O'Link v. O'Link, 632 P.2d 225 (Alaska 1981). However, the award was of actual reasonable fees rather than a partial award of reasonable fees as prescribed by Civil Rule 82. The father argues that Civil Rule 82 should not govern post-judgment custody and visitation disputes. He also contends that if Civil Rule 82 does apply, the award was erroneous because there was no prevailing party and because the award was for full rather than partial fees. The mother argues that the award was properly made under Civil Rule 82, citing O'Link; and that the full award can be justified because the father did not act in good faith. In O'Link v. O'Link, 632 P.2d 225 (Alaska 1981), we held that "when a party seeks modification of an arrearages judgment and of the property division in the divorce decree, the award of costs and attorney's fees is appropriately made under Civil Rule 82." Id. at 231 n. 15. O'Link is not dispositive, however, since it dealt with money and property issues rather than issues concerning visitation and custody. In our view it is inappropriate to use Civil Rule 82 with respect to the latter issues because of the chance that actions which are reasonable and taken in good faith to protect the best interests of children might be deterred by the possibility of large awards of attorney's fees. Further, we do not believe that the divorce judgment exception to Civil Rule 82 should govern because the statute on which the exception is based is limited by its terms to the penden-cy of the divorce action while here we are concerned with post-judgment modification and enforcement motions. Moreover, in such actions, unlike those for divorce, there often is a party who clearly has prevailed. See Cooper v. State, 638 P.2d 174, 180 (Alaska 1981) (post-judgment motion for modification of custody: "one party clearly has prevailed"). In fashioning an appropriate standard we take guidance from AS 25.24.300 which states in part: Action for failure to permit visitation with minor child, (a) When a court order is specific as to when a custodian of a minor child must permit another person to have visitation with that child, and the custodian fails, willfully and without just excuse, to permit visitation with the child in substantial conformance with the court order, the person entitled to visitation has a separate cause of action against the custodian for damages, (b) The amount of damages recoverable under this section is $200 for each failure of the custodian, willfully and without just excuse, to permit visitation with the child for substantially the length of time and substantially in the same manner as specified in the court order. This amount may not be increased or decreased once liability has been established. The custodian is not liable for more than one failure in respect to what is, under the court order, a single continuous period of visitation. The prevailing party in an action commenced un der this section is entitled to recover a reasonable attorney fee_ (Emphasis added). The statutory standard of "willfully and without just excuse" appears appropriate in determining the question of attorney's fees after a motion to amend or enforce a custody or visitation order is adjudicated. In that way the unsuccessful party who reasonably, and in good faith, believes that his or her action was justified by the best interests of the children will not be deterred from action by the possibility of an award of fees and costs. On the other hand, the possibility of an award against a litigant who has not acted reasonably and in good faith may have a deterrent effect, and in any event will compensate the successful party. In addition, there seems to be no reason why an award of attorney's fees in an action which is merely for the enforcement of visitation rights should be governed by a different standard than an award of fees in an action under AS 25.24.-300 for damages for violating the terms of a visitation order. The underlying objective of both actions is the same, compliance with the court's visitation orders. We interpret the term "a reasonable attorney fee" as set out in AS 25.24.300(b) to mean full, rather than partial, fees. Interpreting the term to mean merely partial fees would be inconsistent with the generally applicable rule that vexatious or bad faith conduct on the part of a litigant will justify an award of full fees against that litigant. Horton v. Hansen, 722 P.2d 211, 218 (Alaska 1986). Since the trial court's award of costs and fees was based on the inappropriate prevailing party standard of Civil Rule 82, rather than on a determination that the father had willfully and without just excuse failed to permit visitation, the award of attorney's fees is REVERSED and this case is REMANDED for a determination of attorney's fees and costs in accordance with this opinion. RABINOWITZ, C.J., dissents. . AS 25.24.140(a)(1) provides: (a) During the pendency of the action, the court may provide by order (1) that one spouse pay an amount of money as may be necessary to enable the other spouse to prosecute or defend the action; . The court awarded the fees incurred by the mother, except for one hour of time spent by counsel traveling to Anchorage, noting that "she could have sought an Anchorage attorney at the same rate_" . Since a good faith movant will not be subject to attorney's fees under this standard, we do not understand the statement in the dissenting opinion that this "will discourage good faith motions by non-custodial parents_"

6970068

GOLD DUST MINES, INC., Delmer M. Ackels, and Gail Ackels, Appellants, v. LITTLE SQUAW GOLD MINING COMPANY, Appellee; Gold Dust Mines, Inc., Delmer M. Ackels, and Gail Ackels, Appellants, v. Little Squaw Gold Mining Company, Appellee

Gold Dust Mines, Inc. v. Little Squaw Gold Mining Co.

2012-09-28

Nos. S-13530, S-13909

148

170

299 P.3d 148

299

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T19:07:12.233635+00:00

CAP

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

GOLD DUST MINES, INC., Delmer M. Ackels, and Gail Ackels, Appellants, v. LITTLE SQUAW GOLD MINING COMPANY, Appellee. Gold Dust Mines, Inc., Delmer M. Ackels, and Gail Ackels, Appellants, v. Little Squaw Gold Mining Company, Appellee.

GOLD DUST MINES, INC., Delmer M. Ackels, and Gail Ackels, Appellants, v. LITTLE SQUAW GOLD MINING COMPANY, Appellee. Gold Dust Mines, Inc., Delmer M. Ackels, and Gail Ackels, Appellants, v. Little Squaw Gold Mining Company, Appellee. Nos. S-13530, S-13909. Supreme Court of Alaska. Sept. 28, 2012. Rehearing Denied April 30, 2013. Thomas R. Wickwire, Fairbanks, for Appellants. Aisha Tinker Bray, Guess & Rudd P.C., Fairbanks, for Appellee. Before: CARPENETI, Chief Justice, FABE, WINFREE, and STOWERS, Justices.

12140

74704

OPINION CARPENETI, Chief Justice. I. INTRODUCTION Two mining companies entered a ten-year mining lease. The lessee was responsible for mining and prospecting claims owned by the lessor and its president. The companies entered a holdover tenancy after the expiration of the lease. During this time, an officer of the lessee company staked mining claims that overlapped with the claims his company had mined under the ten-year lease. In his own name, that officer filed location notices for the newly staked claims with the State Department of Natural Resources. The parties disagreed about who rightfully owned the claims staked during the holdover tenancy and broke off their lease agreement in October 2008. In 2007, the former lessor filed suit against the former lessee and its two officer-shareholders, seeking to quiet title to the disputed mining claims, to eject the former lessee and its officers from the claims, and to secure damages under several tort and contract causes of action. The former lessee denied various allegations, raised 18 affirmative defenses, and counterclaimed for the value of labor performed on the claims. Following a three-week trial, the superior court resolved the dispute in favor of the former lessor. The former lessee filed two appeals of post-trial orders, which we have consolidated for decision. We affirm the superior court on all but one issue: Because specific findings are needed to pierce the corporate veil, we reverse the entry of judgment and the award attorney's fees against the wife of the officer of the lessee company and remand for further proceedings. II. FACTS AND PROCEEDINGS A. Background: Mining Laws This case arises under our state's mining laws. Because the relevant facts are intimately related to the requirements of state mining statutes, we begin by briefly describing the legal background of this case: Under Alaska law, mining rights on state lands are acquired through the process of "location." This process entails the discovery [of valuable minerals] and marking of the claim, the posting of a notice at the claim site, and the recording of a certificate of location [with the Department of Natural Resources]. Through location, a locator acquires a mining claim priority against subsequent locators to the selected claims.[ ] Although the locator does not have exclusive use of the surface estate of a mining claim, the locator may exclude other parties from unreasonable uses of the surface estate. An attempted location is void if it overlaps with mining claims held by others. The locator of a mining claim, when filing a location notice with the Department of Natural Resources, gives the claim a name. (Many long-standing mining claims, including some of the claims in dispute here, have colorful names.) In addition to its name, each claim can be identified by a unique Alaska Department of Land or "ADL" number. The names and numbers identify surface estates no greater than 160 acres, and often only 40 acres. Many traditional mining claims are not perfect squares staked along north-south, east-west lines. Under the Department of Natural Resources' modern claim-recording system, the geographic location of a claim is identified by reference to the meridian, township, range, section, quarter-section, and quarter-quarter-section coordinates of the public land survey system. The MTRSC system requires miners to locate claims along north-south, east-west lines This system has not extinguished the validity of traditional mining claims previously recorded under the non-MTRSC system. The MTRSC system was adopted to "improve accuracy, accessibility, and timeliness of [claim location] data." The state's centralized claim-recording system makes it easy to compare the geographic locations of recorded claims, and if the recorded information is accurate, to identify overlapping claims. In order to maintain a mining claim, the locator must comply with various statutory requirements. These include making annual rental payments to the state and performing annual labor for the benefit of the claim. To satisfy the annual labor requirement, the claim-holder must submit annually to the Department of Natural Resources an affidavit attesting to the work performed. When work performed in a given year exceeds the statutory requirement for that year, "the excess value may be applied against labor required to be done during the subsequent year or years, for as many as four years. The claim-holder may be required to obtain a permit for certain uses of the surface estate while mining. Failure to comply with certain statutory requirements constitutes abandonment of a mining claim. However, in some circumstances, a claim holder may eure the abandonment that resulted from a failure to record annual labor or pay rents as required. In addition to statutes and regulations, mining rights are governed by longstanding common law and equitable doctrines, includ ing the rules of contract law governing mining leases. B. Facts Little Squaw Gold Mining Company is an Alaska corporation that has held mining claims in the Chandalar mining district since the early 1970s. In 1972, Little Squaw obtained the rights to various mining claims from Eskil Anderson, who exchanged these claims for shares of Little Squaw stock and became Little Squaw's president that year. In the 1980s, Anderson and Hollis Barnett located new claims on behalf of Little Squaw, including Upper Discovery on Big Creek (ADL 515447), Number Five Below Upper Discovery on Big Creek (ADL 515452), and Number Two Above Discovery on Little Squaw Creek (ADL 515445). Around the same time, Anderson located, in his own name, other claims that he later transferred to Little Squaw, including Star East Fraction (ADL 515473) and Golden Eagle Fraction. (ADL 515474) Although these claims were located by Anderson, Little Squaw managed these claims from discovery onwards. Gold Dust Mines, Inc. is an Alaska corporation. Its sole shareholders, directors, and officers are Delmer M. Ackels (Del) and Gail E. Ackels (Gail) (In this opinion, we use "Gold Dust" to refer to the appellants collectively and "Gold Dust Mines" to refer to the company.) Del began mining on Gold Dust Creek in the late 1960s and in the Chandalar district in 1989. In 1989, Gold Dust Mines entered into a ten-year lease with Little Squaw, and Del personally guaranteed the company's obligations under the lease. Under the terms of the lease, Gold Dust Mines was to mine and prospect Little Squaw's Chandalar district mining claims and complete the statutorily required annual labor on those claims. In addition, Gold Dust Mines was required to pay Little Squaw an annual fee and a percent of royalties on minerals and metals extracted. In 1999, Little Squaw managed 112 mining claims in the Chandalar mining district, including several mining claims relevant to the present dispute. Little Squaw was required to complete $11,200 of labor to meet the statutory labor requirement on those claims. That year Del completed $108,000 worth of work on behalf of Little Squaw, including airstrip and road maintenance, mine-site preparation, stripping, processing, and reclamation on Little Squaw's claims 7 Below Discovery on Big Creek, 7 Below East on Big Creek, and other unspecified locations on Tobin Creek and Big Creek. He submitted to the Department of Natural Resources an affidavit describing this work and listing the 112 mining claims that Little Squaw managed at the time. In 1999, Gold Dust Mines' compliance with other terms of the lease faltered. The company failed to make its annual payment to Little Squaw. It also failed to pay the royalty due on production and state rental payments due on Little Squaw's claims. Around that time, Del was having financial trouble; he asserts that his mining business suffered as a result of broken equipment and a dispute with the equipment dealer. Both Del and Gail filed a petition for personal bank-ruptey in February 2000, five months after the scheduled expiration of Gold Dust Mines and Little Squaw's ten-year lease. On the bankruptey petition, Gold Dust Mines was listed among the assets as an "inactive" company without liabilities or assets. The lease with Little Squaw was listed under the heading of executory contracts and unexpired leases in which the debtors have an interest. Little Squaw was listed as a debtor for the sum of $7,500, the amount of the lease payment that Gold Dust Mines owed from 1999. Around 2000, by failing to make statutorily required payments to the state, Little Squaw abandoned 86 of the mining claims it managed in the Chandalar mining district. The record strongly suggests that the missed payments and abandonment were the result of Gold Dust Mines' failure to pay Little Squaw $7,500 due under the lease in 1999. Little Squaw and Anderson held on to the remaining 26 mining claims, including Number Two Above Discovery on Little Squaw Creek (ADL 515445); Upper Discovery on Big Creek (ADL 515447); Number Five Below Upper Discovery on Big Creek (ADL 515452); Star East Fraction (ADL 515478); and Golden Eagle Fraction (ADL 515474). In 2000, Little Squaw relied on excess assessment work that Del had performed in 1999 in order to comply with state labor requirements for its 26 claims in the Chanda-lar mining district. Although the parties continued to communicate about the mining claims through 2003, they dispute whether they renewed the terms of the original lease upon its expiration in 1999. Gold Dust Mines did not make payments under the lease between 2000 and 2002. However, during this period, Del's mining equipment remained on the surface of claims that, as Gold Dust Mines' agent, he had mined for Little Squaw. Little Squaw maintained that Gold Dust Mines and Little Squaw continued to operate under the terms of the lease in a "holdover tenancy" until October 2003. Del asserted that in 2000 he and Little Squaw were operating under the terms of a separate oral contract, which allowed him to store his equipment on Little Squaw's claims in exchange for performing annual labor on the claims. A jury ultimately found that a holdover tenancy existed agd that the parties were not operating under fhe terms of a separate oral contract. In July 2008, Del recorded with the Department of Natural Resources location notices for various mining claims he had staked that summer. There is evidence suggesting that all of these claims overlap with the locations that Del had mined for Little Squaw under their 1989 lease agreement. In 2008, Richard Walters replaced Eskil Anderson as president of Little Squaw. Around the same time, Anderson transferred to Little Squaw title to Star East Fraction and Golden Eagle Fraction, two claims that Little Squaw had managed since the late 1980s. In September 2003, Walters and Del Ackels had a confrontation at a Fairbanks restaurant. Shortly thereafter the holdover tenancy was terminated. In 2008 and 2004, Little Squaw recorded new location notices for mining claims that overlapped with its previously recognized claims. It identified the relevant claims as: LSGMC 811 (ADL 641856) LSGMC 910 (ADL 641528); LSGMC 911 (ADL 641529); LSGMC 912 (ADL 6415830); LSGMC 1012 (ADL 641540); LSGMC 1117 (ADL 641553); and [2004] No. Two Above Discovery (ADL 645852). After Little Squaw had re-staked some of its claims, Gold Dust Mines filed amendments to correct errors in some of its 2008 filings. Three amendment notices changed the recorded locations of GDM 1, GDM 2, and LSO 4; and one corrected a deficiency in the location date of GDM 17. During the course of this competitive staking, the parties communicated with employees at the Department of Natural Resources about the validity of the claims and amendments filed in 2003 and 2004. In September 20083, the Department invited Del to amend deficient posting dates in the Location Notices for GDM 16 and GDM 17 and notified him that GDM 17 might conflict with one of Little Squaw's claims (Number 5 Below Upper Discovery; ADL 515452). In the fall of 2008, shortly before the trial to resolve this dispute began in superior court, the Department of Natural Resources issued a written determination stating that four Amended Location Notices filed by Del Ackels for GDM 1, GDM 2, GDM 17, and LSO 4 were invalid. C. Proceedings In February 2007, Little Squaw filed suit in superior court alleging that Gold Dust improperly staked and recorded claims that belonged to Little Squaw. The complaint presented 16 causes of action including quiet title, removal of clouds on title, efectment, trespass, conversion of gold and other personal property, conversion of information, breach of contract, breach of fiduciary duty, piercing the corporate veil, and indemnity for liabilities of Gold Dust Mines. In its answer to the complaint, Gold Dust denied various allegations and raised 13 affirmative defenses including statute of limitations, forfeiture of mining claims, discharge in bank-ruptey, estoppel, laches, unclean hands, breach of covenant of good faith and fair dealing, and several reasons that the lease was not enforceable (including lack of consideration and performance excused by breach). Gold Dust also counterelaimed for $52,000 for assessments that it performed on claims that Little Squaw abandoned. Superior Court Judge Randy M. Olsen resolved some issues on summary judgment, decided others by directed verdict, and submitted others to a jury. Based on trial testimony, the court reversed a partial grant of summary judgment that it had issued earlier in the case concerning Gold Dust Mines' right to stake claims on its own behalf under the terms of the lease. At trial, Gold Dust attempted to show that by failing to satisfy statutory requirements in 2000, Little Squaw had abandoned the relevant claims and had no rights in those claims under the lease. In turn, Gold Dust argued that the lease was invalid and that it owed Little Squaw no duty to stop from staking claims. At trial, Little Squaw maintained that it had preserved its rights to the disputed claims, with which Del and Gold Dust Mines improperly interfered. After a three-week trial, the case was resolved in Little Squaw's favor. Using factual determinations made by the jury, the court concluded that Little Squaw was not time-barred from bringing its claims, recognized Little Squaw's title to the disputed mining claims, granted judgment to Little Squaw on the ejectment and trespass claims, dismissed Gold Dust's counterclaims, and authorized Little Squaw to pieree Gold Dust Mines' corporate veil (thereby holding the Ackelses personally liable) for losses arising after 2003. These conclusions were summarized in the superior court's written findings and conclusions of March 20, 2009. After trial and before the superior court issued its findings of fact and conclusions of law, Del submitted an application to the Department of Natural Resources for a five-year permit to mine claims located at Township 31, Range 3 West, Sections 10, 15, and 16. Del traveled to those claims in March 2009 and obtained a copy of the court's findings and conclusions upon his return to Fairbanks. Following the entry of the superior court's order, Del applied for another permit to mine in Fairbanks Meridian, Township 31 North, Range 3 West, Section 28. In July 2009, Del traveled to these claims to begin mining them for the season. Little Squaw believed that Del was mining within the boundaries of its claims and moved for the superior court's intervention. On July 29, 2009, the superior court issued an Order in Aid of Final Judgment, which ordered Del off all of Little Squaw's mining claims. Following his receipt of this order, Del stopped his mining activity. In November 2009, the superior court held a hearing in which it considered Little Squaw's motion to hold Del in contempt for refusing to obey court orders. The superi- or court concluded that "[Del's] explanation [of his 2009 mining activity] is flaky, but not illegal . there's enough wiggle room . not to find that he was in contempt of the court order." At the end of that hearing, the superior court explained that it would address the issue of reclamation costs resulting from the 2009 mining at another time. Following a hearing on damages in May 2010, the superior court ordered Gold Dust Mines and the Ackelses to pay $15,862.24 for the costs of reclaiming the land Del mined in July 2009. This damages award was based on the superior court's conclusion that Del's 2009 mining activity took place within the boundaries of Little Squaw's GRMC 14 and 15 claims, and not within the boundaries of GDM 18. The superior court entered an enhanced attorney's fees award, naming Little Squaw the prevailing party. Gold Dust Mines and Del and Gail Ackels appeal the superior court's findings and conclusions of March 2009 as well as the post-trial order for damages arising from the summer 2009 mining activity. We have consolidated these two appeals. III. STANDARD OF REVIEW This case involves both factual and legal questions. The court's factual findings -such as those concerning eredibility and why Del Ackels stopped mining in 2009-should not be overturned unless they are clearly erroneous. In reviewing questions of law-here, concerning the application of state mining statutes and regulations-we "adopt the rule of law that is most persuasive in light of precedent, reason and policy." Attorney fee awards are reviewed for abuse of discretion. We will not reverse an award unless it is "manifestly unreasonable." IV. DISCUSSION The issues before us are complicated. In the 15-part discussion that follows, we explain our resolution of each of Gold Dust's arguments. But at the outset, we note the similarity between this case and Miscovich v. Tryck. The equitable reasoning utilized in that case helps resolve much of the present dispute. In Miscovich, we affirmed the application of a constructive trust in an action to quiet title to disputed mining claims, relying on the following rule: One who has contracted or agreed to perform annual assessment work on a claim cannot, by relocating it after his failure to do the work, acquire any interest adverse to that of the prior elaimant. Courts have either held his location void, or held him to be trustee for the benefit of the prior locator.[ ] That is just what the superior court did in the present case. Based on the jury's finding that the lease was in operation until October 2008, the superior court concluded that 20 claims Del staked in July 2008 were held in constructive trust for Little Squaw. Based on our review of the record, we believe the award of best title to Little Squaw was justified. Evidence in the record suggests all of the claims awarded to Little Squaw overlapped with locations Gold Dust had mined for Little Squaw under the 1989 lease. Although the parties here did not give much attention to that case, it was clearly instructive to the superior court and provides a context for the parties' dispute. A. The Superior Court Did Not Err In Reversing Its October 3, 2008, Partial Order Of Summary Judgment. Gold Dust argues that we should reverse the jury finding that the mining lease was in operation until October 2008 and reinstate the court's earlier summary judgment ruling interpreting the contract. According to Gold Dust, the superior court's decision to reverse its earlier summary judgment ruling more than a week into the trial was barred by the law of the case doctrine. It seems to further argue that the court's decision to reverse its earlier ruling was procedurally unsound and resulted in prejudice: "If Ackels had thought that going to trial on the remaining issues would put the claims and rights awarded him by summary judgment at risk, he would have weighed the trial risks differently, altered his settlement position, and perhaps the case would have settled." Little Squaw defends the superior court's decision to reverse its earlier summary judgment ruling based on Del's trial testimony. Citing our precedents in West v. Buchanan and Bylers Alaska Wilderness Adventures, Inc. v. City of Kodiak, Little Squaw contends that the superior court may reconsider a prior ruling that is unreasonable or untenable. Little Squaw explains that Del's own testimony about the meaning of the lease prompted the superior court's decision to revisit the contract issue and points out that Gold Dust failed to raise any objection when the superior court stated its intention to revisit the earlier ruling. "The law of the case doctrine in Alaska 'generally requires adherence by a lower court to an appellate court's decision and generally prohibits reconsideration of issues which have been adjudicated in an appeal of the case'" But "a superior court judge's failure to follow an order of a prior superior court judge does not violate the law of the case doctrine." The law of the case doctrine is of limited relevance in evaluating the superior court's decision to vacate a pretrial ruling, and it does not apply here. Gold Dust's second argument invokes a more relevant legal concept-prejudice resulting from party's reliance on a court's earlier ruling. But this argument also misses the mark. As we explained in West, "it is entirely reasonable for a judge whose responsibility it is to try a case to reconsider and reverse an earlier ruling if convinced that that ruling was erroneous." We have not before addressed the circumstances in which a superior court can reverse its own prior ruling, but the policy applied in West and Byler applies here with equal force; that is, the superior court should be allowed to reconsider and reverse an earlier ruling if convinced that the earlier ruling was erroneous. In this case, the court was compelled to reverse its earlier ruling because Del testified at trial that any claims he staked under the lease would have been staked for Little Squaw. The court's earlier interpretation of the contract was untenable in light of this testimony and at odds with our reasoning in Miscovich. Moreover, the superior court's decision to reverse its earlier interpretation of the contract still left open the question of how long the contract was in operation, and the parties litigated this issue vigorously. Finally, because Gold Dust did not object to the superior court's treatment of the contract issue at trial, we review this question for plain error. We find no plain error in the superior court's decision. Moreover, we perceive no prejudice to Gold Dust as a result of the superior court's decision to reverse its earlier summary judgment ruling. B. Jury Instruction No. 18 Was Not Erroneous. Gold Dust challenges the superior court's Jury Instruction No. 18 because it did not require a finding of agreement between the lessor and tenant as to the consequences of a lessee continuing in possession after the termination of the lease. And it argues that whether the lease was in operation after 2000 should not have been submitted to the jury because Little Squaw was incapable of leasing out claims it had abandoned. Thus, Gold Dust maintains that there could not have been a meeting of the minds over whether to extend the lease. Little Squaw responds that the jury instruction properly stated the law governing holdover tenancy and points out that Gold Dust failed to object to the instruction at trial. Little Squaw further contends that it did not abandon any of the mining claims at issue in this litigation. In the absence of a proper objection, we "will not review a jury instruction unless the instruction constitutes plain error." Our law on holdover tenancies is quite clear; "[When a tenant continues in possession, or holds over, beyond the term of a lease, the landlord has the election of treating him as a trespasser or permitting him to remain in possession." If the landlord chooses to treat the tenant as a holdover, the landlord may continue to collect rents under the lease. Alternatively, if the landlord elects to treat the tenant as a trespasser, the landlord may evict the tenant and seek damages for the reasonable value of the use of the premises. The landlord, however, may not choose to pursue both remedies. In this case, the court instructed the jury, in relevant part: If the lessee is a holdover the landlord has two choices of action: a. Eviction-the lessor may treat the holdover lessee as a trespasser and evict him. b. Creation of periodic tenancy-The landlord in his sole discretion, may bind the lessee to a new periodic tenancy. The terms and conditions of the expired lease apply to the new tenancy. If the original lease was for a term of more than one year, a year-to-year tenancy results from holding over. This jury instruction is not plain error; indeed, it provides a clear statement of the governing law. Because Gold Dust did not object to the instruction, we need not address the effect of the alleged abandonment on the lease. We find no error. C. Del Ackels's Personal Bankruptcy Does Not Bar The Operation Of A Holdover Tenancy. Gold Dust argues that any obligations under the lease were extinguished when the Ackelses filed for bankruptey in 2000. Little Squaw contends that the bankruptcy order did not extinguish Gold Dust Mines' obligations under the lease because the company's obligations resulted from its conduct after Del filed the bankruptcy petition. A discharge order from a bank-ruptey court prohibits creditors from collecting prior debts subject to the discharge. The bankruptcy code looks to state law to determine when a corporate entity is a legal person distinct from its shareholders. Although we have not specifically considered whether a person filing personal bankruptcy and a company owned by that person are distinct legal entities, the conclusion that the individual debtor and a company co-owned by the debtor are distinct flows directly from the foundations of Alaska corporate law. On February 1, 2000, Del and Gail Ackels filed a voluntary petition for Chapter 7 bankruptcy. Three months later, the U.S. Bankruptcy Court ordered a discharge "to the person[s] named as the debtor{[s]," Delmer M. and Gail E. Ackels. These bankruptcy proceedings did not discharge the obligations of Gold Dust Mines, a distinct legal entity. The superior court did not err in concluding that the bankruptcy did not discharge Gold Dust Mines' debts. D. The Superior Court Did Not Err In Concluding That Claims Staked By Del Ackels In 2003 Were Held In Constructive Trust For Little Squaw. Gold Dust challenges the superior court's interpretation of the lease in the companion case, S-18909. It argues that the superior court improperly ruled "that Ackels was the agent of Little Squaw when he staked and filed his claims in 2003." Little Squaw again defends the superior court's interpretation of the lease. It argues that any claims Del staked during the holdover tenancy were staked on behalf of Little Squaw. A constructive trust is an equitable remedy that becomes available upon clear and convincing proof that a party holds a property interest "by reason of unjust, unconscionable, or unlawful means." In imposing a constructive trust, the court vests the ill-begotten property interest in the wronged party. A constructive trust is an appropriate remedy when a mining claim lessee stakes over claims that he is obligated to maintain for the lessor. As noted above, in Miscovich, we held that a party agreeing to perform annual assessment work cannot, by relocating the claim after failing to do the work, "acquire any interest adverse to that of the prior claimant." In the present case, the superior court was guided not only by the equitable principles of Miscovichk but by Del's own testimony about the terms of the lease between Gold Dust and Little Squaw. At trial Del testified that any claims he staked under the operation of the lease would have been staked for Little Squaw. On this basis, the superior court concluded that claims Del staked during the holdover tenancy were held in constructive trust for Little Squaw. We find no error. E. The Superior Court Did Not Err In Ruling On The Frustration Of Purpose Contract Defense. Gold Dust also seems to argue that the lease could not have been in operation under the doctrine of frustration of purpose. At trial it proposed a jury instruction on frustration of purpose, which the superior court declined to use. Little Squaw maintains that Gold Dust failed to object to the ruling on frustration of purpose and argues that the court correctly instructed the jury. We have recognized "frustration or supervening impossibility" as a defense to enforcement of a contract. Under this defense, performance is excused if, without fault of either party, an implied condition of the contract is not met. Frustration of purpose is applicable where "parties enter into a contract on the assumption that some particular thing essential to its performance will continue to exist and be available for the purpose and neither agrees to be responsible for its continued existence and availability. » In the present case, neither party suggests that maintaining the validity of the claims was outside the seope of the parties' agreement. In fact, each party asserts that the other failed to satisfy an obligation related to maintaining the premises. Thus, the doctrine of frustration of purpose does not apply here. We reject Gold Dust's argument that the lease was ineffective under the frustration of purpose doctrine. F. The Superior Court Did Not Err In Applying The Ten-Year Statute Of Limitations To Little Squaw's Claims Of Best Title To The Mining Claims Staked And Filed During The Lease. Gold Dust argues that Little Squaw's claim of best title to the mining claims staked in 2008 is a "bootstrap argument" that depends on the operation of the lease at the time the claims were staked. According to Gold Dust, the three-year statute of limitations for contracts bars Little Squaw from asserting best title to the mining claims staked in 2008 because Little Squaw filed suit in February 2007, three years and four months after the lease was terminated. Little Squaw defends the superior court's decision to apply the ten-year statute of limitations for actions involving title to real property. It argues that the statute of limitations for contracts does not apply because Little Squaw "was not seeking any damages for the non-payment of rents or royalties during the lease, or the failure to do any act required under the lease." -In determining which statute of limitations applies, we look to "the nature of the injury alleged, rather than to the technical cause of action." We have also "expressed a policy of applying the longer of two limitations periods if two limitations statutes apply to a claim." In this case, we must decide between the three-year statute of limitations that applies to contract actions and the ten-year statute of limitations that applies to actions to recover real property. Had Little Squaw sought contract damages, Gold Dust's argument that the statute of limitations has expired would be appropriate. But the remedy Little Squaw seeks is title to its mining claims, not breach-of-contract damages. While the leading issues changed over the course of the litigation, the claims Little Squaw pursued at trial and continues to defend on appeal are aptly characterized as claims seeking best title to the disputed mining claims. Under our pree-edent, the superior court's decision to apply the ten-year statute of limitations to these claims was proper. In addition, we find no error in the superi- or court's decision to award Little Squaw damages for trespass, a claim that is subject to a six-year statute of limitations that has not expired. Because no damages were awarded for conversion of gold, we need not consider whether the proper statute of limitations was applied to that claim. G. The Superior Court's Ruling On The Department Of Natural Resources' November 11 Determination Is Not Reversible Error. Gold Dust argues that the superior court improperly deferred to the 2008 adjudication of the mining claims by the Department of Natural Resources, which determined that four Amended Location Notices filed by Del were invalid. According to Gold Dust, the decision was "issued without statutory authority, without notice, or an opportunity to offer evidence or argument, was not the result of a procedure that provided due process and was issued after at least two ex parte communications with Little Squaw." Gold Dust further argues that the particular employee who issued the adjudication in this case was not authorized to do so, that the opportunity for administrative appeal of Department of Natural Resources decisions is inadequate to remedy the injuries of an improper adjudication, and that Little Squaw was not required to comply with the same administrative requirements as Gold Dust. Little Squaw contends that the superior court reasonably and justifiably relied on the Department of Natural Resources' adjudication of the Ackelses' amendments to their mining claim location notices. Alaska mining statutes authorize the commissioner of the Department of Natural Resources to oversee the implementation of the Alaska Land Act. This includes the authority to adjudicate disputed mining-claim amendments, which must be recorded with the Department. The commissioner may delegate this authority to Department employees as "necessary to carry out the provisions and objectives" of the governing statute. Although these adjudications are not governed by the Alaska Administrative Procedures Act, the Department's authority is constrained by constitutional and statutory requirements, as well as by the Department's own regulations and judicial review. In this case, the Department of Natural Resources issued a letter on November 11, 2008, which concluded that four mining-claim amendments filed by Del were invalid on the ground that they overlapped with Little Squaw's existing claims. It is clear from the face of the November 11 letter that ex parte contacts with Little Squaw's president, Dick Walters, prompted the Department's adjudication of the amendments in question. These ex parte contacts and the timing of this letter-issued just over three weeks before trial, more than three years after Del's amendments were filed-raise serious doubts about the fairness and adequacy of the Department's process for adjudicating mining claim disputes. Furthermore, we share Gold Dust's concern that deference by the superi- or court to the adjudication in these unusual cireumstances would have been misplaced. But the superior court here did not defer to the administrative agency. As to the first of the four claims in question, GDM 17, Gold Dust's opening brief states: The court ruled this letter was a decision of an administrative agency and adopted its findings before trial began, by "directed verdict," . and told Ackels his remedy was an administrative appeal. This took GDM #17 from Ackels and removed Ack-els'[s}] claim to it from the trial. But the superior court did not, in fact, remove ownership of GDM 17 from the issues to be resolved at trial. The court specifically stated, "we'll still go forward with 17 and we'll see how that shakes out." The parties presented evidence about GDM 17, and halfway through the trial, the court reiterated its understanding that ownership of GDM 17 remained an issue in dispute. On the special verdict form, the jury specifically found that Del had not satisfied the statutory requirements for staking and recording that claim. On the basis of the jury verdict, the superior court granted Little Squaw title to GDM 17. Because title to GDM 17 was litigated at the trial and properly submitted to the jury, we find no error in the superior court's decision to award this claim to Little Squaw. As to the three other parcels that were the subject of the DNR letter-LSO 4, GDM 1, and GDM 2-Gold Dust was given the opportunity at the outset of trial to contest the correctness of the agency decision. It indicated that it was not at that time in a position to do so. The superior court, noting that "Injow's the time [for triall," then stated that "those [parcels] are not a matter for trial," and that Gold Dust would have to appeal the agency decision if it believed the decision to be flawed. It is true that the time between the agency decision and the start of trial was short. But Little Squaw-faced with the same time limitation-had investigated and was prepared to present evidence supporting the agency decision, while Gold Dust admitted that it was "not in a position to contest." And Gold Dust did not seek a continuance of trial (to allow it either to present evidence at trial or to appeal the DNR's administrative decision). In these cireumstances, the superior court's decision to allow the uncontested decisions of the agency to stand was not error. H. The Superior Court Did Not Err In Attributing Excess Labor Performed By Del In 1999 To Little Squaw. Gold Dust challenges the superior court's ruling that Little Squaw could use excess labor performed by Del in 1999 in order to satisfy its statutory labor requirements in subsequent years. Gold Dust argues that when Little Squaw abandoned 86 of its mining claims around 2000, Little Squaw's remaining 26 claims were no longer adjacent to or in common ownership with the claims on which labor had been performed. According to Gold Dust, Little Squaw was not entitled to carry forward excess labor that had been performed on abandoned claims. Gold Dust may also be arguing, as it did at trial, that because the affidavit submitted in 1999 did not specifically state that exeess labor would be carried forward, Little Squaw was barred from applying the excess $96,000 of labor to future years. Little Squaw defends the superior court's ruling. It argues that Del was equitably estopped from relying on deficiencies in the affidavit of labor that he submitted in 1999 because both he and Little Squaw believed that the claims on which Del performed labor were part of a common claim group. Further, Little Squaw argues that labor performed outside the boundaries of the mining location may qualify as annual labor if it develops or benefits the location. As noted above, AS 38.05.210 requires annual labor be performed "on or for the benefit or development of each mining claim." If adjacent claims are held in common, labor performed on any of the claims may satisfy the statutory labor requirement for the other claims. Excess labor performed in a given year may be carried forward for up to four years. The owners of these mineral rights must submit annually to the Department of Natural Resources affidavits attesting to the work performed on their claims. In Ashbrook v. O'Harra, we held that a former mining claim lessee was equitably estopped from challenging the accuracy of affidavits of labor that he submitted on behalf of the lessor. The superior court applied the same rule in this case. We find no error. Insofar as Gold Dust argues that Little Squaw cannot carry forward excess labor because it did not state its intention to carry forward the excess in 1999, we reject that argument. Excess labor can be carried forward even where the affidavits submitted do not include "an express statement that excess labor will be carried over." I. The Superior Court Did Not Err In Awarding Little Squaw Title To GDM 16. Gold Dust argues that the superior court's decision to grant Little Squaw title to GDM 16 constitutes legal error because this mining claim was neither pleaded in the complaint nor tried before the jury. Little Squaw responds that GDM 16 was properly granted to Little Squaw because this claim "was both pled by Little Squaw in its Complaint and by the Ackels in their Counterclaim, and was actively litigated by both parties at trial." We have recognized that issues not raised in the pleadings may be tried by implied consent of the parties. These issues "shall be treated in all respects as if they had been raised in the pleadings." Although GDM 16 was not specifically pleaded in the complaint, that document did seek "a court order imposing a constructive trust in favor of Little Squaw on the claims asserted by [Gold Dust]." This appears to refer to all claims staked by Gold Dust, including GDM 16. In addition, Gold Dust sought to quiet title to GDM 16 in its counterclaims. The court heard evidence about Del's compliance with the statutory requirements for staking GDM 16, and Gold Dust's attorney did not object to the admission of the location notice for GDM 16. Later, the attorney voiced concerns about submitting claims to the jury that were not in dispute, but after some discussion with the court, both parties agreed to an open-ended jury instruction, which allowed the jury to list GDM 16 as an improperly staked claim. On the basis of this jury finding, the superior court granted Little Squaw title to GDM 16. Because this claim was both generally covered in the pleadings and specifically tried by consent, we find no error in the superior court's decision to award it to Little Squaw. J. The Superior Court Did Not Err In Ejecting Del From Little Squaw's Mining Claims. Gold Dust challenges the superior court's post-trial ejectment order. It argues that the superior court improperly "merged the surface estate into the mineral estate" when it ordered Del off the surface of Little Squaw's claims. According to Gold Dust, the superior court interfered with the Department of Natural Resources' permitting process and lacked the authority to do so. Little Squaw defends the superior court's ejectment order. Little Squaw argues that it was entitled to an ejectment order restoring its possession of the disputed mining claims and that Del continued to interfere with Little Squaw's property rights even after the superior court awarded Little Squaw title to the disputed claims. Under Alaska law, a person who acquires mining rights to located claims also has rights to make use of the corresponding surface estate as "necessary for the prospecting for, extraction of, or basic processing of minerals." The mining claimant's rights are "subject to reasonable concurrent uses." We recognized in Shope v. Sims that the holder of a mining claim may have a claim for ejectment under AS 09.45.630. The same holds true today; a mining claimant may recover possession of property by showing that he has the right to possession of the claim from which he has been improperly ousted. Following the trial in this case, Del applied for a five-year mining permit to mine claims located at Township 31, Range 3 West, See-tions 10, 15, and 16. He traveled to those claims in March 2009 while the superior court's resolution of the issues litigated at trial was still pending. While Del was in transit, the superior court issued written findings and conclusions which stated: Based on the conclusion that [Little Squaw] is the holder of best title to its mining claims No.2 Above Discovery on Little Squaw Creek and Star East Fraction, Golden Eagle Fraction, Upper Discovery, and No.5 Below Upper Discovery on Big Creek as well as those claims staked by [the Ackelses] in July 2003, LSQ #2-#4 and GDM # [Little Squaw] is entitled to an order ejecting [the Ackelses] from those claims and [Little Squaw)'s structures on those mining claims, specifically including, but not limited to, vacating and removing all their personal property from the eabin, tool shed, and all other structures on No.5 Below Upper Discovery. [The Ackelses]} must make prior arrangements with [Little Squaw] for the removal of their personal property from [Little Squaw)'s property, the court recognizing that [the Ackelses], along with the public in general, retain the right to use the airstrips on [Little Squaw)'s mining claims, and has access across the surface of the claims. Following the entry of this judgment, Del applied for another permit to mine GDM 18. In July 2009, Del traveled to these claims to begin mining them for the season. As addressed further below, the parties disagree about whether Del's July 2009 mining activity took place within the boundaries of Little Squaw's mining claims. On July 29, 2009, the superior court issued an Order in Aid of Final Judgment, which ordered Del off all of Little Squaw's mining claims. Following his receipt of this order, Del stopped his mining activity. Gold Dust seems to argue that the superior court's order ejecting Del from Little Squaw's claims was improper because it required him to vacate the surface of the mining claims. This argument fails Shope makes clear that a court may order a trespasser to vacate a mining claim. Moreover, in this case, the superior court's eJectment order was not overly broad. The post-trial findings and conclusions recognized that Del, along with the public in general, may access the surface estate in ways that do not unlawfully or unreasonably interfere with Little Squaw's use of the claim. The later Order in Aid of Final Judgment was similarly limited to ejecting Del from Little Squaw's claims. We find no error in the superior court's ejectment orders. K. The Superior Court Did Not Err In Concluding That Del's 2009 Mining Activity Took Place Within The Boundaries Of Little Squaw's Mining Claims. Gold Dust argues that Del's July 2009 mining took place within the boundaries of his claim GDM 18 and cannot support the post-judgment award of damages for reclamation costs. Gold Dust maintains that "there was no dispute over where Ackels was mining in 2009, (just over how to describe its location)." It argues that because the only evidence concerning where the GDM 18 stakes were placed was Del's testimony, there should be no dispute that the mining took place within the boundaries of GDM 18. According to Gold Dust, the location of the GDM 18 stakes (not the description in the GDM 18 Location Notices) controls the boundary determination. It insists that this question of law-whether the description of the claim controls over the physical placement of the claim stakes-resolves the appeal of the reclamation damages award. By contrast, Little Squaw contends that "the issue is truly whether the trial court{'s] finding [concerning the location of] . Ack-els's undisputed mining activities in 2009 . was clearly erroneous." According to Little Squaw's expert witness, James C. Barker, Del's 2009 mining took place within the boundaries of Little Squaw's GRMC 14 and 15 and on open state land subsequently staked by Little Squaw as GRMC 80. Gold Dust concedes that the 2009 mining activity took place where Barker identified it on photographs. Gold Dust does not specifically concede-nor specifically deny-that Del's 2009 mining took place in Township 31 North, Range 3 West, Sections 21 and 28, and it does not offer any definitive statement about where the 2009 mining took place in terms of GPS coordinates or township, range, and section coordinates. Instead, Gold Dust relies on Del's testimony that all his 2009 mining activity took place within the boundary marked by his GDM 18 stakes,. The closest Del comes to locating his GDM 18 claim in geographic terms is his testimony that Barker identified the claim "much farther down the creek" than Del believed it to be. Gold Dust maintains that because Del had staked his claims 100 feet short, the corner posts of GDM 18 "would be quite far from the corners of the quarter-quarter seetion" listed on the Location Notice. Gold Dust's position that Del's 2009 mining took place within the boundaries of his claim GDM 18 depends on his testimony about the location of the GDM 18 stakes-testimony that the superior court specifically discredited. Particular deference is due to the superior court's credibility determinations. Even if we accept Gold Dust's legal argument that the physical location of the stakes controls over the description of the location, that alone would not justify reversing the superior court's damages award. Reversing the superior court's damages award is justi fied only if Del had produced definitive evidence of the stake locations that refuted the information on the GDM 18 claim notice. But Gold Dust did not meet this burden. Its evidence fell far short of being definitive. In fact, Del's testimony was riddled with gaps and inconsistencies about his use of GPS, the geographic location of the GDM 18 stakes, and his 2009 mining activity. Looking to the record, the superior court properly resolved a factual dispute about how far downstream the GDM 18 posts were placed. Its decision to discredit Del's testimony was reasonable and not clearly erroneous. Gold Dust's arguments challenging this credibility determination are misguided. Gold Dust first argues that "there was no dispute on where [Del's] stakes were." But the portion of the transcript cited supports only the more limited proposition that Little Squaw did not dispute that GDM 16 and GDM 18 shared corner posts. As the cited portion of the transeript shows, Little Squaw did indeed dispute "where [the corner posts] are on the creek." And despite its argument that there is no dispute over the location of the corner posts, Gold Dust admits that Little Squaw's expert "located [Del's] GDM #18 further downstream than where [Del] put his corner." Not only was Del's testimony about how he staked GDM 18 in relation to GDM 16, how he used the stakes of other claims and GPS technology to locate his GDM 18 stakes, and the dimensions of his claims insufficient to directly answer this factual question, but the superior court was under no obligation to eredit his testimony. Gold Dust also argues that inconsistencies in Del's testimony might have resulted from "good faith confusion." But of course that does not obligate the superior court to credit the testimony. In making credibility determinations, the superior court is not limited to identifying deliberate misrepresentations. The superior court may refuse to credit testimony based on inaceura-cies in a witness's ability to perceive or recall events. It was within the superior court's discretion in this case to determine whether-and on what grounds-to disbelieve Del's testimony. Finally, Gold Dust seems to argue that not every false statement is a lie and that any false statements made by Del were not "lies." It cites sample pattern jury instructions for the proposition that honest people may "forget or remember things incorrectly" and that "inconsistencies and contradictions in a witness' testimony . do not necessarily mean that you should disbelieve the witness." But this argument does not justify reversing the superior court's credibility determination in this case. The superior court may overlook inconsistencies and contradictions in testimony where the weight of the evidence counsels the court to do so. And the superior court may focus on inconsistencies in testimony when the weight of the evidence so counsels. The superior court did the latter in this case, and Gold Dust offers no justification adequate to reverse this credibility determination. Because the superior court found no credible evidence that the GDM 18 stakes were placed outside their recorded location, the contention that Del mined GDM 18 fails. L. The Superior Court's Finding That Del Knew He Was On Little Squaw's Claim In 2009 Was Not Clearly Erroneous. Gold Dust denies that Del stopped his summer 2009 mining activity because he knew he was on Little Squaw's claims and challenges the superior court's finding to that effect, It offers other reasons that Del stopped mining in 2009:(1) because he believed his mining permit had been invalidated, and (2) in order to retrieve equipment he had stored on another claim, Number Five Below Discovery. Little Squaw defends the superior court's finding, noting that Del stopped mining claims after receiving an order ejecting him from Little Squaw's claims. Little Squaw argues that the order did not eject him from his own claims and if he had been mining his own claims, he would not have had to stop. We will not overturn a factual finding unless that finding is clearly erroneous. The record in this case does not compel us to reverse the superior court's finding. Del testified that he halted his 2009 mining activity and began moving his equipment when he received an order stating that Gold Dust was ejected from Little Squaw's mining claims. This testimony is sufficient to support the superior court's finding that Del knew that he was on Little Squaw's land. We find no error. M. The Entry Of Judgment Against Gail Ackels For Reclamation Costs Caused By The 2009 Mining Activity Was In Error. Gold Dust argues that Gail Ackels should not be liable for damages arising from the 2009 mining work, which the superior court concluded took place on Little Squaw's claims GRMC 14 and 15. It argues that even if Del is liable in damages for trespassing on Little Squaw's claims in 2009, Gail should be shielded from liability because her status as Del's wife and her status as a shareholder of Gold Dust Mines, Inc. are insufficient to support liability. Little Squaw contends that Gail physically participated in the 2009 mining activity on GRMC 14 and 15 and can be held liable for any damages arising from that activity. It points to evidence suggesting that Gail was on the mining claims in 2009 and shared Del's financial interest in the development of the mining claims. In a civil case where multiple defendants are held liable, AS 09.17.080 instructs the fact-finder to make findings explaining "the percentage of the total fault that is allocated to each . defendant." This statute further instructs the court to "enter judgment against each party liable on the basis of several liability in accordance with that party's percentage of fault." Under this general rule, a defendant's liability is limited to its share of the comparative fault. Because the superior court did not make the findings required by AS 09.17.080, we reverse the judgment against Gail and remand for consideration of such findings. Because the superior court did not enter comparative fault findings in accordance with AS 09.17.080, the superior court's decision to enter judgment against Gail may have been based on its ruling that Little Squaw was entitled to pieree Gold Dust's corporate veil. Shareholders of a corporation may be liable for corporate debts if the shareholders control the corporation and abuse the corporate structure to prejudice an opposing party. "[The corporate veil may be pierced when a corporation is nothing more than a 'mere instrument' of a shareholder." We have identified six primary factors to consider in imposing personal liability on the shareholder. In applying the mere instrumentality test, we ask whether (a) the shareholder sought to be charged owns all or most of the stock of the corporation; (b) the shareholder has subscribed to all of the capital stock of the corporation or otherwise caused its incorporation; (c) the corporation has grossly inadequate capital; (d) the shareholder uses the property of the corporation as his own; (e) the directors or executives of the corporation act independently in the interest of the corporation or simply take their orders from the shareholder in the latter's interest; and (£) the formal legal requirements of the corporation are observed.[ ] "[These] factors help the fact-finder to decide whether the evidence favors piercing the veil. 4 It is not necessary for all six factors to be satisfied before imposing personal liability. "[TJhe primary consideration in determining whether to 'pierce the corporate veil' is whether the corporate form has been abused by the person sought to be charged." The court's ruling authorized Little Squaw to seek judgment against Gold Dust's officers and sole shareholders, Del and Gail Ackels. But the superior court did not analyze the veil-piercing factors on the record when it authorized Little Squaw to pierce the corporate veil. Nor did the superior court explain its decision to pierce the corporate veil in its written findings and conclusions. Because specific findings under the mere instrumentality test are needed to pierce the corporate veil, we reverse the award of reclamation costs against Gail and remand for specific findings. N. Holding Gail Ackels Jointly Liable For The Attorney's Fees Award Was Error. Gold Dust also challenges the superior court's decision to hold Gail Ackels jointly liable for the attorney's fees award in this case. It argues that Gail was not a party to the lease nor a guarantor on the lease and that her role as a shareholder of Gold Dust Mines does not justify holding her liable for the corporation's debts. Little Squaw defends the superior court's attorney's fees award. This question implicates the veil-piercing doctrine discussed in Part IV.M. Because the superior court did not enter specific findings to justify its veil-piercing decision and did not apportion liability among the defendants, we reverse the award against Gail. We remand this issue for further consideration and entry of findings by the superior court. O. The Superior Court Did Not Err In Awarding Enhanced Attorney's Fees To Little Squaw. Gold Dust challenges the superior court's decision to award enhanced attorney's fees to Little Squaw. It denies that Del engaged in unreasonable or bad faith conduct and argues that these aggravating factors do not justify the enhanced award in this case. Little Squaw contends that the enhanced fee award was proper based on the complexity of the case, length of the trial, and the "unreasonable claims and vexatious, even bad faith, conduct by the Ackels[es]." Alaska Civil Rule 82 authorizes the superior court to award attorney's fees to the prevailing party in a civil case. The rule sets out a number of factors the court may consider in fashioning a fee award. In this case, the superior court concluded that because Little Squaw secured title to the disputed mining claims, it was the prevailing party on the main issues in the litigation. The court awarded Little Squaw enhanced attorney's fees in light of the complexity and length of the case, which was "made more complex by delays in discovery" by Gold Dust and Del's inconsistent testimony on key issues concerning the interpretation of the lease. According to the superior court, "[alnother example of the unreasonableness of the claim, even bordering on bad faith, was [Del's] argument that because the affidavit of annual work he had filed on [Little Squaw]'s behalf was in fact defective, causing their claims to be void, that he was able to re-file in his own name." The superior court concluded that Little Squaw "incurred significantly higher attorney's fees than it should have if [the Ackelses] had pressed legitimate claims, founded on actual facts, [rather] than pursuing litigation with shifting facts and unreasonable arguments." The superior court's decision to award enhanced attorney's fees on the basis of these findings was not manifestly unreasonable. We find no error. v. CONCLUSION For the reasons described above, we AP-FIRM the superior court's decision to award Little Squaw title to the disputed mining claims and its resolution of the other issues raised at trial. Because specific findings are needed to pierce the corporate veil, we REVERSE the superior court's decisions to enter judgment and award attorney's fees against Gail Ackels and REMAND for further proceedings consistent with this opinion. CHRISTEN, Justice, not participating. . Moore v. State, Dep't of Natural Res., 992 P.2d 576, 578 (Alaska 1999) (citing AS 38.05.195; AS 38.05.210-211; and 11 Alaska Administrative Code (AAC) 86.200-221); see also 11 AAC 86.105 and .200. . AS 38.05.255. . AS 38.05.245(b). . AS 38.05.195(b)(1)-(2) (authorizing claim-location by reference to meridian, township, range, and section); see also 11 AAC 86.202 (defining traditional mining claims and MTRSC (meridian/township/range/section) claims by reference to AS 38.05.195(b)(1) and (2)). . AS 38.05.195(b)(2) ("[Tlhe boundaries of a claim . shall run in the four cardinal directions unless the claim is a fractional claim or the commissioner determines that staking in compliance with this paragraph is impractical...."}. . See AS 38.05.195(b) (recognizing claims recorded under MTRSC system and non-MTRSC claims). . Minutes, Sen. Res. Comm. Hearing on S.B. 175, 21st Leg., 2d Sess. (Feb. 21, 2000) (testimony of Steve Borrell, Alaska Miners Assoc. Exec. Dir.). . AS 38.05.195(b)(1) provides that, in the event of a conflict over boundaries for the quarter section or quarter-quarter section, "the corners marked on the ground of a claim established in accordance with this paragraph and regulations of the commissioner control." . AS 38.05.211. . AS 38.05.210. . 11 AAC 86.220(c). . AS 38.05.210(a). . 11 AAC 96.010. Cf. 11 AAC 86.150 (authorizing use of mining plan of operations instead of permit in some cases). . AS 38.05.265(a); see also AU Intern., Inc. v. State, Dep't of Natural Res., 971 P.2d 1034, 1038 (Alaska 1999) ("[FJailure to record a statement of annual labor constitutes abandonment, without regard to intent."). . See AS 38.05.265(b); see also 11 AAC 86.125 (substantial rather than strict compliance authorized by Commissioner on a case-by-case basis). . During the course of this litigation, Little Squaw Gold Mining Company changed its name to Goldrich Mining Company. To avoid confusion, we follow the parties' practice of referring to this company as Little Squaw, the name under which it had been operating when it filed this action. . Some evidence suggests that Anderson, who was unable to testify in 2008 because of dementia, may have lost track of details of Little Squaw's business several years before this case went to trial while some evidence suggests that Little Squaw may have deliberately abandoned the claims. . These claims included: GDM 1 (ADL 641352), GDM 2 (ADL 641353), GDM 3 (ADL 641354), GDM 4 (ADL 641355), GDM 5 (ADL 641356), GDM 6 (ADL 641357), GDM 7 (ADL 641358), GDM 8 (ADL 641359), GDM 9 (ADL 641360), GDM 10 (ADL 641361), GDM 11 (ADL 641362), GDM 12 (ADL 641363), GDM 13 (ADL 641364), GDM 14 (ADL 641365), GDM 15 (ADL 641366), GDM 16 (ADL 641367), and GDM 17 (ADL 641368), LSO 1, LSO 2 (ADL 641349), LSO 3 (ADL 641350), LSO 4 (ADL 641351). . A Department of Natural Resources employee had informed Little Squaw's counsel that the Department would revoke Del's permit to mine if he were held in contempt for trespassing on Little Squaw's claims. . In this case, none of the jury's factual findings as set out in the special verdict were challenged by Gold Dust. . McCormick v. City of Dillingham, 16 P.3d 735, 738 (Alaska 2001). . Miscovich v. Tryck, 875 P.2d 1293, 1297 (Alaska 1994) (citing Guin v. Ha, 591 P.2d 1281, 1284, n. 6 (Alaska 1979). . Joseph v. Jones, 639 P.2d 1014, 1019 (Alaska 1982). . Welcome v. Jennings, 780 P.2d 1039, 1043 (Alaska 1989). . They concern the duration and terms of the mining lease, the interpretation of state mining statutes, the effect of Department of Natural Resources' adjudications, the equitable doctrines of estoppel and constructive trust, the applicable statute of limitations, whether the superior court's reversal of its own grant of partial summary judgment was proper, whether certain issues were tried by consent, whether the enhanced attorney's fees award was justified, and whether entry of judgment against an officer shareholder was proper. . 875 P.2d 1293 (Alaska 1994). . Id. at 1299-1300 (quieting title to disputed mining claims). . Id. (citing 20 American Law or Minimo, § 38.03[4] ). . 981 P.2d 1065 (Alaska 1999). . 197 P.3d 199 (Alaska 2008). . Id. at 206. (quoting Mogg v. Nat'l Bank of Alaska, 846 P.2d 806, 810 (Alaska 1993)). . Id. . West, 981 P.2d at 1067 (internal quotation marks and citation omitted). . Adams v. State, 261 P.3d 758, 764 (Alaska 2011) (quoting Raphael v. State, 994 P.2d 1004, 1015 (Alaska 2000)). . Aviation Assocs., Ltd. v. TEMSCO Helicopters, Inc., 881 P.2d 1127, 1131, n. 7 (Alaska 1994) (defining plain error as a circumstance where the "jury instruction obviously creates high likelihood that the jury will follow erroneous theory resulting in miscarriage of justice") (internal quotation marks omitted). . Brown v. Music, Inc., 359 P.2d 295, 297 (Alaska 1961). . Id. . Id. . Id. . See 11 U.S.C. § 524(a) (2006) ("A discharge in a case under this title . voids any judgment at any time obtained, to the extent that such judgment is a determination of the personal liability of the debtor with respect to any debt discharged. ."). . See, eg., In re Blatstein, 192 F.3d 88, 100-01 (3d Cir.1999) (rejecting argument to reverse judgment piercing corporate veil under Pennsylvania corporate law because company co-owned by Chapter 7 bankruptcy debtor was a distinct legal entity from, and alter ego of, the debtor). . Marine Solution Servs., Inc. v. Horton, 70 P.3d 393, 401 (Alaska 2003) ("It is well-established that the corporate entity is distinct although all or a majority of its stock is owned by a single individual or corporation, or although the corporation is a so-called 'family' or 'close' corporation.") (internal citations omitted). . Riddell v. Edwards, 76 P.3d 847, 852 (Alaska 2003) (quoting McKnight v. Rice, Hoppner, Brown, & Brunner, 678 P.2d 1330, 1335 (Alaska 1984)). We further explained that "a constructive trust presupposes a transfer or holding of property in which the equitable beneficiary has a legal interest and unconscionable conduct by the property's holder in connection with its acquisition." Id. . McKnight, 678 P.2d at 1335. . Miscovich v. Tryck, 875 P.2d 1293, 1299 (Alaska 1994). . Id. (citing 2 American Law or Mng, § 38.03[4]). . Merl F. Thomas Sons, Inc. v. State, 396 P.2d 76, 79 (Alaska 1964). . Id. at 78 ("[Where parties enter into a contract on the assumption that some particular thing essential to its performance will continue to exist and be available for the purpose and neither agrees to be responsible for its continued existence and availability, the contract must be regarded as subject to an implied condition that if, without the fault of either party, the particular thing ceases to exist or be available for the purpose, the contract shall be dissolved and the parties excused from performing it.") (quoting Parrish v. Stratton Cripple Creek Mining & Dev. Co., 116 F.2d 207, 209-10 (10th Cir.1940), cert. denied, 312 U.S. 698, 61 S.Ct. 738, 85 L.Ed. 1132 (1941)). . Parrish, 116 F.2d at 209-10 (emphasis added). . McDowell v. State, 957 P.2d 965, 968 (Alaska 1998) (applying six-year statute of limitations for trespass rather than two-year statute of limitations for torts). . Id. . AS 09.10.053. . AS 09.10.030. This provision also suggests that there may be no statute of limitations for actions to quiet title. AS 09.10.030 ("An action may be brought at any time . in order to (1) quiet title to [] real property; (2) eject a person from that real property."). Little Squaw's claims would not be barred under any of these provisions, and this court does not need to determine which of these provisions applies to Little Squaw's claims. . AS 09.10.050. . AS 38.05.020. . AS 38.05.195-.200; see also Chalovich v. State, Dep't of Natural Res., 104 P.3d 125, 130 (Alaska 2004) (concluding AS 38.05.210 authorizes the Department of Natural Resources to define the labor year for mining claims); Moore v. State, Dep't of Natural Res., 992 P.2d 576, 581 (Alaska 1999) ('Because the commissioner, acting within his authority, was entitled to find that PRI was . not qualified to acquire mining rights under AS 38.05.190(a), his decision voids and nullifies PRI's mining rights."); AU Intern., Inc. v. State, Dep't of Natural Res., 971 P.2d 1034, 1041 (Alaska 1999) (rejecting due process challenge to Department's determination that 1,035 mining claims were abandoned by failure to properly file affidavit of annual labor). . AS 38.05.020(b)(4). . See AS 44.62.330(a) (listing agencies subject to the procedural requirements of AS 44.62.330-.630); AS 38.05.020 (subjecting regulations, but not adjudications, of the Department of Natural Resources to the requirements of the Administrative Procedure Act}. . See, eg., AS 38.05.020(b)(1) (requiring that procedures established by the commissioner be "reasonable [and] . necessary to carry out" the statutory mandate); Moore v. State, 553 P.2d 8, 31 (Alaska 1976) (Rabinowitz, J., concurring) (concluding "our courts can review the performance of administrative tasks by an executive agent to ensure compliance with specific procedural safeguards imposed by the legislature in accordance with Alaska's constitutional mandates"); see also id. at 30 (requiring compliance with separate opinion of Justice Rabinowitz). . The November 11 letter replaced a letter issued by the Department of Natural Resources on October 29, 2009. The conclusions in both letters are the same and much of the language in the letters is identical. The only difference between the letters is that the November 11 letter includes additional information that helps to identify the claims in dispute (ADL numbers, MTRSC locations, document numbers). To avoid confusion, we follow the superior court's practice of referring to this as the "November 11" letter. . Judge Olsen noted that Gold Dust had the right to appeal the DNR decision if it believed it to be erroneous. The record before us shows no such administrative appeal. . We also note that evidence at trial suggested that these three claims (LSO 4, GDM 1, and GDM 2) overlapped with claims that Del mined under Gold Dust Mines' lease with Little Squaw, including Upper Discovery and Number Two Above Discovery. If the claims overlap, the Department's administrative decision with respect to them was correct. . AS 38.05.210. . 11 AAC 86.220(c). . Id. . 581 P.2d 218 (Alaska 1978). . Id. at 221. . Ashbrook, 581 P.2d at 220. . E.g., Bevins v. Ballard, 655 P.2d 757, 761 (Alaska 1982). . Alaska R. Civ. P. 15(b). . Gold Dust frames this as a question of subject matter jurisdiction, arguing that the superior court did not have "jurisdiction" over the surface estate, which belongs to the State of Alaska. This is misguided. 'The superior court is the trial court of general jurisdiction...." AS 22.10.020. Gold Dust does not argue that the superior court is barred from resolving disputes about the surface estate of mining claims. Nor does Gold Dust advance a valid personal jurisdiction argument. Gold Dust suggests that the court should not have issued an order affecting the surface estate because the state, which retains rights to the surface, was not named a party. This argument sounds in personal jurisdiction, but it is unavailing. As Little Squaw points out, the superior court resolved the dispute between Little Squaw, Gold Dust Mines, and Del, over whom the court "undeniably" had personal jurisdiction. . AS 38.05.255. . Id.; see also Parker v. Alaska Power Auth., 913 P.2d 1089, 1091 (Alaska 1996) ("'The State, as the owner of the surface estate, is permitted to convey all or part of its interest to other parties and it has done so in this case. ."). . 658 P.2d 1336 (Alaska 1983). . Id. at 1339. . Id. . Wasserman v. Bartholomew, 38 P.3d 1162, 1167 (Alaska 2002) (citing Whitesides v. State, Dep't of Pub. Safety, Div. of Motor Vehicles, 20 P.3d 1130, 1136 (Alaska 2001)). . AS 38.05.195(b)(1) provides that, in the event of a conflict over boundaries for the quarter section or quarter-quarter section, "the corners marked on the ground of a claim established in accordance with this paragraph and regulations of the commissioner control." Because this issue has not been briefed, we express no opinion on the interpretation of this statute. . Alaska Civil Pattern Jury Instructions, 1.07 Credibility of Witnesses. . See Miscovich v. Tryck, 875 P.2d 1293, 1297 (Alaska 1994); see also Commercial Recycling Ctr., Ltd. v. Hobbs Indus., Inc., 228 P.3d 93, 98 (Alaska 2010). . AS 09.17.080(a)(2). . AS 09.17.080(d). . Petrolane Inc. v. Robles, 154 P.3d 1014, 1020 (Alaska 2007). . See Klondike Indus. Corp. v. Gibson, 741 P.2d 1161, 1171-72 (Alaska 1987) (upholding trial court's decision to pierce corporate veil}. . L.D.G., Inc. v. Brown, 211 P.3d 1110, 1125 (Alaska 2009). . Id. at 1126. . Id. . Nerox Power Sys., Inc. v. M-B Contracting Co., 54 P.3d 791, 802 (Alaska 2002) (affirming conclusion that companies were "mere instrumen-talities" of shareholders where there was evidence of five of the six factors). . Murat v. F/V Shelikof Strait, 793 P.2d 69, 76 (Alaska 1990) ("[The primary consideration in determining whether to 'pierce the corporate veil' is whether the corporate form has been abused by the person sought to be charged."); see also L.D.G., 211 P.3d at 1125 ("[The corporate veil may be pierced when a corporation is nothing more than a 'mere instrument' of a shareholder."). . Murat, 793 P.2d at 76-77. . These factors include: (A) the complexity of the litigation; (B) the length of trial; (C) the reasonableness of the attorneys' hourly rates and the number of hours expended; (D) the reasonableness of the number of attorneys used; (E) the attorneys' efforts to minimize fees; (F) the reasonableness of the claims and defenses pursued by each side; (G) vexatious or bad faith conduct; (H) the relationship between the amount of work performed and the significance of the matters at stake; (I) 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; (J) 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; and (K) other equitable factors deemed relevant. If the court varies an award, the court shall explain the reasons for the variation. Alaska R. Civ. P. 82(b)(3).

10447939

KOS f/k/a BOKS, a partnership and Secured Creditor of Sourdough Freight Lines, Inc., Appellant, v. Travis Dean WILLIAMS d/b/a Deep Ditch Pilot Car Service, Appellee

KOS v. Williams

1980-09-19

No. 4500

868

870

616 P.2d 868

616

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:03:12.061547+00:00

CAP

Before RABINOWITZ, C. J., CONNOR, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.

KOS f/k/a BOKS, a partnership and Secured Creditor of Sourdough Freight Lines, Inc., Appellant, v. Travis Dean WILLIAMS d/b/a Deep Ditch Pilot Car Service, Appellee.

KOS f/k/a BOKS, a partnership and Secured Creditor of Sourdough Freight Lines, Inc., Appellant, v. Travis Dean WILLIAMS d/b/a Deep Ditch Pilot Car Service, Appellee. No. 4500. Supreme Court of Alaska. Sept. 19, 1980. Joseph W. Sheehan, Fairbanks, for appellant. Franklin D. Fleeks, Fairbanks, for appel-lee. Before RABINOWITZ, C. J., CONNOR, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.

1193

7124

MATTHEWS, Justice. Travis Dean Williams d/b/a Deep Ditch Pilot Car Service (Williams) obtained prejudgment attachment of certain accounts receivable of Sourdough Freight Lines, Inc. (Sourdough) under Alaska Rule of Civil Procedure 89. KOS, a partnership, was allowed to intervene pursuant to Alaska Rule of Civil Procedure 24 and asserted a priority claim to the attached funds as a secured creditor of Sourdough. KOS then moved for an order releasing the funds to itself and for judgment on the issue of its priority over Williams. Williams filed opposition on October 26, 1978, and claimed in part that BOKS, a partnership. consisting of Carl Baltrusch, William Koch, Eddie O'Rear and Donald Spafford, held a security interest in the property in question, rather than the partnership called KOS which consists only of O'Rear and Spafford. Williams thus claimed that KOS was not the real party in interest under Alaska Rule of Civil Procedure 17(a). KOS replied that Koch and Baltrusch had withdrawn from the BOKS partnership, that thereafter the partnership name had simply been changed to KOS and that KOS was the same entity as BOKS. Alternatively, KOS argued that since the action was also being maintained in the name of the BOKS partnership by two of the BOKS partners, all of the BOKS partners would be bound by the adjudication in the name of the partnership. On November 13, 1978, the court entered an order denying KOS' motion for release of funds and judgment and dismissed KOS' claim in intervention, stating: Intervenor KOS is dismissed from this action pursuant to Rule 17(a), a reasonable time having been allowed for Interve-nor to substitute the real party in interest or satisfy the Court that Intervenor is said real party in interest and Intervenor having failed to satisfy the Court as to either requirement. From this judgment of dismissal KOS has appealed. "Our Civil Rules contain provisions which should be used by our courts to ensure that the real contestants in interest are before it, . . . " One such provision is contained in Civil Rule 17(a). That rule provides that no action may be dismissed on the ground that it is not being prosecuted in the name of the real party in interest unless (1)an objection to that effect has been made; (2) a reasonable time for joinder of or ratification by the real party in interest has been allowed; and (3) that time has passed without joinder or ratification having been accomplished. The rule contemplates two orders of the court, separated by a reasonable time. The first order must identify the real party who must ratify the action or join it within the reasonable time given, and the second order may dismiss the action after the reasonable time passes without joinder or ratification. Here the court took the second step, but not the first. The order of the superior court must therefore be reversed. Further, there was no factual showing which would justify the court's refusal to consider KOS the real party in interest. It is true that BOKS was a partnership originally formulated by four individuals. But the record indicates that over the course of three years, the partnership was reduced to two individuals-Donald Spaf-ford and Eddie O'Rear-the current partners of KOS. The interests of the other two partners had been disposed of by way of settlements in civil litigation and private negotiations. After these interests were disposed of, BOKS changed its name to KOS, but remained the same entity. Williams did not file affidavits or cite evidence which might be admissible at trial to refute these assertions. On this record, therefore, the court would not be justified in concluding that KOS is not the real party in interest. KOS also argues that its security interest was entitled to priority over Williams' claim of interest and prejudgment attachment. This issue has not been litigated below and, in view of the allegations of fraud made by Williams, this is a matter to be determined by the superior court upon remand. REVERSED and REMANDED for further proceedings consistent with this opinion. BOOCHEVER, J., not participating. . Alaska R.Civ.P. 17(a) provides: Real Party in Interest. Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought; and when a statute of the state so provides, an action for the use or benefit of another shall be brought in the name of the state. No action shall be dismissed on the ground that it is not prosecuted in the name of real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest. . First National Bank of Anchorage v. Zawodny, 602 P.2d 1254 & n.2 (Alaska 1979), suggesting the use of Alaska R.Civ.P. 19 (Joinder of Persons Needed for Just Adjudication) and Alaska R.Civ.P. 21 (Parties may be added by the court on its own initiative). . The objection is ordinarily raised by the defendant in objecting to the status of the plaintiff. However, it may also be raised by the defendant in objecting to its own status, by the plaintiff in objecting to the defendant's status on a counterclaim, by either or both the plaintiff and defendant in objecting to the intervention of another party. The better authority is that the trial judge can raise the objection on his own motion. 3A Moore's Federal Practice, ¶ 17.15-1 at 17-187 (2d ed. 1979) (footnotes omitted). . See, e. g, American Optical Co. v. Curtiss, 56 F.R.D. 26, 32 (S.D.N.Y. 1971), allowing a ten-day period and naming the party to be joined or substituted before the action would be dismissed. . For a discussion of "real party in interest" in the context of Civil Rule 17(a), see 3A Moore's Federal Practice ¶ 17.01 et seq. (2d ed. 1979), interpreting the analogous federal rule. . We have examined KOS' argument that the superior court erred in not foreclosing on Williams' bond. The imposition of sanctions is a matter to be left to the discretion of the trial court. Cf. Hart v. Wolff, 489 P.2d 114, 118 (Alaska 1971) (discussing Civil Rule 37 sanctions against a party who has failed to permit discovery). The trial judge did not abuse his discretion by imposing a $100 daily sanction rather than ordering an execution against Williams' bond.

10407033

GOLDEN VALLEY ELECTRIC ASSOCIATION, INC., an Alaska electric cooperative corporation, Appellant, v. Leon REVEL, Appellee

Golden Valley Electric Ass'n v. Revel

1986-05-23

No. S-1011

263

265

719 P.2d 263

719

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:12:34.794617+00:00

CAP

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

GOLDEN VALLEY ELECTRIC ASSOCIATION, INC., an Alaska electric cooperative corporation, Appellant, v. Leon REVEL, Appellee.

GOLDEN VALLEY ELECTRIC ASSOCIATION, INC., an Alaska electric cooperative corporation, Appellant, v. Leon REVEL, Appellee. No. S-1011. Supreme Court of Alaska. May 23, 1986. Constance A. Cates, David H. Call, Call, Barrett & Burbank, Fairbanks, for appellant. Dick L. Madson, Law Offices of Dick L. Madson, Fairbanks, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

842

5254

OPINION PER CURIAM. Leon Revel took Golden Valley Electric Association's (GVEA) utility service without authorization. GVEA instituted this civil suit for damages under AS 42.20.-030(a), alleging it is entitled to recover three times its costs to investigate and discover Revel's theft, or $11,250. Superi- or Court Judge Gerald J. Van Hoomissen granted judgment on the pleadings for Revel. GVEA appeals. We affirm. MEASURE OF DAMAGES UNDER AS 42.20.030(a) GVEA argues that Revel is civilly liable for its costs of investigating his theft of utility service. Revel contends that GVEA may only recover actual damages, not all costs that are quantifiable. The trial court believed investigative costs should be recoverable, but granted judgment for Revel to promote consistency in civil and criminal damage assessments under AS 42.20.030(a) and AS 12.55.100(a), respectively. AS 42.20.030(a) creates civil liability for treble damages when a person intentionally damages a utility's property or takes its service without its permission. The question raised by this case is whether a utility's cost of discovering the theft of utility services is within the scope of AS 42.20.-030(a). Subparagraphs (1M7) permit recovery of damages arising from physical damage to or interference with a utility's property or equipment. We interpret the term "actual damages sustained" to refer to physical damage to the property. Sub-paragraph (8) authorizes recovery for three times the value of utility service taken. We conclude that the legislature did not intend to allow recovery of three times the cost of apprehending a person who takes service from a utility. GVEA's reliance on our decision in Curt's Trucking Co. v. City of Anchorage, 578 P.2d 975 (Alaska 1978), is misplaced. In that case we addressed the scope of indirect damages recoverable when an overhead utility line is damaged by a dump truck. We ruled that routine administrative overhead costs relating to the utility's repair of physical damages sustained are recoverable if they are a fair and reasonable allocation of actual repair costs, even though the costs are indirect. Id. at 979. However, overhead costs pertaining to risk management or claims processing are not recoverable because they are similar to expenses incurred in preparing for litigation, and thus do not represent indirect costs of repair. Id. at 981. GYEA's investigative costs here are not routine administrative overhead related to valuing service taken without permission; instead, they relate to the discovery of an unauthorized taking of utility service. Investigative costs are more like risk management overhead in that they do not represent an indirect cost of valuing service. Therefore, our decision in Curt's Trucking does not support GVEA's position. We conclude that AS 42.20.030(a), read as a whole, is intended to.limit a utility's recovery to actual damages arising from physical injury to its equipment and for the value of utility service taken. Because GVEA seeks recovery of investigative costs which are unrelated to valuation of utility service taken, we affirm the judgment on the pleadings for Revel. . AFFIRMED. . Revel was convicted of second degree theft, AS 11.46.130(a)(1), for the unauthorized taking of GVEA's power. As a condition of probation, the trial court ordered Revel to pay $21,221.08 restitution under AS 12.55.100(a). Revel appealed, and the court of appeals reduced the criminal restitution award by $3,750, representing GVEA's investigative costs. Revel v. State, MO & J No. 613 (Alaska App., June 13, 1984). . AS 42.20.030(a) provides: (a) A person is civilly liable to the utility whose property is damaged in a sum equal to three times the amount of the actual damages sustained and three times the value of the service taken if the person intentionally or in the exercise of gross negligence (1) damages a pole, tree, pipeline, or other object used in a utility line; (2) damages an insulator in use in the line or damages or removes from its insulator any wire used in a utility line; (3) damages the insulation of the line or interrupts the transmission of the service through it or damages the protective wrapping of a water, oil, or gas pipeline; (4) damages property or materials belonging to a utility; (5) interferes with the use of a utility line, or obstructs or postpones the transmission of service over a utility line; (6) procures or advises damage to any utility line; (7) interferes with or alters a meter or other device for the measuring of service from a utility; or (8) without the permission of the utility takes service from the utility or taps a wire or line used for the transmission of service or procures or advises this to be done. (Emphasis added). . Oúr disposition of this issue makes it unnecessary to consider the other arguments briefed on appeal.

8317749

LEXINGTON MARKETING GROUP, INC., Appellant, v. GOLDBELT EAGLE, LLC, Appellee

Lexington Marketing Group, Inc. v. Goldbelt Eagle, LLC

2007-05-04

No. S-12171

470

478

157 P.3d 470

157

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T19:25:28.497077+00:00

CAP

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

LEXINGTON MARKETING GROUP, INC., Appellant, v. GOLDBELT EAGLE, LLC, Appellee.

LEXINGTON MARKETING GROUP, INC., Appellant, v. GOLDBELT EAGLE, LLC, Appellee. No. S-12171. Supreme Court of Alaska. May 4, 2007. William F. Cummings and Douglas K. Mertz, Juneau, for Appellant. Eric A. Kueffner, Faulkner Banfield, P.C., Juneau, for Appellee. Before: FABE, Chief Justice, MATTHEWS, BRYNER, and CARPENETI, Justices.

5143

33143

OPINION FABE, Chief Justice. I. INTRODUCTION Goldbelt Corporation is a majority shareholder of both Goldbelt Eagle, LLC and CP Leasing, Inc. Goldbelt Eagle entered into a contract for marketing services with Lexington Marketing Group (Lexington), a Virginia corporation wholly owned by Lisbeth Gnug-noli. The agreement contained an arbitration clause. In May 2005 Lexington filed a complaint in superior court, requesting that the court compel arbitration of a dispute over whether Goldbelt Eagle owed it compensation for a referral under the marketing contract. The superior court granted summary judgment to Goldbelt Eagle, ruling that Lexington's agreement with Goldbelt Eagle became unenforceable on public policy grounds when Gnugnoli became an employee of CP Leasing. Lexington appeals, claiming the superior court erred under federal and state law when it adjudicated the validity of the underlying contract. We conclude that federal and state arbitration law prohibit courts from adjudicating the validity of the underlying contract when determining arbitrability. We hold that the arbitration agreement covers Lexington's claim, and we reverse the decision of the superior court. II. FACTS AND PROCEEDINGS Goldbelt is a corporation formed pursuant to the Alaska Native Claims Settlement Act. Goldbelt is a majority shareholder in several business entities, including Goldbelt Eagle, LLC and CP Leasing, Inc. Goldbelt Eagle and CP Leasing are eligible to receive preferences in government contracts under the United States Small Business Administration's Section 8(a) program, which is designed to "assist eligible small disadvantaged business concerns [to] compete in the American economy through business development." In August 2001 Lisbeth Gnugnoli incorporated Lexington Marketing Group, Inc. (Lexington), a Virginia corporation licensed to do business in Alaska and wholly owned by Gnugnoli. Lexington provides marketing services to assist corporations in obtaining government contracts. On August 27, 2001, Lexington entered into an agreement with CP Leasing to provide marketing services related to Section 8(a) contracts. Goldbelt formed Goldbelt Eagle in December 2001 as a vehicle for Section 8(a) contracts. In October 2002 Goldbelt Eagle entered into an agreement with Lexington for marketing services. The agreement provided that Goldbelt Eagle would pay Lexington a commission of twenty percent of gross profits from business opportunities registered by Lexington. In October 2008 Gary Droubay, the Chief Operating Officer of Goldbelt, Inc., offered Gnugnoli employment with CP Leasing. Her job was to identify opportunities for CP Leasing to obtain Section 8(a) contracts. The parties agreed that when Gnugnoli became an employee of CP Leasing, she would no longer be paid commissions on the Lexington contract with CP Leasing. The parties dispute whether this agreement also terminated Lexington's contract with Goldbelt Eagle. In the spring of 2004 Cnugnoli learned of a contract opportunity to provide training for Army personnel. She met with representatives of a Virginia corporation willing and able to subcontract the work for a Section 8(a) entity such as Goldbelt Eagle or CP Leasing. Gnugnoli referred the opportunity to Goldbelt Eagle. In an evidentiary hearing before the superior court, Gnugnoli claimed she referred the opportunity to Goldbelt Eagle because the contract called for personnel services, which she claimed CP Leasing was not equipped to provide. Gnugnoli then requested a commission for the referral. Gold-belt Eagle refused payment on the ground that the agreement between Goldbelt Eagle and Lexington was void as of October 2008, when Gnugnoli became an employee of CP Leasing. In May 2005 Lexington filed a complaint in superior court, requesting that the court compel arbitration under AS 09.48.020. Lexington invoked an arbitration clause in its agreement with Goldbelt Eagle. That clause provides: "All disputes or claims arising under this Agreement shall be submitted to binding arbitration before a single arbitrator in Juneau, Alaska if demand for arbitration is made in a notice given by either party." Goldbelt Eagle filed a motion for summary judgment on July 6, 2005, arguing that the entire agreement-including the arbitration provision-became void when Gnugnoli became an employee of CP Leasing. On July 21, 2005, Lexington filed a cross-motion for summary judgment, claiming genuine issues of material fact should prevent Goldbelt Eagle from prevailing and requesting that the court refer the matter to an arbitrator. The superior court initially found that "there was an apparent factual dispute as to whether the parties agreed to terminate the Lexington Agreement between Gnugnoli and Goldbelt Eagle, which in turn contains the arbitration agreement, when Ms. Gnugnoli accepted employment with CP Leasing." The court held an evidentiary hearing on October 24, 2005. On November 8, 2005, the superior court granted Goldbelt Eagle's motion for summary judgment. The court found that Goldbelt Eagle's agreement with Lexington was unenforceable on public policy grounds. It reasoned that Gnugnoli "could not ethically seek opportunities for Goldbelt Eagle and be privately remunerated pursuant to the Lexington Agreement without in turn violating her duty of loyalty to CP Leasing since both 8(a) firms are capable of bidding on the same projects." The superior court concluded that the agreement became impossible to perform without violation of fiduciary duty following Gnugoli's employment with CP Leasing and ruled that there was no duty to arbitrate claims related to an unenforceable agreement. Lexington filed this appeal of the superior court's ruling. Lexington claims that the trial court violated federal and state law by refusing to compel arbitration and further contends that the trial court erred in granting summary judgment. III DISCUSSION A. Standard of Review Whether Lexington's claim is arbi-trable is a question of law subject to de novo review. We "adopt the rule of law that is most persuasive in light of precedent, reason, and policy." We "affirm a grant of summary judgment if there are no genuine issues of material fact and if the movant is entitled to judgment as a matter of law. When making this determination, we draw all reasonable inferences in favor of the non-movant." B. The Superior Court Had Jurisdiction To Decide Arbitrability. Lexington first challenges the superior court's jurisdiction to decide the question of arbitrability-in other words, to decide whether the terms of the agreement called for the dispute to be referred to an arbitrator. It argues that in the absence of allegations of fraud or unconscionability with respect to the arbitration agreement itself, only the arbitrator can determine arbitrabili ty. Goldbelt Eagle responds that the court properly decided arbitrability. Because federal and state arbitration law provide courts with jurisdiction to decide arbitrability, we agree with Goldbelt Eagle that the superior court had jurisdiction to decide arbitrability. A dispute is arbitrable under federal law if the agreement "creates a duty for the parties to arbitrate the particular" dispute. The United States Supreme Court has repeatedly held that courts are the proper forum to decide arbitrability unless the parties' agreement explicitly provides that the issue of arbitrability is for the arbitrator. In AT & T Technologies, Inc. v. Communications Workers of America, the Court held that "the question of arbitrability . is undeniably an issue for judicial determination [uJnless the parties clearly and unmistakably provide otherwise." Alaska state law mirrors federal law and provides that courts are the proper forum to determine whether a dispute is arbitrable. In State of Alaska v. Public Safety Employees Ass'n, we adopted the federal rule that "arbitrability is a question for the courts '[uJnless the parties clearly and unmistakably provide otherwise."" Because the arbitration clause in the agreement between Lexington and Goldbelt Eagle is silent on the proper forum to decide arbitrability, it does not "clearly and unmistakably" rebut the presumption that the courts decide whether a dispute is arbitrable under the terms of the agreement. The superior court thus correctly determined that it had jurisdiction to decide whether the dispute should be referred to an arbitrator. C. The Superior Court Erred When It Adjudicated the Validity of the Underlying Contract. After determining that it had jurisdiction to decide arbitrability, the superior court ruled that the marketing agreement became impossible to perform when Gnugno-li began employment with CP Leasing because performance would require Gnugnoli to breach a fiduciary duty to CP Leasing. Reasoning that an agreement to breach a fiduciary duty would be unenforceable on public policy grounds, the court concluded that it would be improper to enforce the arbitration clause of an unenforceable agreement and granted summary judgment to Goldbelt Eagle. Lexington argues that the superior court erred when it addressed the validity of the underlying contract. Because federal and state arbitration law do not allow courts deciding arbitrability to adjudicate the validity of the underlying contract, we agree. 1. Federal law does not permit a court deciding arbitrability to adjudicate the enforceability of the underlying contract. The United States Supreme Court has emphasized that the Federal Arbitration Act (FAA) reflects "a liberal federal policy favoring arbitration agreements" and has directed that "any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration." This policy favoring arbi tration, coupled with the statutory language, has led the United States Supreme Court to interpret the FAA to forbid courts determining arbitrability from adjudicating the validity of the underlying contract. In Prima Paint Corp. v. Conklin Manufacturing Co., Prima Paint filed suit in federal district court seeking rescission on fraudulent inducement grounds of a contract under which Flood & Conklin agreed to provide consulting services. Flood & Conklin moved to stay the proceedings pending arbitration on the grounds that the consulting contract contained a valid arbitration clause. The case required the United States Supreme Court to interpret 9 U.S.C. § 2, which states that arbitration provisions "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract, and 9 U.S.C. § 4, which the Court noted requires a court to order arbitration once it is satisfied that "the making of the agreement for arbitration or the failure to comply (with the arbitration agreement) is not in issue." The Court concluded that "in passing upon [an FAA] application for a stay while the parties arbitrate, a federal court may consider only issues relating to the making and performance of the agreement to arbitrate." Because Prima Paint's fraudulent inducement claims related to the entire contract, rather than merely the arbitration clause itself, the Court concluded that the claims should be adjudicated by arbitrators." In Southland Corp. v. Keating, the Supreme Court fortified the Prima Paint holding and clarified that it applies equally to state courts considering arbitrability under the FAA. The Court emphasized: We discern only two limitations on the enforceability of arbitration provisions governed by the Federal Arbitration Act: they must be part of a written contract "evidencing a transaction involving commerce" and such clauses may be revoked upon "grounds as exist at law or in equity for the revocation of any contract. The Court then concluded that the FAA created a substantive rule in both federal and state courts, foreclosing state legislative "attempts to undercut the enforceability of arbitration agreements. The United States Supreme Court recently reaffirmed this rule in Buckeye Check Cashk-ing, Inc. v. Cardegna, a decision issued after the superior court's ruling in the case now before us." In Buckeye, John Cardegna brought a class action in state court against Buckeye Check Cashing, alleging that Buckeye charged usurious interest rates in violation of state laws. In response, Buckeye moved to compel arbitration on the ground that the loan agreements contained an arbitration clause providing that "[alny claim, dispute, or controversy . arising from or relating to this Agreement . or the validity, enforceability, or seope of this Arbitration Provision or the entire Agreement . shall be resolved . by binding arbitration." The Florida Supreme Court upheld a denial of a motion to compel arbitration on the grounds that (1) the underlying contract was illegal, and (2) an arbitration clause in an illegal contract could not be enforced. The United States Supreme Court reversed. The Supreme Court rejected the Florida court's conclusion that enforceability of the arbitration clause could turn on application of state public policy to the underlying contract and held that "a challenge to the validity of the contract as a whole, and not specifically to the arbitration clause, must go to the arbitrator. The Court emphasized that under federal law, the arbitration agreement is to be considered separately from the remainder of the contract in determining ar-bitrability. The Buckeye decision makes it clear that courts may consider challenges of illegality to arbitration agreements but not to the underlying contracts. Goldbelt Eagle attempts to distinguish Buckeye by arguing that the arbitration clause in Buckeye was more exhaustive than the clause at issue in this case. Although Goldbelt Eagle is correct that this arbitration agreement is drafted differently from the clause at issue in Buckeye, the Supreme Court's holding in Buckeye was broad. It was not predicated on a close reading of the agreement at issue in that case; the Court did not parse the language of the agreement, nor did it refer back to the language of the clause after initially quoting it. Instead, the Court relied on several broad principles: (1) "an arbitration provision is severable from the remainder of the contract"; (2) "the issue of the contract's validity is considered by the arbitrator in the first instance"; and (8) "this arbitration law applies in state as well as federal courts" Thus, regardless of whether the arbitration agreement at issue is identical to the agreement before the Court in Buckeye, the Court's holding applies. Buckeye does not change the basic rule that courts determining arbitrability must interpret the agreement and determine whether it governs the dispute at issue. However, where the parties have agreed to submit a dispute to arbitration, federal law does not permit a court to refuse to compel arbitration based on a holding that the entire contract is void for public policy. State arbitration law does not permit a court deciding arbitrability to adjudicate the enforceability of the underlying contract. Lexington also argues that the superior court erred under state law when it declared the underlying contract void. We agree. Based on both the statutory language and the policy behind Alaska's Arbitration Act, we hold that state arbitration law aligns with federal law and does not permit a court determining arbitrability to consider the validity of the underlying agreement. The language of the state statute supports our holding that state arbitration law does not permit adjudication on the merits of the underlying agreement. The text of AS 09.48.010(a), which mirrors FAA § 2, suggests that a court may only resolve public policy challenges when such claims are directed at the arbitration clause itself, Buckeye and Prima Paint have interpreted the analogous federal provision to require a court to enforce the arbitration clause unless a party asserts standard contract defenses, such as fraudulent inducement or void for public policy, against the arbitration clause itself. Alaska Statute 09.48.010(a) provides: [A] provision in a written contract to submit to arbitration a subsequent controversy between the parties is valid, enforceable, and irrevocable, except upon grounds that exist at law or in equity for the revocation of a contract. This provision does not provide that the arbitration agreement is not enforceable if grounds exist for revocation of the contract that underlies the agreement. Instead, it dictates that the agreement is not enforceable if "grounds . exist . for revocation . of a contract." In other words, under AS 09.48.010, a court may properly adjudicate claims that the arbitration clause itself is void, but not claims that the entire contract is void. Alaska Statute 09.48.020 also indicates that courts deciding arbitrability should not adjudicate the enforceability of the underlying contract. Subsection (a) indicates that courts should address arbitration provisions separately from the underlying contract. The statute mirrors FAA § 4 and states that "if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue and if the agreement is found to exist shall order arbitration." " Similarly, under subsection (b) of the statute, "the court may stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate." " Like FAA § 4, this provision provides for the court to decide issues related to the arbitration agreement itself, but does not provide jurisdiction to decide separate issues relating to the validity of the underlying contract. These provisions support the view that arbitration clauses are severable from the entire contract and thus may be properly enforced even when it is claimed that the underlying contract is void. Strong public policy rationales support this position. Like federal law, state law strongly favors arbitrability. We have previously recognized the "strong public policy in favor of arbitration." Given this policy, we have indicated that "we . allow ambiguous contract terms to be construed in favor of arbitrability where such construction is not obviously contrary to the parties' intent." Forbidding courts from examining the merits of a dispute or the validity of the underlying contract furthers the primary benefit of arbitration-expeditious and inexpensive dispute resolution for the parties. This policy would be frustrated if parties could avoid arbitration by challenging the validity of the underlying agreement. Although the superior court noted the state's strong presumption in favor of arbi- trability, it reasoned that it would be illogical to refer the case to an arbitrator simply so that the arbitrator could decide "that he or she lacked the power (or jurisdiction) to arbitrate." However, arbitrability is a matter of contract, and there is no reason to assume that submitting the validity of the underlying contract to the arbitrator is not appropriate where the parties so intended. The superior court relied on our decision in Willis Flooring, Inc. v. Howard S. Lease Construction Co. & Associates. In Willis, we held that an arbitration provision was not unenforceable for lack of mutuality where arbitration was the sole option of one party. Our holding was premised upon the notion that an arbitration clause does not require separate consideration so long as the underlying contract is supported by consideration because the contract and arbitration clause constitute a "unitary, integrated contract, not a series of independent agreements." But this notion is consistent with the Prima Paint and Buckeye rule that courts deciding arbitrability are not to adjudicate the validity of the underlying agreement. As several courts have reasoned, interpreting Prima Paint to require separate consideration for an arbitration clause runs contrary to the strong federal policy in favor of arbitration. Our holding in Willis is therefore consistent with federal law and with our ruling today. Alaska's arbitration law closely follows federal arbitration law, and federal law has clarified that arbitration clauses are severa-ble from the underlying contracts for purposes of challenges to the validity of the underlying agreement. Determinations as to the validity of the underlying contract are a matter for the arbitrator to decide. We therefore hold that state arbitration law, like federal law, did not permit the superior court's finding that the underlying contract was unenforceable. 3. The dispute fell under the terms of the arbitration agreement. Our conclusion that the superior court erred under federal and state arbitration laws when it declared the underlying contract void does not end the matter. Because arbitration is a matter of contract, parties can only be compelled to arbitrate a matter where they have agreed to do so. Thus, we are required to decide whether the arbitration clause covers this dispute. Gold-belt Eagle argues the superior court correctly concluded that the dispute did not arise under the agreement and was therefore not arbitrable under the terms of the arbitration clause. We disagree. Although Goldbelt Eagle is correct that arbitration is a matter of contract and a particular dispute is not arbitrable unless the parties have agreed to arbitrate it, we hold that this dispute falls easily within the terms of the arbitration clause. Although the superior court concluded that the dispute did not arise under the contract, its ruling was predicated on its finding that the contract was void for public policy reasons. The superior court reasoned that "[slince the agreement for marketing services for commission was unenforceable following Gnugnoli's CP Leasing employ, no claims could 'arise' under the agreement thereafter." (Emphasis added.) The court concluded that no disputes could arise under a void contract. As explained above, this conclusion is precluded under both federal and state law, which forbid courts from determining arbitrability based on the validity of the underlying contract. Lexington contends that its claim "arise[s] directly under the contract and fall[s] within the disputes that are subject to the arbitration provisions." Goldbelt Eagle argues that the arbitration clause at issue is narrow and did not extend to the dispute at issue. Gold-belt Eagle suggests that the agreement is narrow because it extends only to all disputes "arising under" and does not include disputes as "to the validity of the agreement" or "related to" or "in connection with the agreement." But Goldbelt Eagle cites no Alaska or federal cases declaring that clauses that require arbitration of "all disputes or claims arising under the agreement" must be narrowly read. And several federal courts have declared that clauses referring to arbitration disputes "arising under" or "arising hereunder" are broad. Moreover, regardless of whether the clause is narrow or broad, as a matter of contract interpretation, the arbitration clause applies to this dispute. Goldbelt Eagle suggests that the superior court properly concluded that the parties are disputing whether the underlying contract was void. It reasons that such a dispute revolves around a collateral matter. But Lexington is seeking payment of a commission for services it contends were provided under the contract. Thus, Lexington's claim for payment arises under the contract: it is seeking payment for services it argues were provided under the terms of the agreement. Arbitration of such a claim falls squarely within the arbitration clause's agreement to submit "[alll disputes or claims arising under this Agreement" to arbitration. (Emphasis added.) In light of our strong policy favoring arbitration and our rule of construction allowing even ambiguous contract terms to be construed in favor of arbitrability, this dispute would be arbitra-ble even if the contract term was ambiguous. Here, the contract term is not ambiguous, and arbitration is consistent with the parties' intent to arbitrate claims "arising under" the agreement. We therefore hold that Lexington's claim falls within the seope of the arbitration clause. Because we hold that the superior court erred in declining to order arbitration based on its finding that the underlying contract was void, we do not address Lexington's argument that the court erred in granting summary judgment because parol evidence was in conflict. IV. CONCLUSION In this case, decided before Buckeye, the superior court declined to refer the case to arbitration based on its finding that the underlying contract was void as a matter of public policy. Under Buckeye, such determinations are for the arbitrator to make. We REVERSE and REMAND for proceedings consistent with this opinion. EASTAUGH, Justice, not participating. . See 13 C.F.R.§ 124.1 (2006). . AS 09.43.020(a) provides: On application of a party showing an agreement described in AS 09.43.010, and the opposing party's refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue and if the agreement is found to exist shall order arbitration. . Ahtna, Inc. v. Ebasco Constructors, Inc., 894 P.2d 657, 660 (Alaska 1995). . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). . Alakayak v. British Columbia Packers, Ltd., 48 P.3d 432, 447 (Alaska 2002) (internal citations omitted). . AT & T Techs., Inc. v. Commc'ns Workers of Am., 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). . Id.; see also Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83, 123 S.Ct. 588, 154 LEd.2d 491 (2002) (''The question whether the parties have submitted a particular dispute to arbitration, i.e., the 'question of arbitrability,' is 'an issue for judicial determination [uJnless the parties clearly and unmistakably provide otherwise.'" (citing AT & T Techs., Inc., 475 U.S. at 649, 106 S.Ct. 1415)); First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995) (holding that "Hf . the parties did not agree to submit the arbitrability question itself to arbitration, then the court should decide that question . independently"). . 798 P.2d 1281, 1285 (Alaska 1990) (quoting AT & T Techs., Inc., 475 U.S. at 649, 106 S.Ct. 1415). . The superior court did not make a finding as to whether the Federal Arbitration Act (FAA) applied to the dispute, but it relied on both federal and state authorities in reaching its conclusions. Because we hold that both federal and state laws require arbitration, we need not resolve the issue of which law binds the parties. . Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). . 388 U.S. 395, 398-99, 87 S.Ct 1801, 18 L.Ed.2d 1270 (1967). . Id. at 399, 87 S.Ct. 1801. . Id. at 400, 87 S.Ct. 1801. . Id. at 403, 87 S.Ct. 1801. . Id. at 404, 87 S.Ct. 1801. . Id. at 406-07, 87 S.Ct. 1801. . 465 U.S. 1, 104 S.Ct. 852, 79 LEd.2d 1 (1984). . Id. at 10-11, 104 S.Ct. 852 (internal citation omitted). . Id. at 16, 104 S.Ct. 852. . 546 U.S. 440, 126 S.Ct. 1204, 163 LEd.2d 1038 (2006). The superior court's decision in this case was dated November 8, 2005. Buckeye was decided on February 21, 2006. . Id. at 1207. . Id. . Id. . Id. at 1209. . Id. at 1210. . Id. at 1209. . Lexington interprets this severability to limit the court's inquiry into only whether there is fraud, duress, or unconscionability in the arbitration clause. But in every case, the court must interpret the arbitration clause to determine whether it extends to the dispute at issue. As part of this determination, the court may only consider fraud allegations relating to the arbitration agreement itself. . Id. at 1209 (extracting general rules from Pri-ma Paint and Southland Corp.) . It is not the case that the appellee is without recourse if the underlying contract is void. Federal law simply dictates that such a determination is for the arbitrator-not the court. The superior court quoted the Wyoming Supreme Court and reasoned that to refer the case to "an arbitrator only to have him 'determine that the contract by which he is vested with this authority is void'" was illogical. See Fox v. Tanner, 101 P.3d 939, 949 (Wyo.2004). But the United States Supreme Court subsequently addressed this question, deciding in Buckeye that the FAA requires such a referral. . 126 S.Ct. at 1209. . 388 U.S. at 404, 87 S.Ct. 1801. . Compare 9 U.S.C.§ 2: A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. (Emphasis added.) . AS 09.43.010(a) (emphasis added); of 9 U.S.C. § 2 (using the similar phrase, "revocation of any contract') (emphasis added). . Compare 9 U.S.C. § 4: The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. (Emphasis added.) . AS 09.43.020(b) (emphasis added). . Univ. of Alaska v. Modern Constr., Inc., 522 P.2d 1132, 1138 (Alaska 1974). . Id.; see also Ahtna, 894 P.2d at 662 n. 7 (" 'An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible to an interpretation that covers the dispute. Doubts should be resolved in favor of coverage.'" (quoting United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 4 LEd.2d 1409 (1960))). . See, eg., Prima Paint Corp., 388 U.S. at 404, 87 S.Ct. 1801 (recognizing "the unmistakably clear congressional purpose that the arbitration procedure, when selected by the parties to a contract, be speedy and not subject to delay and obstruction in the courts"). . During oral argument, Goldbelt Eagle suggested that the superior court's ruling that the contract was void for public policy could be binding on the arbitrator even if we reverse. But because we hold that the superior court did not have jurisdiction to rule on the merits of the underlying contract, the ruling has no preclu-sive effect, and the court's vacated determination is not binding. See 18A Cmartes Aran Waicut & Artaur R. & Epwarp H. Coorer, FEpErAL Practice anp Proceoure § 4432 (2d ed. 2002) (''There is no preclusion as to the matters vacated or reversed.... [I]f the appellate court requires dismissal of the case for want of jurisdiction in the trial court, preclusion cannot be revived by attempting to show that the trial led to an otherwise proper determination on the merits.") (internal citations omitted). . 656 P.2d 1184 (Alaska 1983). . Id. at 1184-85. . Id. atl 1185. . See, eg., Glazer v. Lehman Bros., Inc., 394 F.3d 444, 453-54 (6th Cir.2005); see also Doctor's Assocs., Inc. v. Distajo, 66 F.3d 438, 452-53 (2d Cir.1995). . See, eg., Ahina, 894 P.2d at 662 n. 7 (citing with approval the approach of the United States Supreme Court in arbitration law). . AT & T Techs., 475 U.S. at 648, 106 S.Ct. 1415 ("Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.") (internal citations and quotations omitted). . See, eg., Battaglia v. McKendry, 233 F.3d 720, 723-25 (3rd Cir.2000) (holding that clause providing for arbitration of "any controversy [that] arises hereunder" was sufficiently broad to encompass counterclaim that agreement was void since inception); Gregory v. Electro-Mechanical Corp., 83 F.3d 382 (11th Cir.1996) (holding that clauses providing for arbitration of disputes "arising under" a contract are broad and refusing to distinguish between "arising under" and "arising out of"); Building Materials & Constr. Teamsters Local No. 216 v. Granite Rock Co., 851 F.2d 1190, 1194 (9th Cir.1988) ("By providing that '[alll disputes arising under this agreement' shall be resolved through arbitration, the parties agreed 'to submit all grievances to arbitration, not merely those which the court will deem meritorious.' ") (internal citations and quotations omitted). . Modern Constr., 522 P.2d at 1138.

10372974

STATE of Alaska, Petitioner, v. Dennis MOUSER, Respondent

State v. Mouser

1991-02-15

No. A-3279

330

342

806 P.2d 330

806

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T19:00:14.303637+00:00

CAP

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

STATE of Alaska, Petitioner, v. Dennis MOUSER, Respondent.

STATE of Alaska, Petitioner, v. Dennis MOUSER, Respondent. No. A-3279. Court of Appeals of Alaska. Feb. 15, 1991. David Mannheimer, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Douglas B. Baily, Atty. Gen., Juneau, for petitioner. Rex Lamont Butler, Anchorage, for respondent. Before BRYNER, C.J., COATS, J., and ANDREWS, District Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

6252

38632

OPINION BRYNER, Chief Judge. After being charged with one count of sexual abuse of a minor in the first degree and three counts of sexual abuse of a minor in the second degree, Dennis Mouser moved to dismiss, alleging violations of his rights to due process and speedy trial. Superior Court Judge John Reese granted Mouser's motion and ordered the case dismissed. We granted the state's petition for review of the superior court's order of dismissal and directed the parties to submit briefs on the merits. We now reverse. FACTS The essential facts are undisputed. In May of 1986, the Anchorage Police Department received a report that Dennis Mouser had sexually abused his stepdaughter. Police interviewed the stepdaughter and confirmed the report. They also attempted to interview Mouser but learned that he was out of town. . Mouser returned to Anchorage at the end of summer. An officer interviewed him on October 15, 1986. In the course of the interview, the officer informed Mouser of the allegations that his stepdaughter had made. Mouser said he did not recall any specific act of abuse with his stepdaughter, but he admitted entering her room while naked, acknowledged that he had probably done some of the things she accused him of, and expressed "deep guilt" about his conduct. Mouser was not taken into custody during this interview. In December of 1986 the police referred Mouser's case to the Anchorage District Attorney's office. The district attorney's office, in turn, asked for several follow-up interviews, which were completed in March of 1987. Nothing further happened in the case until September, 1987, when Mouser telephoned the Anchorage Police Department to ask about the status of his case. The officer assigned to the case told Mouser that the district attorney's office had not yet made a decision whether to prosecute. Mouser proceeded to discuss the case with the officer, and, for the first time, he admitted several specific instances of sexual touching with his stepdaughter. After the interview, the investigating officer called the district attorney's office and requested immediate action on the case. As a result, the state filed an information on September 16, 1987, charging Mouser with one count of first-degree sexual abuse of a minor and two counts of second-degree sexual abuse of a minor. On September 28, the court issued a summons for Mouser to appear for arraignment on October 14, 1987. On that date, however, the summons was returned un-served, and the court issued a warrant for Mouser's arrest. The arrest warrant remained unserved until May 25, 1989 — more than nineteen months after its issuance— when Mouser was arrested on an unrelated matter in Whittier, Alaska. Mouser eventually moved to dismiss, arguing that the delay in filing and serving him with charges violated his constitutional rights to due process and speedy trial. In a supporting affidavit, Mouser stated that, during the months immediately following his stepdaughter's report of abuse, he became concerned about the pending investigation and asked about the possibility of obtaining a public defender. He was told, however, that he could not receive a public defender until after he had been arrested and charged. According to Mouser, he then contacted and spoke with the police in an effort to expedite the investigation, so that he would be afforded an opportunity to consult with an attorney. Mouser's affidavit further stated that, when "[njothing seemed to be done after my giving of the first statement," he went to the police and gave another statement. Mouser averred that, "from there, the matter seemed to just drop." Mouser's affidavit went on to relate that, from August of 1987 through May of 1989, Mouser lived and worked openly in Anchorage, primarily at his ex-wife's residence, and that he did nothing to conceal his identity or whereabouts from the police. Mouser claimed that, during this time, no police officer ever contacted him, and he received no notice of the outstanding charges or arrest warrant. In the memorandum of law accompanying his affidavit and motion to dismiss, Mouser generally asserted that the delay between the inception of the investigation and his arrest had caused prejudice to his case: Defendant contends that the excessive amount of time between the act alleged and the accusation will work prejudice on any attempt on his part to defend against such accusation in that it will be a practical impossibility to identify potential witnesses. Further, such delay would render it impossible to expect that any witnesses, if identified, could be expected to remember the circumstances of the days and times in question. Defendant frankly states that he, himself, cannot even be certain of his whereabouts and actions on said dates and at such times after so extended a period of delay. Mouser asserted that the extensive nature of the delay violated his rights under the speedy trial and due process clauses of the United States and Alaska Constitutions. The state opposed Mouser's motion to dismiss, contending that the delay in bringing him to trial violated no constitutional prohibitions. The state argued, first, that Mouser had failed to establish a violation of his due process right to be protected against unreasonable preaccusation delay because the delay in his case was justified and Mouser had advanced only a concluso-ry allegation of prejudice. Second, the state argued that Mouser had not been deprived of his constitutional right to a speedy trial because, in the state's view, that constitutional right did not attach until Mouser was actually arrested. Judge Reese conducted a hearing on Mouser's motion. Mouser presented no evidence at the hearing. The state called two witnesses. Anchorage Police Officer Karen Rhodes described the investigative efforts involved in Mouser's case and explained the period of delay from the initial report of abuse in May of 1986 until the filing of the information against Mouser in September of 1987. Warrant Officer David Daniel also testified, describing the efforts made to serve Mouser with the summons to appear for arraignment during the weeks between the filing of the information and the issuance of the arrest warrant of October 14, 1987, when the summons was returned unserved. The state called no witnesses to justify the ensuing delay in serving Mouser with the arrest warrant. Nor did the state attempt to discredit Mouser's claim that he was openly living and working in Anchorage during the period of almost nineteen months when the arrest warrant was outstanding. At the conclusion of the evidentiary hearing, Judge Reese granted Mouser's motion to dismiss. In declaring his reasons for dismissing the case, the judge focused on the delay of almost twenty months between the filing of charges and Mouser's arrest. Judge Reese noted that the state had failed to present any evidence of due diligence in serving Mouser with the arrest warrant during this period. For this reason, Judge Reese found the period of delay unreasonable. Turning to the issue of prejudice, Judge Reese found that the prospect of lost witnesses and failed memories, coupled with the anxiety that the pending investigation must have caused Mouser, amounted to "a colorable amount of prejudice, real, not de minimus and not theoretical . not enormous but real." Balancing this prejudice against the almost two years of unexplained delay, Judge Reese concluded that the charges against Mouser should be dismissed. Shortly after the hearing, Judge Reese issued a written order further specifying his reasons for dismissing the case: "[Ejxcessive, unexplained delay in giving notice of [the] charge to defendant . violated] his right to speedy trial and due process of law.... The nearly two years delay in serving of the warrant after [Mouser] was charged substantially prejudiced his rights." The state later moved for reconsideration of the dismissal order. In its motion, the state reiterated the arguments that Mouser's right to a speedy trial did not attach until after he was arrested and that his conclusory allegation of lost witnesses and faded memories was inadequate to support dismissal on due process grounds for unreasonable preaccusation delay. The state also submitted an affidavit executed by the prosecutor who was assigned to the case at the trial level. The affidavit described a conversation between counsel and William Hughes of the Alaska State Troopers' Anchorage warrant section. According to the affidavit, Hughes indicated that his review of trooper records established that the troopers had apparently made several efforts to serve the arrest warrant on Mouser but had been unsuccessful. Based on this information, the state argued that Mouser was not readily available during the period when his arrest warrant was outstanding and, indeed, may have been intentionally avoiding service of process. Judge Reese denied the state's motion for reconsideration, finding that, even given the new information, the state had failed to establish due diligence in serving the arrest warrant on Mouser. The state then petitioned this court for review, claiming that Judge Reese erred in dismissing Mouser's charges. We granted the state's petition and directed the parties to submit briefing on the merits. DISCUSSION On review to this court, the state renews its challenge to the superior court's dismissal order. As we have indicated, the court's written order specifies two constitutional violations: a violation of Mouser's right to due process and of his right to a speedy trial. We consider each right separately. A. Due Process The due process clauses of the United States and Alaska Constitutions protect the accused against unreasonable pre-accusation delay. See, e.g., United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971); Wilson v. State, 756 P.2d 307, 310 n. 4 (Alaska App.1988). Because the essence of due process is basic fairness, the chief concern of the rule prohibiting unreasonable preaccusation delay is the impact of the delay on the accused's ability to present a defense, and not on the length of the delay as such: [ T]he prohibition against preindictment delay protects the accused from improper or unreasonable conduct by the government in the bringing of a criminal charge. Although this prohibition can operate to preclude conviction after a relatively short period of delay, it is triggered only if the accused can demonstrate that the delay in filing charges was unreasonable and resulted in actual prejudice. State v. Creekpaum, 732 P.2d 557, 567 (Alaska App.1987) (citations omitted), rev'd on other grounds, 753 P.2d 1139 (Alaska 1988). Thus, to prevail on a claim of unreasonable preaccusation delay, the accused must establish not only "[t]he absence of a valid reason for the delay," but also "the fact of prejudice...." York v. State, 757 P.2d 68, 70 (Alaska App.1988). In considering a motion for unreasonable preaccusation delay, the trial court must "strike a balance weighing the reasonableness of the justification [for the delay] against the degree of prejudice to the defendant...." Alexander v. State, 611 P.2d 469, 475 (Alaska 1980). The burden is on the accused to establish both the absence of a valid reason for delay and actual prejudice: In order to assess a claim of preindictment delay, courts must weigh the governmental interest in postponing accusation against the defendant's interest in early notice of the pending charges. The absence of a valid reason for the delay and the fact of prejudice must be established for the defendant to prevail. The two factors relevant in considering prein-dictment delay are (1) the reasonableness of the delay, and (2) the resulting harm to the accused: The burden of proof is on the defendant to show the absence of a valid reason for the delay and the fact of prejudice, though the state has the burden, once the issue is raised, to come forward with reasons for the delay. When the reasons are advanced, the defendant must show that they do not justify the delay. York, 757 P.2d at 70-71 (quoting Alexander, 611 P.2d at 474) (other citations omitted). In the present case, the pertinent period of delay amounts to slightly more than twenty months — from the filing of charges against Mouser on September 16, 1987, to his arrest on May 25, 1989. On review, the state does not challenge the superior court's finding of a lack of due diligence in arresting Mouser during this time. The state nevertheless maintains that Mouser failed to make an adequate showing of actual prejudice. We agree. Mouser's exclusive showing of prejudice consists of the conclusory and unverified assertion that the delay in bringing him to trial would make it difficult for him to find witnesses and that, in any event, the memories of any witnesses he might find would inevitably have faded. The trial court accepted this generalized assertion as an adequate showing of prejudice. The court reasoned that, given the length of the delay, Mouser's claim of faded memory and possibly missing witnesses was plausible. It thus concluded that Mouser had shown "a colorable amount of prejudice . not enormous but real-" This finding is problematic because it overlooks the distinction between actual prejudice and possible prejudice. At most, Mouser established a possibility of prejudice stemming from the state's delay in effecting his arrest. The problem of lost witnesses and faded recollections is not unique to cases involving protracted delay and does not in itself establish a denial of fundamental fairness. As the Alaska Supreme Court said in Yarbor v. State, 546 P.2d 564, 568 (Alaska 1976): "We think it appropriate to note at the outset that to some degree there are faded recollections in every criminal action.... " Moreover, absent specific evidence, there is no reason to suppose that the prospect of faded memories and lost witnesses stemming from lengthy delay will invariably be prejudicial to the accused: [ DJelay is a two-edged sword. It is the Government that bears the burden of proving its case beyond a reasonable doubt. The passage of time may make it difficult or impossible for the Government to carry this burden. United States v. Loud Hawk, 474 U.S. 302, 315, 106 S.Ct. 648, 656, 88 L.Ed.2d 640 (1986). Here, Mouser's burden was to show actual prejudice, not merely potential or possible prejudice. By actual prejudice we mean a particularized showing that the unexcused delay was likely to have a specific and substantial adverse impact on the outcome of the case. Cf. State v. Jones, 759 P.2d 558, 568 (Alaska App.1988) (discussing prejudice requirement in the context of a claim of ineffective assistance of counsel). The Alaska Supreme Court has consistently recognized that generalized claims of lost witnesses and faded memories do not suffice as prejudice supporting the finding of a violation of due process. See, e.g., Dixon v. State, 605 P.2d 882, 891-92 (Alaska 1980); Prenesti v. State, 594 P.2d 63, 65 (Alaska 1979); Yarbor, 546 P.2d at 568. The United States Supreme Court has likewise distinguished between possible and actual prejudice and has expressly recognized that the generalized prospect of faded memories and lost witnesses does not amount to actual prejudice: Appellees rely solely on the real possibility of prejudice inherent in any extended delay: that memories will dim, witnesses become inaccessible, and evidence be lost. In light of the applicable statute of limitations, however, these possibilities are not in themselves enough to demonstrate that appellees cannot receive a fair trial and to therefore justify the dismissal of the indictment. Marion, 404 U.S. at 325-26, 92 S.Ct. at 466. In circumstances similar to Mouser's, this court has also previously emphasized that, to prevail on a claim of preaccusation delay, the accused must make a particularized showing of actual and substantial prejudice: "At the very least, [the accused] must show that but for the delay, he would have been able to present favorable evi dence. Mere speculation about the loss of favorable evidence is insufficient." Wilson, 756 P.2d at 311. Absent a showing of some specific adverse impact stemming from delay, the requirement of showing prejudice is not met, and the process of balancing prejudice against the justification for delay is simply not triggered, for, as we have previously said, "even if there is no reason advanced for the delay, the defendant must still show actual and substantial prejudice in order to prevail_" Id. See also Dixon, 605 P.2d at 891-92; Prenesti, 594 P.2d at 64-65. Here, Mouser's generalized claim of possibly lost witnesses and failed memories failed to meet the actual prejudice requirement and thus did not support a finding that his right to due process was violated. B. Speedy Trial We now turn to the trial court's alternative ground for dismissal: its finding that the delay in arresting Mouser deprived him of his right to a speedy trial, as secured by the United States and Alaska Constitutions. In contrast to the due process clause's outcome-oriented focus on actual prejudice, the constitutional guarantee of speedy trial deals directly with delay and addresses an array of delay-related concerns: The speedy trial guarantee has been seen as fulfilling at least three purposes: (1) to prevent harming the defendant by a weakening of his case as evidence in memories of witnesses grow stale with the passage of time; (2) to prevent prolonged pretrial incarceration; and (3) to limit the infliction of anxiety upon the accused because of longstanding charges. Rutherford v" State, 486 P.2d 946, 947 (Alaska 1971). See also Glasgow v. State, 469 P.2d 682, 685 (Alaska 1970); Creekpaum, 732 P.2d at 567. For this reason, a showing of actual prejudice is not a prerequisite to relief under the speedy trial clause; a showing of possible prejudice may suffice. Moore v. Arizona, 414 U.S. 25, 26-27, 94 S.Ct. 188, 189-190, 38 L.Ed.2d 183 (1973). See also Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). When delay is extensive, prejudice may be presumed. Compare Rutherford, 486 P.2d at 948-49, and Glasgow, 469 P.2d at 684-85 (presuming prejudice from a delay of over fourteen months between charge and trial), with Tarnef v. State, 492 P.2d 109, 112 (Alaska 1971), and Nickerson v. State, 492 P.2d 118 (Alaska 1971) (requiring defendant to demonstrate prejudice in order to prevail). Before considering the superior court's finding of a speedy trial violation in the present case, however, we must confront the threshold question of whether Mouser's constitutional right to a speedy trial applied during the disputed period of delay. The unexcused delay in this case occurred after Mouser had been charged but before he was arrested. According to the state, Mouser's constitutional right to a speedy trial did not attach until after his arrest. For this proposition, the state cites two recent United States Supreme Court decisions, United States v. Loud Hawk, 474 U.S. 302, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986), and United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982). In both cases, the Court emphasized that a core concern of the speedy trial right is protection against restraints on liberty that typically follow arrest on formal charges. Relying on the discussion in Loud Hawk and MacDonald, the state reasons that, because Mouser was not subject to any restraint until he was arrested and served formal notice of his pending charges, his constitutional right to a speedy trial had not attached. The state insists that all of the delay occurring before Mouser's arrest can only be analyzed under the due process preaccusation delay standard. We do not think the issue is as clear-cut as the state suggests. Cases decided under both the United States and Alaska Constitutions have usually identified two alternative points at which the right to speedy trial attaches: [ T]he right to a speedy trial does not attach before the defendant becomes formally accused — that is, the subject of a filed complaint or an arrest. Yarbor, 546 P.2d at 567 (emphasis added) (relying on Marion, 404 U.S. at 321-22, 92 S.Ct. at 463-64). This rule has commonly been understood to mean that the accused's right to a speedy trial can be triggered either by the filing of a formal charge or by an arrest: "The general rule [is] that the speedy trial right attaches at the time of arrest or formal charge, whichever comes first...." W.R. LaPave and G. H. Israel, 2 Criminal Procedure § 18.1 at 400 (1984) (emphasis added). Although there is disagreement as to whether the filing of a secret indictment will trigger the speedy trial right prior to arrest, e.g., compare United States v. Watson, 599 F.2d 1149, 1155 (2d Cir.1979), with Stewart v. State, 170 Ind.App. 696, 354 N.E.2d 749, 752 (1976), there appears to be general consensus that the right to speedy trial attaches upon the formal filing of a public charge, at least if the charge is in a form that would vest the court in which it is filed with jurisdiction to try the accused. See LaFave and Israel, § 18.1 at 120 (1989 Supp.); United States v. Dennard, 722 F.2d 1510, 1512-13 (11th Cir.1984); Serna v. Superior Court, 40 Cal.3d 239, 219 Cal.Rptr. 420, 432, 707 P.2d 793, 805 (1985); State v. Gee, 298 Md. 565, 471 A.2d 712, 715 (1984); State v. Wirth, 39 Wash.App. 550, 694 P.2d 1113, 1115 (1985). While many forms of prejudice that the sixth amendment's speedy trial clause seeks to prevent arise after the accused is arrested or receives actual notice of a pending charge, some occur upon the filing of a formal, public charge, regardless of notice to the accused. Exposure to public obloquy is one of the core concerns of the sixth amendment. Marion, 404 U.S. at 320, 92 S.Ct. at 463. This concern is triggered by the filing of a formal, public accusation. As the California Supreme Court recognized in rejecting an argument similar to the state's speedy trial argument in Mouser's case, it is unrealistic to assume that no adverse consequences will flow from a publicly pending criminal charge, even if the accused remains unaware that it has been filed. See Serna, 219 Cal.Rptr. at 433-34, 707 P.2d at 806-07. The Alaska Supreme Court, applying our state constitution, has made it clear that the right to a speedy trial attaches when "the defendant becomes formally accused_" Yarbor, 546 P.2d at 567. As explained in Yarbor, the principal reason against extending the protections of the speedy trial clause to periods of delay occurring before formal accusation is the need to avoid "a rule which would prompt district attorneys to initiate prosecutions without waiting for more than the minimum evidence to establish probable cause_" Id. at 566. This danger is nonexistent in Mouser's case. Here, the district attorney's office clearly manifested its decision to prosecute Mouser when it formally and publicly filed the information charging him with sexually abusing his stepdaughter. We conclude that, at that point, Mouser became "formally accused," and his constitutional right to a speedy trial attached. We turn to the issue of whether Mouser's right to a speedy trial was violated. In arguing that this right was violated, Mouser correctly points out that the unexcused delay in his case, approximately twenty months, must be deemed prejudicial. The Alaska Supreme Court has twice held unexplained delays of fourteen months or more to be presumptively prejudicial. See Rutherford, 486 P.2d at 951-52; Glasgow, 469 P.2d at 688-89. Mouser is nonetheless mistaken in assuming that a delay of sufficient duration to be presumptively prejudicial invariably violates the constitutional right to speedy trial. Federal law appears to be well settled that presumptively prejudicial delay is the point of departure rather than the point of termination for speedy trial analysis. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court described the function "presumptive prejudice" plays in the overall process of determining whether a speedy trial violation has occurred. Barker adopted a "balancing test in which the conduct of both the prosecution and the defendant are weighed." Id. at 530, 92 S.Ct. at 2192 (footnote omitted). This balancing test consists of four factors: A balancing test necessarily compels courts to approach speedy trial cases on an. ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. Id. (footnote omitted). Barker went on to consider each factor in greater detail. In discussing the first factor — length of delay — Barker explained the role of presumptive prejudice: The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Id. Thus, under Barker, a "delay which is presumptively prejudicial" does not in itself violate speedy trial; it merely requires consideration of the remaining factors in the balance. Alaska's seminal speedy trial cases, Rutherford, 486 P.2d 946, and Glasgow, 469 P.2d 682, were decided before the United States Supreme Court decided Barker. Although both Rutherford and Glasgow recognized that an unexcused delay of fourteen months or more is presumptively prejudicial, neither explicitly adopted a balancing test. Since the United States Supreme Court's decision in Barker, the Alaska Supreme Court has had no occasion to expressly adopt or reject the balancing test adopted in that case. Because the Alaska Supreme Court's decisions in Rutherford and Glasgow were specifically based on the Alaska Constitution's speedy trial clause and not on the sixth amendment to the United States Constitution, the Alaska Supreme Court could conceivably elect to adopt a more protective standard under our constitution than Barker adopted under the federal constitution. In the present case, however, Mouser has advanced no cogent reasons for applying a different test than that adopted in Barker. In this respect, it is significant that the Alaska Supreme Court's decisions in Rutherford and Glasgow, while applying the Alaska Constitution, relied primarily on speedy trial decisions that the United States Supreme Court had recently decided. It is further significant that, in at least one pre-Barker speedy trial case decided after Rutherford and Glasgow, the Alaska Supreme Court suggested the appropriateness of a balancing test essentially similar to the test later formulated by the United States Supreme Court. See Tarnef, 492 P.2d at 112. For these reasons, we find the Barker test appropriate for evaluation of Mouser's speedy trial claim. In the present case, neither party called the superior court's attention to the Barker test. Accordingly, even though the court mentioned some of the Barker criteria— the length and nature of the delay and the extent of prejudice stemming from it — it did not purport to apply the correct balancing formula. The court's failure to apply the correct test requires us to vacate the order of dismissal and remand this case for application of the Barker test. To provide guidance to the court and the parties on remand, we believe it appropriate to offer some additional observations. As we have already indicated, the first factor of the test — length of delay — is readily satisfied. The unexcused delay in Mouser's case fell well within the range of delay that the Alaska Supreme Court deemed presumptively prejudicial in Rutherford and Glasgow. The next factor is the reason for the delay. The state has not challenged, and we accept, the trial court's conclusion that the twenty-month delay in this case was unreasonable because the state failed to exercise due diligence in arresting Mouser. In considering the reasons for delay in Mouser's case, however, the superior court did not go beyond this conclusion. Finding the state responsible for the delay does not resolve the issue, however, for it is necessary to determine precisely how heavily the lack of diligence should weigh against the state. As observed by the Court in Barker: A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay. 407 U.S. at 531, 92 S.Ct. at 2192. Here, the record establishes that, although the state may not have exercised due diligence in arresting Mouser, it made at least several unsuccessful efforts to serve him with the outstanding arrest warrant. Moreover, the state's limited efforts to serve the arrest warrant must be viewed in context with the initial efforts that it made to serve Mouser with a summons to appear in response to the charges. On September 28, 1987, shortly after the original information was filed against Mouser, a summons was issued calling for his appearance on October 14, 1987. In testimony presented at the evidentiary hearing below, the state demonstrated that a warrant officer made substantial efforts to locate Mouser prior to the October 14 appearance date. All of his efforts proved unsuccessful, however, and when the officer returned the summons on October 14, he had no viable leads to Mouser's whereabouts. While the limited efforts subsequently made by the state to serve the arrest warrant on Mouser may seem patently inadequate when viewed in isolation, the lack of diligence certainly appears less flagrant when considered against the backdrop of the considerably more substantial unsuccessful efforts that had already been made in attempting to serve Mouser with a summons. The overall weight to be given to the state's lack of due diligence was not considered by the superior court. On remand, the court should address this issue. The third factor is the effort that Mouser made to assert his speedy trial right. Although it is clear that a waiver of speedy trial is not to be presumed from failure to assert the right, the United States Supreme Court has explained that affirmative efforts to assert the right retain important evidentiary value in the overall balancing test: Whether and how a defendant asserts his right is closely related to the other factors we have mentioned. The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely a defendant is to complain. The defendant's assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial. Barker, 407 U.S. at 532, 92 S.Ct. at 2193. The superior court gave no consideration to this factor in its findings. Mouser presented no evidence to indicate that he made any effort to inquire into the status of his case during the period of delay in question and he has advanced no explanation for the apparent lack of inquiry. The record does establish that Mouser took the initiative in contacting the police several weeks before charges were filed. At the time, he was expressly told that a charging decision was still pending in the district attorney's office. It is unclear if Mouser was told anything that could have led him to believe that charges would not be filed. It is equally unclear if Mouser made any effort over the ensuing twenty months to ascertain whether charges had been filed. These are factual issues that remain to be developed by the parties on remand and addressed by the superior court in reconsidering its decision. The final factor to be balanced is the extent of prejudice. As we have already noted, actual prejudice need not be established. Nevertheless, the extent of prejudice is highly relevant in the balancing process. When other factors in the balance weigh heavily against the state, a mere showing of possible prejudice may entitle the accused to prevail on a speedy trial claim. On the other hand, other factors being equal, the mere possibility of prejudice stemming from a vague claim of failed memory and potentially unavailable witnesses will deserve little weight. See United States v. Dennard, 722 F.2d 1510, 1513-14 (11th Cir.1984); see also United States v. Loud Hawk, 474 U.S. 302, 315, 106 S.Ct. 648, 656, 88 L.Ed.2d 640 (1986). Similarly, absent other significant prejudice, the anxiety and uncertainty normally stemming from a lengthy period of delay will also seldom warrant significant weight in the balance. As the Alaska Supreme Court has held, "[i]t would be an exceptional case where such anxiety, standing alone, would constitutionally necessitate dismissal of a prosecution." Nickerson, 492 P.2d at 121. Here, Mouser's conclusory assertion of possible prejudice must be considered but plainly deserves minimal weight. The factual record in this case, however, is meager and could benefit from further development. It is conceivable that on remand Mouser will be capable of making a more specific showing of actual prejudice. In summary, although Mouser has failed to establish a violation of his right to due process, he has made a colorable showing of a violation of his right to a speedy trial. Since the superior court did not apply the correct standard in finding a speedy trial violation, a remand is necessary. The order of dismissal is VACATED, and this case is REMANDED for further proceedings consistent herewith. . In opposition to the state's petition for review, Mouser argued that this court had no authority to grant a petition by the state seeking appellate review of an order of dismissal. Mouser has repeated this argument in his brief on the merits. Mouser relies on the provisions of AS 22.-07.020 and Appellate Rule 202(c), which preclude the state from appealing in a criminal case except "to test the sufficiency of the indictment or on the ground the sentence is too lenient." Mouser's argument is without merit. AS 22.-07.020(d) and Appellate Rule 202(c) act only to deprive the state of an appeal as a matter of right. Neither provision purports to preclude the state from seeking appellate review on a discretionary basis, and neither restricts this court from granting discretionary review. Both the Alaska Supreme Court and this court have previously recognized that a petition for review, as provided for under Part 4 of the Appellate Rules, is the appropriate vehicle for the state to rely on when it seeks discretionary review of a non-appealable dismissal order. See Kott v. State, 678 P.2d 386, 390-91 (Alaska 1984); Stocker v. State, 741 P.2d 1215, 1216 (Alaska App.1987). . The United States Constitution, amend. XIV; Alaska Constitution, art. I, § 7. . In ordering dismissal, the trial court additionally found prejudice in the anxiety that it believed Mouser must have suffered due to the charges pending against him. For purposes of due process analysis, however, anxiety does not in itself amount to prejudice. The due process prohibition against unreasonable delay is aimed at assuring that delay does not unfavorably affect the outcome of the accused's case. Because anxiety, no matter how real, will not, in itself, impair the accused in defending against a charge, it does not qualify as prejudice in the due process context. Cf. Nickerson v. State, 492 P.2d 118, 121 (Alaska 1971) (indicating that, even in the context of the constitutional right to a speedy trial, anxiety, standing alone, would seldom warrant dismissal). . It is particularly questionable under the circumstances of this case whether it would be appropriate to presume prejudice from Mouser's generalized assertion of possibly unavailable witnesses and failed memories. Early in the case, Mouser was apprised that an investigation was pending, and he was specifically informed of the accusations that had been made against him. In identical situations, the Alaska Supreme Court has indicated that the state should not be held accountable for faded memories or lost witnesses, at least unless the defendant is shown to have acted with reasonable diligence in attempting to preserve evidence after being given notice of a pending investigation. See Alexander, 611 P.2d at 475; Prenesti v. State, 594 P.2d 63, 65 (Alaska 1979). . United States Constitution, amend. VI; Alaska Constitution, art. I, § 11. . To bolster this argument, the state cites Alaska's speedy trial rule, Alaska R.Crim.P. 45, which establishes a 120-day period within which the accused must be brought to trial. Under this rule, the mere filing of a charge does not trigger the 120-day speedy trial period. In stead, the period begins running "from the date the defendant is arrested, initially arraigned, or from the date the charge is served upon the defendant, whichever is first." Alaska R.Crim.P. 45(c)(1). It is clear that Mouser's rights under the speedy trial rule did not attach until he was arrested. The speedy trial rule, however, is also not determinative of the constitutional right to speedy trial. Although meant to address the same concerns as the constitutional right to speedy trial, Criminal Rule 45 was not intended as a procedural or substantive embodiment of that constitutional right. See Snyder v. State, 524 P.2d 661, 664 (Alaska 1974).

10379048

Judy M. MITCHELL, Appellant, v. STATE of Alaska, Appellee

Mitchell v. State

1991-10-25

No. A-3818

1163

1165

818 P.2d 1163

818

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T19:02:39.964286+00:00

CAP

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

Judy M. MITCHELL, Appellant, v. STATE of Alaska, Appellee.

Judy M. MITCHELL, Appellant, v. STATE of Alaska, Appellee. No. A-3818. Court of Appeals of Alaska. Oct. 25, 1991. David R. Weber, Asst. Public Defender, and John B. Salemi, Public Defender, Anchorage, for appellant. Terry A. Fikes, Asst. Dist. Atty., Edward E. McNally, Dist. Atty., Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

981

6256

OPINION MANNHEIMER, Judge. Judy M. Mitchell pleaded no contest to two counts of unsworn falsification, AS 11.56.210(a)(1), preserving her right to challenge the convictions on double jeopardy grounds. Cooksey v. State, 524 P.2d 1251 (Alaska 1974). We affirm. In August and September, 1989, Mitchell applied for and received unemployment insurance benefits; however, she lied in her benefits application. When this was discovered, Mitchell agreed to repay the unlawfully obtained benefits plus the 50-per-cent penalty specified in AS 23.20.390(f). She also signed the following acknowledgement: It is expressly understood and agreed that this [repayment] agreement relates exclusively to my civil liability to make restitution of overpaid benefits . and that it in no way relates to or absolves me from any other liability imposed by state or federal law. Two weeks after she signed this acknowledgment, Mitchell was served with a criminal complaint charging her with five counts of unsworn falsification based on the fraudulent unemployment benefit claims she had submitted to the Department of Labor. She asked the district court to dismiss these charges, asserting that the criminal charges violated the guarantee against double jeopardy. The district court denied Mitchell's motion, leading to this appeal. Mitchell contends that she was already penalized for her conduct when the court imposed the 50-pereent civil penalty provided in AS 23.20.390(f), and that the double jeopardy clauses of both the federal and state constitutions bar further prosecution. Mitchell is in error. With regard to the federal guarantee against double jeopardy contained in the Fifth Amendment to the United States Constitution, Mitchell's argument is foreclosed by United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989). The defendant in Halper, a physician, had fraudulently inflated the value of 65 Medicare claims by $9.00 each. He received a prison sentence and a fine of $5000. The governing statute also provided for a civil penalty of $2000 per false claim. Under this provision, the defendant was assessed a penalty of $130,000 for submitting false claims totaling $585. This penalty, the Supreme Court ruled, was so disproportionate to the government's loss that it should be considered a criminal punishment: imposing the full statutory amount in the civil lawsuit would violate the double jeopardy clause of the Fifth Amendment because it would punish Halper a second time for the same conduct for which he had been convicted. Thus, in Halper, the United States Supreme Court ruled that the imposition of ostensibly "civil" penalties for fraud upon the government could potentially constitute "jeopardy" if the penalties were completely disproportionate to the injury suffered by the government. But although the Supreme Court granted relief to Halper, the court carefully affirmed its prior cases upholding the government's right to impose civil penalties in excess of the government's actual loss: [T]he Government is entitled to rough remedial justice, that is, it may demand compensation according to somewhat imprecise formulas, such as reasonable liquidated damages or a fixed sum plus double damages, without being deemed to have imposed a second punishment for the purpose of double jeopardy analysis. Halper, 490 U.S. at 446, 109 S.Ct. at 1900. [W]e have recognized that in the ordinary case fixed-penalty-plus-double-damages provisions can be said to do no more than make the Government whole. We cast no shadow on these time-honored judgments. What we announce now is a rule for the rare case . where a fixed-penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he has caused. Halper, 490 U.S. at 449, 109 S.Ct. at 1902. Mitchell was obliged to repay the amount she fraudulently obtained from the Department of Labor plus a penalty of 50 percent. The language of Halper demonstrates that Mitchell has no claim under the federal Constitution. Mitchell's brief to this court contains no separate argument based on the double jeopardy provision found in Article I, Section 9 of the Alaska Constitution. However, at oral argument Mitchell's attorney urged this court to interpret this provision more broadly than its federal counterpart. We decline to do so for two reasons. First, this contention was not briefed; it is therefore not preserved. Wren v. State, 577 P.2d 235, 237 n. 2 (Alaska 1978). Second, when a litigant claims that a provision of the state constitution should be interpreted at variance with its federal counterpart, it is incumbent upon that litigant to point this court to something in the text, context, or history of the Alaska Constitution which justifies this divergent interpretation. Abood v. League of Women Voters, 743 P.2d 333, 340-43 (Alaska 1987); State v. Wassillie, 606 P.2d 1279, 1281-82 (Alaska 1980); Annas v. State, 726 P.2d 552, 556 n. 3 (Alaska App.1986); and State v. Dankworth, 672 P.2d 148, 151 (Alaska App.1983). Mitchell has failed to do this. At oral argument, Mitchell claimed that the "fair and just treatment" clause of Article I, Section 7 of the state constitution indicates that Alaska's double jeopardy clause should be interpreted expansively. This clause reads: "The right of all persons to fair and just treatment in the course of legislative and executive investigations shall not be infringed." This language does not seem to have any particular relevance to Alaska's double jeopardy provision. Moreover, because Mitchell's contention was raised for the first time at oral argument, she has not briefed the history or meaning of the "fair and just treatment" clause. We therefore decline to reach Mitchell's argument. Wren v. State, 577 P.2d 235. The judgement of the district court is AFFIRMED.

10403842

STATE of Alaska, Petitioner, v. William T. JOHNSON, Respondent

State v. Johnson

1986-05-30

No. S-616

37

39

720 P.2d 37

720

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:22:19.089790+00:00

CAP

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

STATE of Alaska, Petitioner, v. William T. JOHNSON, Respondent.

STATE of Alaska, Petitioner, v. William T. JOHNSON, Respondent. No. S-616. Supreme Court of Alaska. May 30, 1986. W.H. Hawley, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, Norman C. Gorsuch, Atty. Gen., Juneau, for petitioner. Mary Greene and William Davies, Asst. Public Defenders, Fairbanks, for respondent. Before RABINOWITZ, C.J., and MATTHEWS, BURKE, COMPTON and MOORE, JJ.

1723

10543

OPINION COMPTON, Justice. This case comes before the court for a second time, the second degree murder conviction of William Johnson having been reversed twice previously by the court of appeals because of inadequate jury instructions. We find that the instructions were adequate. Therefore, we reverse. I. FACTUAL AND PROCEDURAL BACKGROUND William Johnson fatally shot his adopted sister, Joyce Ann, in the village of Nulato. He was intoxicated at the time. Joyce Ann was outside the family cabin, approaching the front door, when a shot fired by William from inside the cabin went through the door, striking the girl in the head. William told police that he did not intentionally shoot Joyce Ann and that he had not known that anyone was outside the front door. After presentation of the evidence, Judge Blair instructed the jury on, among other things, second degree murder (extreme indifference murder) and on the lesser in- eluded offenses of manslaughter and criminally negligent homicide. Judge Blair defined "recklessly" for the jury in connection with these lesser included offenses. Judge Blair refused the defense's request that the jury be instructed on Johnson's awareness of the risk. While the jury was deliberating, it asked the court for "the example of extreme indifference to the value of human life that was discussed during summation argu-ments_" Judge Blair responded by giving the jury a supplemental instruction, over defendants objection. Johnson, convicted of second degree murder, a violation of AS 11.41.110(a)(2), appealed his conviction. The court of appeals reversed on the ground that the trial court "erred in telling the jury that Johnson's subjective awareness of the risk to his victim was irrelevant to the charge of second degree murder...." Johnson v. State, MO & J No. 279 at 2 (Alaska App. Jan. 26, 1983). This court granted the state's petition for hearing and reversed, holding that "[njoth-ing in the record lends support to the Court of Appeals' description of what the Superi- or Court told the jury." State v. Johnson, MO & J No. 147 at 5 (Alaska Feb. 1, 1984). This court expressly refused to reach the merits of the case. Id. On remand, the court of appeals again reversed Johnson's conviction, relying primarily on Neitzel v. State, 655 P.2d 325 (Alaska App.1982); Johnson v. State, MO & J No. 654 (Alaska App. Aug. 8, 1984). The court of appeals discussed three main issues and held that: (1) the trial court erroneously instructed the jury on the mens rea for extreme indifference murder because the instruction on "recklessly" was not specifically tied to the definition of extreme indifference murder; (2) the supplemental instruction did not cure this initial error because it did not clearly inform the jury that Johnson must have been aware of the risk that his conduct could cause the death of another person for an extreme indifference murder conviction; and (3) the errors in the instruction were not harmless. Johnson v. State, MO & J No. 654 at 4, 5, 7. II. ADEQUACY OF THE JURY INSTRUCTIONS The core dispute between the parties is whether the trial court correctly instructed the jury regarding the mens rea for extreme indifference murder. Johnson relies on Neitzel v. State, 655 P.2d 325 (Alaska App.1982) in arguing that second degree murder requires awareness of the surrounding circumstances and result of the act. He further maintains that the trial court failed to make any mention of the requisite mental state in its instructions to the jury. The state argues on the other hand, that the sum of the given instructions satisfied the law, i.e., "[t]he jury was told that the crime required proof of awareness of risk." We agree with the state and hold that the trial courts' instructions as a whole were adequate to satisfy the standard established in Neitzel. In that case, the intoxicated defendant had fired a number of gunshots in the area around his girl friend which missed, and then fired a fatal bullet which entered her head. He was convicted of murdering his girl friend in violation of AS 11.41.110(a)(2), the same statute under which Johnson was convicted. The court of appeals undertook to explain the state of mind associated with this type of murder through a comprehensive review of the Model Penal Code's Tentative Draft and Alaska's Revised Code. The court broke down the offense into its three constituent elements: 1) conduct; 2) surrounding circumstances; and (3) result. It concluded that the legislature, by adopting the Revised Code, intended the conduct to be "knowing" (even though the statute says "intentionally performs an act"), and the surrounding circumstances and result to be governed by "recklessness." Neitzel, 655 P.2d at 333. The court found support for its interpretation in the legislative comment to AS 11.41.110(a)(2). The court rejected the state's arguments that the state of mind for the surrounding circumstances should be governed by an objective test, akin to criminal negligence. Furthermore, it is implicit from the court's discussion that it viewed recklessness as requiring proof of a subjective state of mind. Id. at 326. The court in Neitzel stated that jurors trying to determine if conduct resulting in a death was negligent, reckless or malicious must weigh four factors: 1. The social utility of the actor's conduct; 2. the magnitude of the risk his conduct creates including both the nature of foreseeable harm and the likelihood that the conduct will result in harm; 3. the actor's knowledge of the risk; and 4. any precautions taken to minimize the risk. Neitzel, 655 P.2d at 336-37. However, the court went on to state, as suggested by the commentary to the Model Penal Code, that these concepts were all adequately conveyed to the jury by the phrase "extreme indifference to the value of human life." Id. at 338. This phrasing was used in the original instructions to the jury and was amplified upon by Judge Blair in the Supplemental Instruction. It is correct that the instruction defining "recklessly," given in conjunction with the lesser included offense of manslaughter, was not repeated in the definition of extreme indifference murder. However, the definition of manslaughter required that "... the circumstances did not amount to murder in the second degree," and the Supplemental Instruction on extreme indifference murder explicitly required "... more than a reckless act." A fair reading of these instructions in their entirety "... adequately conveyed that idea [Johnson's subjective awareness of the risk] to the jury." Neitzel, 655 P.2d at 338. REVERSED. . The second degree murder instruction reads: A person commits the crime of murder in the second degree if he intentionally performs an act that results in the death of another person under circumstances manifesting an extreme indifference to the value of human life. In order to establish the crime of murder in the second degree, it is necessary for the state to prove beyond a reasonable doubt the following: First, that the event in question occurred at or near Nulato, in the Fourth Judicial District, state of Alaska, and on or about the 8th day of March, 1981; Second, that William T. Johnson intentionally performed an act, to wit: discharging a firearm through the door of Andrew Johnson's residence; Third, that defendant's act caused the death of Joyce Ann Johnson; and Fourth, the act was performed under circumstances manifesting an extreme indifference to the value of human life. . The recklessness instruction tracked the language of AS 11.81.900(a)(3). It reads: A person acts "recklessly" with respect to a result described by the law when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur. The risk must be of such a nature and such a degree that disregard of it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who is unaware of a risk of which he would have been aware had he not been intoxicated acts recklessly with respect to that risk. . The instruction reads: [A]n act "performed under circumstances manifesting an extreme indifference to the value of human life" is an act which creates a very high degree of risk and which exhibits an extreme disregard of social duty. It must be more than a criminally negligent act and more than a reckless act. The examples read to you were from the commentary to the statute and read as follows: "... [a]n example of conduct covered by this provision would be shooting through a tent under circumstances that the defendant did not know a person was inside or persuading a person to play "russian [sic] roulette." .AS 11.41.110(a)(2) reads in pertinent part: Murder in the Second Degree, (a) A person commits the crime of murder in the second degree if.... (2) the person intentionally performs an act that results in the death of another person under circumstances manifesting an extreme indifference to the value of human life. . The Legislative Comment reads: Subsection (a)(2) describes conduct that is very similar to the "substantially certain" clause in subsection (a)(1). Under this provision, however, the defendant need not necessarily know that his conduct is substantially certain to cause death or serious physical injury. An example of conduct covered by this provision would be shooting through a tent under circumstances where the defendant did not know a person was inside or persuading a person to play "russian [sic] roulette." The defendant is only required to intend to perform the act; there is no requirement that he intend to cause death or that he knows that his conduct is substantially certain to cause death. 2 Senate Journal Supplement No. 47, at 10 (June 12, 1978). . The state has since conceded the correctness of the court of appeals' holding that subjective awareness of the risk is required under AS 11.-41.110(a)(2). This concession is necessary to allow a clear distinction between the offenses of reckless (extreme indifference) murder and reckless manslaughter so as to avoid due process problems.

10428881

James L. MOUNT and Helen R. Mount, husband and wife, Appellants, v. Mary Jane CURRAN, individually and as executrix for the Estate of Thomas E. Curran, Jr., and The Parrish Company, a partnership, Appellees

Mount v. Curran

1982-12-30

No. 4872

392

396

657 P.2d 392

657

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:59:25.249702+00:00

CAP

Before RABINOWITZ, C.J., BURKE, J., and Chief Judge BRYNER and Judge SINGLETON, Court of Appeals Judges.

James L. MOUNT and Helen R. Mount, husband and wife, Appellants, v. Mary Jane CURRAN, individually and as executrix for the Estate of Thomas E. Curran, Jr., and The Parrish Company, a partnership, Appellees.

James L. MOUNT and Helen R. Mount, husband and wife, Appellants, v. Mary Jane CURRAN, individually and as executrix for the Estate of Thomas E. Curran, Jr., and The Parrish Company, a partnership, Appellees. No. 4872. Supreme Court of Alaska. Dec. 30, 1982. See also, Alaska, 657 P.2d 389. Clem H. Stephenson, Fairbanks, for appellants. Julian L. Mason, Baily & Mason, Anchorage, for appellees. Before RABINOWITZ, C.J., BURKE, J., and Chief Judge BRYNER and Judge SINGLETON, Court of Appeals Judges. Bryner and Singleton, Chief Judge and Judge of the Court of Appeals, sitting by assignment made pursuant to article IV, section 16 of the Constitution of Alaska.

2534

15153

OPINION ON REHEARING RABINOWITZ, Chief Justice. This is an appeal from a grant of partial summary judgment regarding a claim of adverse possession. An action of quiet title to a tract of land in Fairbanks was brought by Mary Jane Curran, Thomas E. Curran, Jr., and the Parrish Company, their successors in interest. Curran alleged that the Parrish Company was the record title holder and owner in fee simple of Lots 6, 7A, and 7B, Block 95, of the Fairbanks townsite, as laid out in the survey known as the Robe Map of 1909. James and Helen Mount, owners of Lot 8 (an adjacent lot), answered that portions of these lots (6, 7A, and 7B) were theirs by right of adverse possession. The claim was based on the Mounts' occupancy of the disputed portions since 1973, and occupancy before that time by their predecessor in interest, Simeon Bulavski, who owned the property from 1936 to 1973. The 1973 conveyance of Lot 8 to the Mounts from Si-meon Bulavski described Lot 8 by metes and bounds, and this description results in an overlap with Lots 6, 7A and 7B as claimed by Curran and described in the Robe Map. Parrish Company moved for partial summary judgment on its claim as to ownership of Lot 7A. The history of that particular portion differs from that of Lots 6 and 7B in that 7A was acquired from its then-record owner, one Harry Bisoff, by the City of Fairbanks on February 2, 1962, following foreclosure on a tax lien. The City held the property until 1973 when it sold Lot 7A to the partnership of "Curran and Hodges." Parrish Company's basis for summary judgment was that, even conceding actual occupancy of the disputed portions by the Mounts and their predecessor in interest (Bulavski) since 1936, the intervention of the tax foreclosure would defeat the adverse possession claim. Following argument and briefing, the superior court ruled that, as a matter of law, the Mounts had no claim to Lot 7A. The Mounts moved to set aside the partial summary judgment, submitting various materials in support of the motion. The superior court denied the motion, and this appeal by the Mounts followed. In our initial opinion, the appeal was disposed of by resolving the question of whether the City, by its foreclosure on Bisoff's land, could obtain that interest in the disputed portions which Bisoff allegedly had already lost by adverse possession to Bulavski. In their petition for rehearing, appellees argued that the issue upon which we disposed of the appeal was neither raised at trial, listed on the points on appeal, nor briefed to this court. We are persuaded by appellees' arguments and have concluded that the opinion previously issued in this case must be withdrawn and disapproved, since it was grounded upon an issue that was not briefed in this court nor raised in the superior court. In light of the foregoing conclusion, it is now incumbent upon us to address the specifications of error originally advanced by the Mounts which we did not reach in our first opinion. The Mounts' first assertion of error is that the superior court incorrectly held that "for tax purposes Lot 7A extended west of the established fence lines between Lots 7 and 8 of Block 95 of the original Town of Fairbanks, Alaska." More specifically, the Mounts contend that the 1909 Robe map, reproduced by Thiele in 1922, showed a boundary which was different from the property lines which had been settled upon by the actual occupants of the land as shown by the fence the occupants had erected. The Mounts further argued that the city's tax deed "actually conveyed the premises within the true boundaries of . Lot 7(A) instead of the boundaries shown on the 1922 map." We reject the Mounts' contention that the tax deed conveyed the property according to the fence lines rather than the recorded map. The tax deed recited that it applied to "Lot 7A, Block 95, Fairbanks Townsite." The Mounts do riot contend that this conveyance did not refer to the recorded townsite map; they simply claim that the map does not reflect the existing property lines. This argument, assuming its validity, does not invalidate the conveyance in the tax deed. Here the city properly taxed and foreclosed on the record title holder and his recorded interest in land. Absent a showing by the Mounts that the initial tax deed did not refer to the recorded townsite map, their claim of error in the map is irrelevant. The map accurately reflected the record title holder. In their second specification of error, the Mounts argue that the superior court committed reversible error "in holding that the Mounts and their predecessors in title did not obtain title to the disputed triangular portion of Lot 7A that extended to the west of the division fences between Lots 7 and 8 by adverse possession," subsequent to the issuance in 1962 of the tax deed to the city. We cannot accept the Mounts' argument that their predecessor in interest reacquired title from the city by adverse possession. The Mounts concede that under current law they could not adversely possess against the city. See AS 29.73.030. The general rule in other jurisdictions is that public property is not alienable through adverse possession. Many states, however, except from this general rule land of a municipality not held for a public purpose. In our view, this exception reflects the "governmental-proprietary functions" distinction which we have refused to adopt in the context of governmental tort liability. Further, we have no reason to think that the legislature, in enacting AS 29.73.030, believed it was changing the existing common law of the state. Assuming, without deciding, that land held under a tax deed is not held for a public purpose, and that the Mounts would be entitled to assert their predecessor's adverse possession against the Currans, we conclude that the Mounts' predecessor in interest did not adversely possess as against the City of Fairbanks. In their third specification of error, the Mounts contend that the superior court erred in failing to hold that Harry Bisoff, the former owner of Lot 7A, redeemed the lot by payment of the taxes. Assuming the alleged payment was made, it came too late to redeem under the applicable statute. But the then-record ownér's payment of all taxes did entitle him to recon-veyance under state law. According to the Mounts' evidence, a repurchase payment was made on two separate occasions, and the city refused to return the property because the buildings on the lot did not comply with the local building code. The city's refusal to resell was authorized by local ordinance. Assuming that all of this information was properly before the court, we find that the city's legal title remained sufficient to defeat any equitable rights of the Mounts' predecessor, whether in the nature of adverse possession or of a defective repurchase. Cf. Wells v. Noey, 380 P.2d 876, 878 (Alaska 1963) (owner's right of redemption delayed beginning of adverse possession until redemption period expired). Even if it did not, the subsequent sale to the Currans cut off the unrecorded equitable rights of the Mounts' predecessor. See, e.g., Whitehead v. Foxhill, 105 F.Supp. 966, 967 (D.Alaska 1952). AFFIRMED. CONNOR, MATTHEWS and COMPTON, JJ., not participating. . The parties apparently have located no copies of the original Robe Map itself. The Map was reproduced by Karl Theile, United States Surveyor General, in 1922. . The dispute seems to be grounded in an ancient discrepancy between the 1909 survey and the boundaries as recognized and utilized by the occupants, shown by fences on the lots. It was apparently this same discrepancy which led to the litigation in Ringstad v. Grannis, 159 F.2d 289 (9th Cir.1947), appeal after remand, 171 F.2d 170 (9th Cir.1948). However, as Cur-ran points out, that case is of no relevance to the specific question here presented. . From Curran and Hodges, the property passed into the Estate of Thomas E. Curran, Jr., of which Mary Curran is the executrix. The property subsequently was sold to the Parrish Co. . At the time of foreclosure, former § 16-1-125r, ACLA 1958, read: Title of city. When a city acquires real property under foreclosure procedures, the conveyance vests in the city title to the property, free from all liens and encumbrances except unpaid taxes and assessments duly levied for local improvements to the property, and liens of the United States and the Territory. In 1963, this provision was replaced by former AS 29.10.531, which contained only minor changes not relevant here. . The trial judge ordered that final judgment be entered as to Lot 7A, pursuant to Civil Rule 54(b). The dispute as to the remaining lots apparently was resolved in favor of the Mounts following trial. . Our disposition of this question in the initial opinion made it unnecessary for this court to address the other points on appeal which had been advanced by the Mounts. . Appellees further asserted that "[i]t was conceded [by the parties] throughout the proceeding that a tax foreclosure forecloses 'all claims of all people.' " . See Jeffries v. Glacier State Tel. Co., 604 P.2d 4, 11 (Alaska 1979); Saxton v. Splettstoezer, 557 P.2d 1126, 1127 (Alaska 1977); Appellate Rule 210(e). . In other words, the Mounts are arguing that the relevant tax assessment should be deemed to have been made on the property based on the boundaries as actually occupied by the owners, rather than as described in the land records. . Evidence submitted at trial, but not at summary judgment, indicates that Lot 7A of Block 95, for tax purposes, does not correspond to existing fence lines, but that it does correspond to the recorded townsite map. See note 5, supra. . The cases cited by the Mounts involve disputes between the record holder and an adverse possessor who has in fact paid taxes. They establish that under a statutory scheme requiring an adverse possessor to pay taxes annually on a claimed tract, payment of taxes assessed on an adjacent lot constitutes payment on all land actually being occupied as part of the assessed lot. See Standall v. Teater, 96 Idaho 152, 525 P.2d 347, 351-52 (1974); Scott v. Gubler, 95 Idaho 441, 511 P.2d 258, 260-61 (1973); Raney v. Merritt, 73 Cal.App. 244, 238 P. 767, 769-70 (1925). None of the cases state that the payment of taxes on an adjacent lot is effective to defeat a tax foreclosure. Even if it were, the argument would have to be raised in a timely manner, not, as here, after the time for challenging the tax foreclosure has passed. . See § 16-1-112b, 16-1-112c, ACLA 1958. . In their brief in support of this specification of error, the Mounts argue, in part, as follows: If, for the sake of argument, the boundary lines between Lots 7 and 8 were those established by the unofficial, unrecorded, 1922 reproduction of the L.S. Robe map of 1909, said disputed segment of Lot 7A became the property of Simeon Bulavski because he had open, notorious, hostile, adverse possession of said disputed segment for more than 10 years after the tax deed was issued to the City of Fairbanks. . AS 29.73.030 reads as follows: A home rule or general law municipality may not be divested of title to real property by adverse possession. . See generally Annot., 55 A.L.R.2d 554 (1957). . City of Fairbanks v. Schaible, 375 P.2d 201, 208-09, 211 (Alaska 1962). See also University of Alaska v. National Aircraft Leasing Ltd., 536 P.2d 121, 128 (Alaska 1975); Libby v. City of Dillingham, 612 P.2d 33 (Alaska 1980). . A procedural requirement of voter ratification of municipal land sales was amended in 1951 to include all land, eliminating an earlier exception for land not held for any public use. We take this as an indication that in the legislature's judgment all municipal land should be treated alike. See § 16-1-35 Twentieth, ACLA 1949, amended by § 1, ch. 61, SLA 1951. The committee report accompanying the bill enacting AS 29.73.030 does not indicate that it was intended to effectuate any significant substantive change in existing law. See 1972 Senate Journal, Supp. 3, 1-11. . The Mounts further argue that as a result of Bisoff s timely redemption the City had no interest in the subject land at the time it purportedly sold the property to the Currans. . Section 16-l-125q, ACLA 1958, provided: Upon filing proof of publication of notice of expiration of redemption period as a part of the foreclosure proceedings, the properties not redeemed within the one year period prescribed herein shall be deeded to the city by the clerk of court. All rights of redemption, with respect to the real properties therein described, shall terminate on the execution of the deed to the city. No return or confirmation of the sale or deed to the city is required or necessary. . See § 16-1-125q(a), ACLA 1959, which provides: Repurchase by record owner or assigns. The record owner at the time of tax foreclosure of any property acquired by a municipal corporation, independent school district, public utility district or other local governmental unit for delinquent taxes, or his assigns, may at any time prior to any sale or contract of sale of such tax foreclosed property by such local governmental unit, be entitled to repurchase such property, and such property shall be resold by such governmental unit to such former record owner or his assigns, for the full amount applicable to the property under the judgment and decree, with interest thereon at the rate of eight percent (8%) per annum from the date of entry of the judgment and decree of foreclosure to the date of repurchase; together with any delinquent taxes assessed and levied as though it had continued in private ownership. Provided further, however, that no such right of repurchase shall attach to any property subsequent to termination of the redemption period which is held by such municipal corporation, independent school district, public utility district or other local governmental unit for and devoted to any public purpose, authorized by law, and upon which improvements have been constructed pursuant to such public purpose. .We have previously characterized equitable title as the right to demand a conveyance. See Fikes v. First Fed. Sav. & Loan Ass'n of Anchorage, 533 P.2d 251, 258 (Alaska 1975). Arguably, payment of the repurchase price gave rise to such a right in the Mounts' predecessor under state law, despite the municipal ordinance to the contrary. Our previous opinion in this case, 631 P.2d 496 (Alaska 1981) is vacated.

10403989

STATE of Alaska, Appellant, v. Dennis M. RICHARDS, Appellee

State v. Richards

1986-05-30

No. A-1325

47

54

720 P.2d 47

720

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:22:19.089790+00:00

CAP

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

STATE of Alaska, Appellant, v. Dennis M. RICHARDS, Appellee.

STATE of Alaska, Appellant, v. Dennis M. RICHARDS, Appellee. No. A-1325. Court of Appeals of Alaska. May 30, 1986. Cynthia Ducey, Asst. Dist. Atty., Victor C. Krumm, Dist. Atty., Anchorage, and Harold M. Brown, Atty. Gen., Juneau, for appellant. Laurel J. Peterson, Anchorage, for appel-lee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

3773

23084

OPINION COATS, Judge'. Dennis Richards was convicted, following a jury trial, of robbery in the first degree, AS 11.41.500(a)(1). Richards was subject to a presumptive sentence of seven years. See AS 12.55.125(e)(2). Judge Rene Gonzalez found one aggravating factor and one mitigating factor applied to the sentencing. He found that "the defendant knew the offense involved more than one victim," AS 12.55.155(c)(9), but that the "conduct constituting the offense was among the least serious conduct included in the definition of the offense," AS 12.55.155(d)(9). Judge Gonzalez sentenced Richards to seven years with thirty months suspended and placed Richards on probation for five years following his release from confinement. The state appeals, arguing that Judge Gonzalez erred in finding the "least serious" mitigating factor and arguing that the sentence imposed was clearly mistaken. We affirm. At the time of the offense Richards had just turned twenty years old. His only prior offenses consist of several traffic offenses and a misdemeanor offense for eluding a police officer in 1980. This conviction was set aside after Richards completed a suspended imposition of sentence. The current offense involved the armed robbery of a McDonald's restaurant. The weapon that Richards used in committing the robbery was unloaded and inoperable. Factors in mitigation and factors in aggravation must be established by clear and convincing evidence. AS 12.55.155(f). A finding by the trial court that an aggravating or mitigating factor exists is entitled to deference, and we are to reverse the trial court's decision only if we find the decision is clearly erroneous. Juneby v. State, 641 P.2d 823, 834 (Alaska App.1982), modified, on other grounds, 665 P.2d 80 (Alaska App.1983). Judge Gonzalez, in finding the mitigating factor, acknowledged that this was a close case. We conclude that the fact that the weapon that was used was inoperable, and the apparent lack of planning of the robbery on Richards' part, support Judge Gonzalez' decision to find the mitigating factor. We also conclude that the facts of the robbery, the age of the defendant, and his lack of a prior record support the sentence which Judge Gonzalez imposed. We do not find that the sentence was clearly mistaken. AFFIRMED.

10432208

Robert K. BETZ, Appellant, v. CHENA HOT SPRINGS GROUP, A Limited Partnership, Appellee

Betz v. Chena Hot Springs Group

1982-12-23

No. 6057

831

837

657 P.2d 831

657

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:59:25.249702+00:00

CAP

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

Robert K. BETZ, Appellant, v. CHENA HOT SPRINGS GROUP, A Limited Partnership, Appellee.

Robert K. BETZ, Appellant, v. CHENA HOT SPRINGS GROUP, A Limited Partnership, Appellee. No. 6057. Supreme Court of Alaska. Dec. 23, 1982. Robert C. Erwin, Erwin, Smith & Gar-nett, Anchorage, for appellant. Mary A. Nordale, and Millard F. Ingra-ham, Faribanks, for appellee. Before BURKE, C.J., and RABINOWITZ, CONNOR, MATTHEWS and COMPTON, JJ.

3491

21859

OPINION BURKE, Chief Justice. The Chena Hot Springs Group [CHS] owns and manages the Chena Hot Springs Resort. CHS is a limited partnership with three general partners, Mr. Betz, Mr. Kinn, and Mr. Cotting. Pursuant to procedures set out in the amended partnership agreement, Mr. Betz was voted out as a general partner on August 1, 1980. He now seeks to invalidate his forced retirement or to dissolve the partnership and apply a different valuation method in the buyout of his partnership interest. CHS seeks to uphold the retirement, to continue the business, and to enjoin Betz from communicating with its creditors. Betz was personally liable for a significant amount of the debts incurred by CHS, and, as a result, he began communicating with CHS creditors to explain that he was no longer a partner and that the partnership would be dissolved because of his retirement. The original complaint in this matter was initiated by CHS to enjoin Mr. Betz from communicating with its creditors and threatening its business interests. Mr. Betz counterclaimed to dissolve the partnership and to receive his partnership interest. Pending the outcome of the trial, the parties stipulated to a limitation on communication with creditors. On cross motions for summary judgment, the trial court ruled for CHS on all issues and enjoined Mr. Betz from communicating with CHS creditors. This appeal followed. We affirm. I In Alaska, a limited partnership is formed by meeting the prerequisites of AS 32.10.010. The statute requires, among other things, that a limited partnership certificate be recorded before formation is considered complete. Betz first argues that, because the partnership failed to record the certificate, the requirements of AS 32.10.- 080 prevail over the provisions in the partnership agreement. AS 32.10.080 provides that the partnership may not be continued upon the retirement of a general partner unless the right to do so is given in the certificate or a unanimous vote by the limited partners is taken. There being no certificate here and the partnership having taken only a two-thirds vote, Betz argues that his retirement pursuant to the agreement's procedures must be invalidated and the business discontinued. His argument presents us with the question of the effect of a partnership agreement upon the relationship of the partners when a limited partnership certificate is not filed. The purpose of the recording requirement is to provide notice to the firm's creditors of a limited partner's circumscribed liability. Brown v. Brown, 15 Ariz. App. 333, 488 P.2d 689, 695 (Ariz.App.1971); Klein v. Weiss, 284 Md. 36, 395 A.2d 126, 136 (Md.App.1978); Holvey v. Stewart, 265 Or. 242, 509 P.2d 17, 18 (1973). When a certificate is not filed, most courts hold that a general partnership is formed, with each partner being fully liable for debts of the partnership. See, e.g., Peerless Mills, Inc. v. American Telephone & Telegraph Co., 527 F.2d 445, 448-49 (2d Cir.1975); Klein v. Weiss, 395 A.2d 126 at 136; Dwinell's Central Neon v. Cosmopolitan Chinook Hotel, 21 Wash.App. 929, 587 P.2d 191,195 (Wash. App.1978). While a partner's rights vis-a-vis a creditor may be affected, failure to record the certificate does not, in and of itself, alter the rights of a partner vis-a-vis other partners as set out in a partnership agreement. Brown, 488 P.2d at 695; Hoefer v. Hall, 75 N.M. 751, 411 P.2d 230, 233 (N.M.1965), reh'g denied, 75 N.M. 756, 411 P.2d 233 (1966). The failure to record the certificate, then, does not void the continuation requirements of the limited partnership agreement and the partners must be bound by the agreement in their relations among one another. The agreement here provides that upon notice by the general partners of their intent to continue the business, and a two-thirds vote of approval by the limited partners, the business may be continued. Thus, the requirements of AS 32.10.080 need not be followed. The record indicates that the vote to continue the partnership was taken in accordance with the procedures set forth in the partnership agreement. This being the case, the partnership may continue. Betz next argues that the partnership agreement provides that the vote to continue may be taken only when a general partner dies, is incapacitated, or voluntarily retires. Because it does not expressly provide for continuance when a general partner is involuntarily retired, he argues that the partnership must be dissolved upon his retirement. This argument requires that we interpret the original agreement in light of its amendment. The original partnership agreement of August 1,1977 provided that, if a general partner voluntarily retired, the partnership would be dissolved unless the remaining general partners notified the limited partners of their intention to continue the business and two-thirds of the limited partners agreed to continuance. These procedures did not include a means of continuing the business upon involuntary retirement of a general partner. To set out the procedures for involuntary retirement of a general partner and to provide a measure for the outgoing partner's interest, the partnership agreement was amended on December 31, 1978. The amendment "amends and supplants" the 1977 agreement, but unfortunately does not specifically amend the original continuance procedures to provide for a continuance vote upon the involuntary retirement of a general partner. Given such an ambiguity in the agreement, the primary function of judicial interpretation should be to ascertain and give effect to the intent of the parties. Wright v. Vickaryous, 598 P.2d 490, 497 (Alaska 1979); Western Airlines, Inc. v. Lathrop Co., 535 P.2d 1209, 1214 (Alaska 1975). Betz argues that this ambiguity prevents the application of the continuance procedures for voluntary retirement to his involuntary retirement. We disagree. The purpose of the original continuance procedures was to provide a means of continuing the business should a general partner voluntarily retire. The purpose of the amendment was to provide for the involuntary retirement of a general partner. The intent of the parties to permit continuation of the partnership upon involuntary retirement is clear. Had the firm intended automatic dissolution upon a general partner's involuntary retirement, the elaborate buyout provisions in the amendment would have been unnecessary. The provisions comprehend only one intention: that the partnership would continue and the remaining partners would purchase the retiring partner's interest. A court should not interpret an agreement in a manner which would give meaning to one part of an agreement at the cost of annulling another part. McBain v. Pratt, 514 P.2d 823, 828-29 (Alaska 1973). To accept Betz's reasoning here would be to annul the buyout provisions which clearly contemplate continuance of the partnership. Betz also argues that the partnership did not show reasonable cause to retire him and, therefore, the retirement decision should be invalidated. The partnership agreement, as amended, does not require that reasonable cause be shown in a retirement vote. Rather, the agreement permits the majority general partners to involuntarily retire a general partner if they determine it to be in the "best interest" of the firm, provided two-thirds of the limited partners approve the decision. Betz would have us imply a reasonable cause requirement. It is common and acceptable, however, for a partnership to permit retirement without a showing of reasonable cause. Gelder Medical Group v. Webber, 41 N.Y.2d 680, 394 N.Y.S.2d 867, 363 N.E.2d 573, 576 (N.Y.Ct.App.1977). As with other business management decisions, the determination to retire a partner properly lies with the judgment and control of the general partners. Necessarily, such a decision is predicated upon the weighing and balancing of disparate considerations to which the court does not have access. Absent bad faith, breach of a fiduciary duty, or acts contrary to public policy, we will not interfere with the management decisions of the firm. Betz next argues that CHS improperly valued his partnership interest upon his retirement and seeks fair market valuation. We disagree. The amendment to the partnership agreement explicitly provides for the valuation of a partnership interest upon a general partner's involuntary retirement, stating that "[t]he general partners desire to specify the price to be paid a retiring . general partner, and avoid the necessity of further agreement." The method selected does not permit fair market valuation. Rather, the firm used a formula based on original value of the partnership interest, for which a partner took out a promissory note, repaying the partnership by performing management services. Applying this formula, the firm determined Betz's interest to be a paid limited partnership interest worth $55,692.80 which was freely alienable at a potentially higher market value. Betz has provided no valid reason why he should not be bound by these explicit provisions. The valuation method does not appear to be applied in bad faith, has not been shown to have achieved an unconscionable result, and is otherwise not contrary to public policy. See Gelder Medical Group v. Weber, 41 N.Y.2d 680, 394 N.Y.S.2d 867, 363 N.E.2d 573 (N.Y.1977). We therefore decline to interfere with the agreement between the parties and hold that Betz must be bound by the agreement's valuation provisions. II After his involuntary retirement, Betz sought to inform CHS creditors that he was no longer a partner of CHS and that CHS would be dissolved. Ostensibly, his motivation was to prevent personal liability for debts of the firm which he incurred. The trial court enjoined him from making such communications. He argues on appeal that the injunction operates as a prior restraint on his right to free speech and seeks the injunction's removal. We recognize that the injunction may be characterized as a prior restraint on Betz's right to free speech. We also are aware that CHS has a remedy at law by seeking damages if its business interests are actually injured. We conclude, however, that the trial court acted properly. Betz is personally liable on debts he incurred while acting as a general partner and notice to creditors of his retirement is insufficient to cut off liability. Detrio v. United States, 264 F.2d 658, 661 (5th Cir.1959); Martinez v. McGregor-Doniger Inc., 173 A.2d 221, 221-22 (Ct.App.D.C.1961); Texas Co. v. Genetski, 291 Mich. 569, 289 N.W. 257, 258 (Mich.1939). The business is apparently healthy and it is unlikely creditors would need to look to Betz for compensation. And, as decided above, the partnership may be continued and any statement by Betz that his retirement would force dissolution would be false. Looking at the nature of the speech itself, we do not consider it to be speech which is personal, artistic, or political, or speech which involves issues of public concern around which lively debate should take place. We consider the injunction narrowly drawn, as it only prevents communication to creditors regarding liability for debts or the possible dissolution of the partnership. The injunction does not require active supervision of the court or necessitate undue intervention into personal lives of those affected by the injunction. Also, the speech could easily damage the business interests of CHS by negatively affecting its credit rating, its ability to attract investors, and its ability to otherwise carry on its business. A damage remedy based on such injury would necessarily be difficult to measure. To permit Betz to continue with such injurious speech would only encourage further litigation. For these reasons, we conclude that the trial court did not abuse its discretion in granting the injunction. See Douglas v. Beneficial Finance Co. of Anchorage, 469 F.2d 453, 454 (9th Cir.1972); State of Alaska v. Garter, 462 F.Supp. 1155, 1158 (D.C. Alaska 1978); Powell v. City of Anchorage, 536 P.2d 1228, 1229 n. 2 (Alaska 1975). We also conclude that the trial court's grant of summary judgment was correct. There were no genuine issues of material fact to be litigated and CHS was entitled to judgment as a matter of law. See Whaley v. State, 438 P.2d 718, 720 (Alaska 1968). The judgment of the superior court is AFFIRMED. . AS 32.10.010 of Alaska's Uniform Partnership Act provides: (a) Two or more persons desiring to form a limited partnership shall (1)sign and swear to a certificate, which shall state (A) the name of the partnership, (B) the character of the business, (C) the location of the principal place of business, (D) the name and place of residence of each member, general and limited partners being respectively designated, (E) the term for which the partnership is to exist, (F) the amount of cash and a description of and the agreed value of the other property contributed by each limited partner, (G) the additional contributions, if any, agreed to be made by each limited partner and the times at which or events on the happening of which they shall be made, (H) the time, if agreed upon, when the contribution of each limited partner is to be returned, (I) the share of the profits or the other compensation by way of income which each limited partner shall receive by reason of his contribution, (J) the right, if given, of a limited partner to substitute an assignee as contributor in his place, and the terms and conditions of the substitution, (K) the right, if given, of the partners to admit additional limited partners, (L) the right, if given, of one or more of the limited partners to priority over other limited partners, as to contributions or as to compensation by way of income, and the nature of such priority, (M) the right, if given, of the remaining general partner or partners to continue the business on the death, retirement or insanity of a general partner, (N) the right, if given, of a limited partner to demand and receive property other than cash in return for his contribution; (2) file the certificate for record in the office of the recorder for the recording district in which the limited partnership is located. (b) A limited partnership is formed if there is a substantial compliance in good faith with the requirements of (a) of this section. . AS 32.10.080 provides: Rights, powers and liabilities of general partner. A general partner has all the rights and powers and is subject to all the restrictions and liabilities of a partner in a partnership without limited partners, except that without the written consent or ratification of the specific act by all the limited partners, a general partner or all of the general partners may not (7) continue the business with partnership property, on the death, retirement or insanity of a general partner, unless the right so to do is given in the certificate. . Section 13 of the original agreement provided: 13. Death, incapacity, retirement. Upon the death, incapacity or retirement of a general partner, the partnership shall be dissolved and terminated; provided, however, that the remaining partners may agree to continue the partnership in accordance with the following provisions: (d) In the event that a general partner duly gives written notice of his intention to retire, or dies or becomes incapacitated, and there shall remain a general partner or partners, the partnership shall be dissolved and terminated unless (i) the remaining general partner or partners, within ninety days after such notice has been given, or such death or incapacity has occurred, shall have notified the limited partners of the intention of remaining general partner or partners to continue the partnership business, and (ii) two-thirds of the limited partner interests, within thirty days of the receipt of such notice of intention to continue, shall have agreed to such continuance of the business. . The amendment provided, in part: 4. Involuntary retirement [and indemnification]. If a majority of the general partners determines that it is in the best interest of CHS Group that a general partner be required to retire as a general partner, and that determination is supported by the affirmative vote of two-thirds or more of the limited partner interests, that general partner shall retire. If involuntary retirement occurs, the remaining general partners shall, in the manner by which indemnification was given to Michael McCrackin upon his withdrawal as a general partner, indemnify the retired general partner against liabilities existing by reason of his former status as a general partner. . The amendment provided for valuation as follows: Paragraph 13 of the CHS Group Limited Partnership Agreement [the original agreement] covers the contingencies of death, incapacity or retirement of a general partner. Paragraph 13(e)(i) grants to general partners remaining after the death, incapacity or retirement of a general partner the right to purchase the general partner interest of the retiring, deceased or incapacitated general partner "upon such terms and conditions as they and the retiring partner or the legal representative or representatives of the deceased or incapacitated partner may agree." The general partners desire to specify the price to be paid a retiring, deceased or incapacitated general partner, and avoid the necessity of further agreements regarding a subject which is susceptible of present agreement. (a) Death, incapacity or retirement prior to December 31, 1983. If a general partner . retires (either voluntarily or involuntarily) on or before December 31, 1983, that general partner . shall sell to the remaining gener al partners, and those general partners shall purchase (on terms identical to those provided to the deceased, incapacitated or retired general partner), that percentage of the general partner interest of the . retired general partner derived by multiplying the number of months remaining during the period commencing on the first day of the month following the month during which the general partner . was involuntarily retired and terminating on December 31, 1983, by .0794 percent, at a cost of $2,064.00 for each such month. That price is equivalent to the original cost of the general partner interest, namely, $26,000 per one percent general partner interest. If a general partner . retires (either voluntarily or involuntarily) on or before December 31, 1983, and if on the date of . retirement that general partner has pre-paid a portion of the principal balance of his note to the limited partnership, the paid-up general partner interest of that general partner shall be converted to a paid-up limited partner interest equivalent in percentage to such general partner interest. If a general partner . retires (either voluntarily or involuntarily) on or before December 31, 1983, and if on the date of . retirement that general partner has not prepaid any or all of that portion of the principal balance of his note to the limited partnership which he was under the terms of such note entitled to pre-pay, such general partner . shall be entitled to exercise one of the following two options: (1) he may pre-pay all or part of that portion of the unpaid principal balance of his note which on the date of . retirement he was entitled to pre-pay, and the general partner interest thereby pre-paid shall be converted to a paid-up limited partner interest equivalent in percentage to such general partner interest, and the portion of the unpaid principal balance which on the same date the general partner could have pre-paid, but now elects not to prepay, shall be purchased by the remaining general partners, on terms identical to those available to the deceased, incapacitated or retired partner; or (2) he may require the remaining general partners to purchase all of such general partner interest, on terms identical to those available to the deceased, incapacitated or retired partner on the date of . retirement. (c) Time within which options must be exercised. All options available to a[n] . involuntary retired general partner . shall be exercised not later than 60 days following the occurrence of the event which entitles that person to exercise the option. A general partner who retires voluntarily shall exercise his option at the same time as he gives notice of his decision to retire. . The injunction provides: Defendant, Robert K. Betz, is enjoined from communicating, orally or in writing, to creditors and vendors of plaintiff, Chena Hot Springs Group, that Chena Hot Springs Group, a Limited Partnership, is terminated, is or should be winding up, or that Robert K. Betz is no longer liable on any notes or other obligations of Chena Hot Springs Group that he has previously guaranteed [sic] or for which he has previously assumed liability. . Among other things, the superior court enjoined Betz from telling CHS's creditors that the partnership "is or should be winding up." See note 6, supra (emphasis added). We interpret this language as enjoining only communications indicating that the partnership is or soon will be winding up. To the extent that it might be read as prohibiting Betz from expressing his opinion that CHS is morally, if not legally, obligated to dissolve and wind up the partnership, the injunction would violate Betz's right to free speech. The phrase, "or should be," therefore, must be read in the narrow sense that we have given to it.

10429365

In the Disciplinary Matter Involving Peter B. WALTON, Respondent-Attorney

In the Disciplinary Matter Involving Walton

1983-09-30

No. 6289

1078

1093

676 P.2d 1078

676

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:02:06.762414+00:00

CAP

Before BURKE, C.J., RABINOWITZ, MATTHEWS, and COMPTON, JJ., and CARPENETI, Superior Court Judge.

In the Disciplinary Matter Involving Peter B. WALTON, Respondent-Attorney.

In the Disciplinary Matter Involving Peter B. WALTON, Respondent-Attorney. No. 6289. Supreme Court of Alaska. Sept. 30, 1983. As Amended Jan. 3, 1984. Robert H. Wagstaff, Wagstaff, Middleton & Pope, Anchorage, for respondent. John R. Lohff, Lohff & Van Goor, Anchorage, for Alaska Bar Association. Before BURKE, C.J., RABINOWITZ, MATTHEWS, and COMPTON, JJ., and CARPENETI, Superior Court Judge. Carpeneti, Superior Court Judge, sitting by assignment made pursuant to Article IV, Section 16, of the Constitution of Alaska.

9191

56417

OPINION PER CURIAM. This is a disciplinary matter involving attorney Peter B. Walton. Walton allegedly "created" a document, a copy of which he later attached, as an exhibit, to an unverified complaint. This action resulted in the Alaska Bar Association [ABA] initiating disciplinary proceedings against him. The Disciplinary Board of the ABA recommended that Walton be suspended from the practice of law for eighteen months. Walton contends that he has been denied due process of law and that the evidence does not support a finding of any wrongdoing. Walton "created" the document while representing the Aleut Corporation in civil litigation against L. William Childs. Childs had been Aleut's chief executive officer from 1972 until mid-1975, when his relationship with the corporation's board of directors and officers deteriorated. When Childs left Aleut, there was disagreement as to Aleut's obligations under its employment contract with Childs. Aleut filed a declaratory judgment action against Childs to resolve the uncertainty. In early March, 1978, Frank Cowden, Aleut's vice-president and director for litigation, reviewed all of Aleut's outstanding loans. He discovered a March 2, 1973, promissory note, executed by Childs in favor of Aleut for $13,000. The promissory note stated that it was secured by a deed of trust on a specified parcel of real estate. Unable to find a copy of the deed of trust in the corporation's records, Cowden went to the Recorder's Office and obtained a copy of the recorded deed. Although the promissory note referred to a deed of trust, the one found at the Recorder's Office was labelled a second deed of trust and contained a subordination clause. The deed of trust was signed by Childs and notarized on March 2, 1973. The subordination clause stated that the deed was subordinate to another deed of trust held by Alaska Mutual Savings Bank, which secured a $47,000 loan to Childs executed on March 5, 1973, and was recorded on March 6, 1973. Thus, on its face, the deed of trust in favor of Aleut appeared to have been altered, by adding the subordination clause after Childs had signed it. In addition, Childs had not recorded the deed until October 6, 1973. In mid-March 1978, Walton filed a second lawsuit on Aleut's behalf against Childs [Childs II], alleging that the $13,000 loan was illegal. Childs moved to dismiss the complaint. However, so that scheduled depositions could be completed, the parties stipulated that Aleut's opposition to that motion did not have to be filed until April 25, 1978. Childs' deposition began on April 13, 1978. He testified that the $13,000 loan was made pursuant to an understanding that Aleut would furnish the down payment that Childs needed to purchase a home in Anchorage, in consideration for his moving to Alaska to work for the corporation. He stated that he had signed the promissory note March 2, 1973, and that he had executed and delivered a copy of the deed of trust to Aleut on the same date. He further testified that the deed of trust had not been altered after he signed it. On April 21, 1978, Childs' deposition was resumed. Before any questioning began, Childs stated that he wanted to change his earlier statement that the deed of trust had not been altered. He admitted that it had and that he knew of this prior to having it recorded. On April 25, 1975, Aleut, through Walton, filed an amended complaint in Childs II alleging that Childs had defrauded the corporation in obtaining the $13,000 loan. Paragraph 4 of that complaint stated: 4. Accordingly, on 2 March, 1973, for the purpose of financing a down payment in connection with the purchase of a home in Anchorage, Alaska, defendants obtained funds from the plaintiff totaling $13,000, repayment of which they professed would be made according to the terms of a Promissory Note attached hereto marked Exhibit A. At the same time, defendants executed a Deed of Trust for the benefit of the plaintiff Corporation and delivered a copy thereof to the president and secretary of the plaintiff corporation. A copy of that copy is attached hereto marked Exhibit B. The original Deed of Trust was either retained by defendant L. William Childs or, at his discretion, was left with a legal secretary named Susan Abbott, then employed by attorneys for the plaintiff Corporation. On its face, the original Deed of Trust {of which a copy is attached marked Exhibit B) appeared to be a first Deed of Trust, not secondary to any other lien on the subject property. Either by express representations or by his silence, defendant L. William Childs represented to plaintiff and/or led the plaintiff to reasonably believe that the said Deed of Trust, Exhibit B, was a first Deed of Trust and not subordinate to any other lien on the subject property. In fact, however, defendant did not own the real property in which he purported to grant plaintiff a security interest in the form of a Deed of Trust. (Emphasis added). In Paragraph 8, the amended complaint alleged that Childs later materially altered the original deed of trust by adding the word "Second" to the top of the document and by adding the subordination clause. The complaint referred to this allegedly altered deed as Exhibit D. Although the references to Exhibit B in Paragraph 4 suggested that the original deed of trust is a copy (or a copy of a copy) of an existing document signed by Childs, that was not in fact the case. As stated in the opening brief submitted by Walton to this court: Walton created illustrative Exhibit "B" by making a xerox copy of the deed of trust as altered and recorded by Childs. Using this copy, Walton then blanked out what he believed to be those provisions that had been wrongfully added to the instrument after its execution. The blanked out parts consisted of: "(1) recording data; (2) the word 'Second') (3) the subordination clause; (4) and the re cording information on p. 2 (reverse side) of the Deed of trust...Walton "created" this document on April 14, 1978, the day after Childs stated in his deposition that the deed had not been altered, but before Childs later corrected his earlier statement. The amended complaint was served on Childs' attorney, Hugh G. Wade, on April 25, 1978. Although Walton believed that filing the amended complaint rendered the motion to dismiss moot, he filed an opposition to the motion in which the deed of trust he "created" was referred to and attached thereto as Exhibit K. Wade eventually discovered through depositions that Exhibit B was a reconstruction of the deed of trust, and filed a motion for sanction in the superior court. The superior court dismissed the amended complaint in Childs II without prejudice, and referred the matter to the district attorney for possible criminal prosecution under AS 11.30.800 (Preparing False Evidence) and to the ABA for possible disciplinary action. On August 5, 1980, the State Bar Disciplinary Administrator, pursuant to Bar Rule II-15(e), filed a Petition for Formal Hearing with the Disciplinary Board. That petition alleged that Walton's use of Exhibit B in the amended complaint filed in Childs II violated: (1) DR 1-102(A)(4) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation); (2) DR 1-102(A)(5) (engaging in conduct prejudicial to the administration of justice); (3) DR 7-102(A)(l) (asserting a position that will obviously serve merely to harass or maliciously injure another); (4) DR 7-102(A)(3) (concealing or knowingly failing to disclose that which by law is required to be disclosed); (5) DR 7-102(A)(6) (participating in the creation of evidence that is obviously false); (6) DR 7-106(C)(l) (alluding to a matter that has no reasonable basis of support in relevant admissible evidence); and (7) Alaska Bar Rule II — 9 (obstructing the administration of justice). On October 7, 1980, Walton filed his Response to Petition for Formal Hearing. Although in effect admitting that he had created Exhibit B, Walton denied that it was ever intended or represented to be "a true and correct copy of an existing document." He further denied that his conduct was unethical or that he had violated any disciplinary rule. On August 5 and 6, 1981, a hearing was held by a Hearing Committee pursuant to Bar Rule II — 15(f). In its Report, the Hearing Committee concluded that Walton had violated DR 1-102(A)(4) (intentional misrepresentation), DR 1-102(A)(5) (engaging in conduct prejudicial to the administration of justice) and DR 7-102(A)(l) (asserting a position where it is obvious that such would serve merely to harass the opposing party). The Committee's recommended discipline was to publicly censure Walton. After learning of the contents of the Hearing Committee's Report, counsel for Walton and for the ABA agreed not to appeal the findings and recommendations to the Disciplinary Board. They further agreed to waive the submission of briefs and oral argument. On August 28, 1981, the Disciplinary Board issued its Findings of Fact and Recommendations. The Board's findings differed from those of the Hearing Committee. First, in addition to the violations found by the Hearing Committee, the Board found that Walton violated DR 7-102(A)(3) (concealing or knowingly failing to reveal what Walton was legally required to disclose), DR 7-102(A)(6) (participating in the creating of obviously false evidence), DR 7-106(C)(l) (stating a matter before a tribunal that Walton had no reasonable basis to believe was supported by admissible evidence) and Bar Rule II — 9 (obstructing the administration of justice). Second, the Board recommended suspending Walton from the practice of law for eighteen months and that he reimburse the ABA for reasonable costs and attorney's fees, pursuant to Bar Rule II-15(j). On September 8, 1981, Walton moved that the board reconsider its findings and recommendations. The motion was denied and the matter is now before this court. I. Due Process Claims We have previously stated that when an attorney is "subject to suspension or disbarment, the disciplinary proceedings must conform to the requirements of due process under both the federal and Alaska constitutions." In re Robson, 575 P.2d 771, 773-4 (Alaska 1978). Walton contends that he has been denied due process in a number of respects. We will address these assertions individually. A. Commingling of Functions by Rule and Practice The due process clauses of both the federal and Alaska constitutions require that a disciplinary hearing be conducted before an impartial tribunal. McGinnis v. Stevens, 543 P.2d 1221, 1228 (Alaska 1975). Walton first argues that the Alaska Bar Rules allocate responsibility in disciplinary matters in such a way that there is an impermissible commingling of prosecutorial and adjudicatory functions. Rule II — 13(c) provides: The Board shall have the power and duty: (1) To appoint a State Bar Disciplinary Administrator (hereinafter referred to as "Administrator"). (2) To supervise the investigation of all complaints against lawyers and to supervise the Administrator and his or her staff. (3) To retain legal counsel. (4) To hear appeals from the recommendations of Hearing Committees, and to modify the findings of fact, conclusions of law or proposed orders of Hearing Committees, regardless of whether there has been an appeal to the Board, and without regard to the discipline recommended by the Hearing Committee. Rule II-14(a) states that the Administrator serves at the pleasure of the Board, and further provides that the Administrator shall: (7) In his discretion, prosecute complaints and appeals . (10) Keep the Board fully informed about the progress of all matters in his charge. (11) Perform other duties set forth herein or assigned by the Board. According to Walton, the above rules make the Board in effect both prosecutor and judge, which, he claims, is unconstitutional. Due process requires some separation between those persons prosecuting the complaint and those adjudicating it; the prosecutor, who has a "probable partiality," should not be in a position to influence the decision makers. In re Robson, 575 P.2d 771, 774 (Alaska 1978). There may, however, be some combination of these functions within a particular agency. In In Re Cornelius, 520 P.2d 76, 83-4 (Alaska 1974), we stated: There is . no merit to the claim that the combination of functions of the state bar attorney, alleged to be that of complainant, prosecutor and adjudicator, violated due process or AS 44.62.630. The combination of investigative and judicial functions within an agency does not violate due process; a board may make preliminary factual inquiry on its own in order to determine if charges should be filed. Similarly, in In re Hanson, 532 P.2d 303, 306 (Alaska 1975), we held that the rules of the Commission on Judicial Qualifications, which allowed the Commission both to conduct a preliminary investigation and to adjudicate facts, did not violate due process. In light of these precedents, we are not persuaded that the allocation of responsibility under the aforementioned sections of Rule 11-13 and Rule 11-14 violate due process. This does not mean that proceedings conducted pursuant to the above Rules are immune from constitutional attack. In In re Robson, 575 P.2d 771 (Alaska 1978), we held that the presence of Bar Counsel during the Disciplinary Board's deliberations violated the respondent's due process rights, even though Bar Counsel had not participated in the actual prosecution of the case before the hearing committee, or taken an active part in the Board's deliberations. Id. at 773-75. Walton's claim of impropriety in the instant case is directed at the role played by Karen Hunt, the ABA's then President. Bar Rule II-15(a) states that the President shall select members of Hearing Committees, subject to the Board's ratification. In addition, as a member of the Board of Governors, the President is a member of the Disciplinary Board. Bar Rule II-13(a). Hunt, among other things, acknowledged receipt of Walton's Motion for Reconsideration of the Board's findings and recommendations, and denied Walton's Motion for Continuance, an action that was later ratified by the Board. Walton is correct that Hunt's performance of these administrative duties aligned her with the adjudicatory arm of the ABA. The only alleged commingling of roles by Hunt, however, is based on the assertion that she once intended to represent the ABA in the proceedings before this court. Apparently because it was suggested by Walton that her representation of the ABA might pose a conflict of interest, Hunt never appeared on behalf of the ABA. The ABA was represented before this court by John R. Lohff, a private practitioner acting as Bar Counsel. While it may have been poor judgment for Hunt to have even considered representing the ABA before this court, we do not think that her having done so was sufficient to taint the proceedings. Her action certainly falls far short of the impropriety that was held to violate due process in In re Robson, 575 P.2d at 773-775. Accordingly, Walton's due process argument, based upon commingling of functions, fails. B. Non-Appearance Before the Board Walton contends that the Board's departure from the Hearing Committee's findings and recommendations without calling for briefs or oral argument denied him due process. The Bar Rules expressly afforded Walton the right to submit briefs to the Board and to appear before it for oral argument. Bar Rule II — 15(i). Walton chose not to, however, and instead, with counsel for the ABA, waived appeal to the Board as well as oral argument and submission of briefs. Bar Rule II — 13(c)(4) confers upon the Board the power and duty to modify the findings of fact, conclusions of law or proposed orders of Hearing Committees, regardless of whether there was an appeal to the Board, and without regard to the discipline recommended by the Hearing Committee. We believe that the Rules clearly afforded Walton an opportunity to be heard by the Board. Furthermore, since Walton was on notice that the Board might depart from the Hearing Committee's findings and recommendations, whether or not there was an appeal, Walton waived his right to be heard, by entering into the stipulation. C. Membership of Board Before these disciplinary proceedings were initiated, the district attorney sought an indictment against Walton for the same conduct at issue here. The indictment was dismissed because of improprieties occurring before the grand jury. No further indictment was sought. At the time the District Attorney's Office was prosecuting Walton, Elizabeth Kennedy, one of the members of the Disciplinary Board, was employed by the Department of Law in the civil section of the Attorney General's Office. Walton claims that the Disciplinary Board was, therefore, improperly constituted. In support of his argument, Walton cites Canon 3 C(l)(b) of the Code of Judicial Conduct, which states that a judge should recuse himself when "a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter." However, even if the Code of Judicial Conduct applies to members of the Disciplinary Board, we do not believe that the entire Department of Law should be considered one law office, or that all attorneys employed thereby should be considered to be practicing law together for purposes of Canon 3 C(l)(b). Although within the same department, the Attorney General's Office and the District Attorney's Office operate separately, and there is no indication that Kennedy had any part in the prosecution of Walton. Thus, the Disciplinary Board was not improperly constituted. Cf. Keel v. State, 552 P.2d 155 (Alaska 1976) (former assistant district attorney not disqualified from acting as judge in a criminal action). D. Standard of Proof According to Walton, the required standard of proof in this case is proof by "clear and convincing evidence." Proof by a mere preponderance, he argues, amounts to a denial of due process of law. Alaska Bar Rule II — 15(f) provides, partly: "The Administrator shall have the burden . of demonstrating by the preponderance of the evidence that the Respondent has, by act, or omission, committed an offense_" The use of this standard in bar disciplinary matters was approved by this court in In re Robson, 575 P.2d 771, 776-77 (Alaska 1978). Although the respondent in Robson, unlike Walton, did not argue that use of the preponderance standard violated his right to due process, Walton's argument in the present case fails to persuade us that he is entitled to be judged by a different standard. Only one of the cases cited by Walton for the proposition that due process requires proof by clear and convincing evidence before an attorney may be disciplined actually concerned attorney discipline, and that case did not even address the standard of proof issue, much less require proof by clear and convincing evidence. A review of the leading cases and consideration of the important policy issues involved here leave us convinced that requiring proof by a preponderance of the evidence — rather than a higher standard — does not violate Walton's due process rights. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), provides the analytical framework for the burden of proof issue. In Santosky, which concerned termination of parental rights, the Court held that the proper standard of proof could be determined by the "balancing process," 455 U.S. at 754, 102 S.Ct. at 1394, 71 L.Ed.2d at 607, established in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, 33 (1976). In that process the court must weigh the private interest involved in any given proceeding against the public's interest, and determine whether, given the relative strengths of those interests, the risk of error of an incorrect factual decision should be evenly borne or should be placed more heavily upon the public. If, because the individu al's interest is greater than the public's, the risk should be placed more heavily upon the public, then a higher standard of proof must be used. The private interest in the present case is Walton's interest in practicing law, which is his livelihood, and his interest in protecting the integrity of his name. These are weighty interests indeed. The public interest in the present case is the public's interest in a fair and accurate judicial system, which requires that lawyers working within it act with integrity and honesty. This interest, like Walton's, is a substantial one. This court cannot conclude, as Walton asks us to do, that his interest in practicing law and in his reputation is so much more substantial than the public's interest in a fairly and accurately functioning judicial system that we should adopt a standard of proof which puts the risk of an incorrect factual determination on the public. Lawyers are licensed by the state (through this court) to engage in activities affecting the public from which others are excluded. Their licensing includes a certification of fitness to hold the trust and confidence of the public at large, including potential clients as well as potential adversaries. The harm which would be caused by a lawyer acting unethically is substantial. Under all of these circumstances, we are unwilling to hold that the risk of an incorrect factual determination in a bar disciplinary proceeding should be placed primarily on the public. Because there are substantial interest on both sides, the risk of error should be borne equally. That is accomplished by use of the preponderance of the evidence standard. Due process demands no more. Thus, we reject Walton's position that proof by clear and convincing evidence is required as a matter of federal due process. Nor does the authority that he cites persuade us that such is required under the state constitution. II. Fabrication of False Evidence Walton contends that, as a matter of law, he did not create false evidence in violation of DR 7-102(A)(6), since, according to Walton, an unverified complaint is not evidence. The Bar Association contends that the term "evidence," in this context, should not be limited to its technical meaning under the Rules of Evidence. According to the ABA, DR 7-102(A)(6) should apply to any false document concerning a critical aspect of an ongoing lawsuit, produced by manipulations outside the courtroom. Like the ABA, we believe that the term "evidence," in this context, was meant to apply to a broader category of items than those admissible at trial under the technical requirements of the Rules of Evidence. Documents attached to pleadings, although not always admissible evidence, are often relied upon by the court and counsel in matters of importance. Opposing counsel, for example, upon seeing a document such as the one in the case at bar, might well conclude that his client's position was untenable and so advise him, despite the fact that the document was fabricated. The danger is that others will be misled, to their detriment, with a potential for harm as great as if the item had been admissible at trial. III. Evidence of Wrongdoing Where, as here, findings of fact entered by the Disciplinary Board are challenged in this court, "the respondent attorney bears the burden of proof in demonstrating that such findings are erroneous." In re Simpson, 645 P.2d 1223, 1227 (Alaska 1982). And, [t]hough this court has the authority, if not the obligation, to independently review the entire record in disciplinary proceedings, findings of fact made by the Board are nonetheless entitled to great weight. The deference owed to such findings derives from the responsibility to conduct disciplinary proceedings which this court has delegated to the Bar Association. Id. at 1226-1227. Upon review of the entire record, we conclude that the findings of the Board, in all material respects, are supported by the evidence. The findings and recommendations of the Board are AFFIRMED. Respondent Peter B. Walton is ordered suspended from the practice of law for a period of eighteen months, effective 30 days after the publication date of our opinion. Respondent is ordered to comply with the requirements of Rule 11-26, Alaska Bar Rules. MOORE, J., not participating. APPENDIX A BEFORE THE DISCIPLINARY BOARD ALASKA BAR ASSOCIATION In the Disciplinary Matter ) Involving: ) ) PETER B. WALTON, ) ) Respondent-Attorney. ) ) _) No. 78-13 FINDINGS OF FACT AND RECOMMENDATIONS OF THE DISCIPLINARY BOARD OF THE ALASKA BAR ASSOCIATION Based on the evidence received the Board makes the following findings: 1. Respondent PETER B. WALTON is, and at all times relevant to this proceeding has been, an attorney at law admitted to practice in the State of Alaska and a member of the Alaska Bar Association. 2. During an extended period, which included the period of April and May of 1978, the Respondent represented the Aleut Corporation in litigation against L. William Childs and Patricia A. Childs. 3. On April 14 and April 15 of 1978, in the manner described more fully below, the Respondent prepared a document which appeared to be a photocopy of a Deed of Trust executed on March 2, 1973, by L. William Childs and Patricia A. Childs as Trustors to Alaska Title Guaranty Company as Trustee for the benefit of the Aleut Corporation. 4. The document referenced in Finding 3 above was prepared by utilizing a photocopy of a Second Deed of Trust of the same date from which the Respondent deleted, by means of "white-out" or some other white obliterating liquid, the word "Second" from above the caption "Deed of Trust," a subordination provision reflecting that the Deed of Trust was second and subordinated to a Deed of Trust executed for the benefit of Alaska Mutual Savings Bank and all recording data, including graphite marks utilized by the recording office to highlight the seal of the notary public. 5. Preparation of the document reflected extreme care in the utilization of the whiting material, particularly in the vicinity of the notary seal, and in photocopying so that the alterations were not detectable. 6. Respondent attached the fabricated document which appeared to be photocopy of an actual First Deed of Trust as Exhibit B to an "Amended Complaint" and as Exhibit K to a "Memorandum in Opposition of Defendant's Motion to Dismiss or Motion for Summary Judgment" prepared in conjunction with services rendered by the Respondent in the Aleut Corporation v. Childs cases. 7. In the text of the Amended Complaint, the document prepared by the Respondent and attached as Exhibit B was described first as a "copy of that copy" of the Deed of Trust which had been executed and delivered to the Aleut Corporation. The document was then described as "a copy" of "the original Deed of Trust." Exhibit B was referenced numerous times in the Amended Complaint and none of the references was made with ambiguous language that could be construed to advise that the exhibit was a document created for illustrative purposes. 8. The memorandum to which the fabricated document was attached as Exhibit K referred to that exhibit three times, none of which references was in an ambiguous form that might be construed to advise that the document was recreated for illustrative purposes. 9. Following preparation of the fabricated Deed of Trust and its attachment to the referenced pleadings, those pleadings were reviewed by Lee Holen, a law clerk performing services in the Respondent's offices on a contract basis, and after such review Ms. Holen expressed her concern to the Respondent that his description of the document might be misunderstood. That expression of concern was "brushed off" by the Respondent. t 10. On April 25, 1978, copies of the pleadings to which the fabricated Deed of Trust was attached were served upon Hugh Gerald Wade, attorney for L. William Childs, after hours by taxi at his home. The original pleadings were not filed with the court until May 4, 1978. 11. During the deposition of Frank Cowden, Vice-President for the Aleut Corporation, on May 5, 1978, Cowden was asked by Child's attorney on direct examination if he had brought with him any document in compliance with a subpoena. Cowden produced the fabricated Deed of Trust with a communication from Respondent attached to it. This memorandum, prepared April 14, 1978, was produced with an express waiver of the attorney-client privilege, despite opposing Counsel's statement that it need not be produced. It read: Dear Frank: Guess what? Here's the smoking gun. Either Childs falsely testified when he said he gave Lily a copy of his deed of trust on March 2nd, or he falsely testified when he said it hadn't been altered after executed it [sic]. But in that case he will have difficulty explaining why he concealed the fact of its alteration. Cheers, Peter Walton. Nowhere in the memorandum does Respondent refer to the document as a fabrication. 12. During the deposition of Frank Cowden, Vice President for the Aleut Corporation, on May 5, 1978, following evasive testimony on direct examination which made it appear that the fabricated Deed of Trust attached as a copy of the pleadings was or may have been a copy of an actual Deed of Trust in the possession of the Aleut Corporation or the Respondent, the Respondent, through leading questions on cross-examination, elicited testimony to establish that the Deed of Trust attached as Exhibit B to the Amended Complaint and as Exhibit K to the memorandum was fabricated by the Respondent. At no time prior to this cross-examination did Respondent reveal by any oral or written communication that the "copy" of the Deed of Trust attached as an exhibit to various pleadings filed with the Court and delivered to opposing Counsel was, in fact, a fabricated document. 13. Respondent intended that the fabricated document attached to the Amended Complaint as Exhibit B would be understood to be a copy of an existing photocopy of an actual Deed of Trust. This finding is based upon the care exercised by Respondent in the preparation- of the fabricated Deed of Trust, the precise nature of the references in the pleadings referring to the exhibit, the repeated references in the Amended Complaint and the Memorandum in Opposition to the Motion to Dismiss, Respondent's decision to ignore the warnings of a colleague regarding the possible misinterpretation of the references to the document, the text of the "smoking gun" memorandum, Respondent's failure to notify opposing counsel or the court that the document was a fabrication, the findings set forth above and the record herein. 14. The document attached as Exhibit B to the Amended Complaint and Exhibit K to the Memorandum in Opposition to a Motion to Dismiss was not in the nature of an illustrative exhibit designed to demonstrate to the court or opposing counsel the Respondent's interpretation of the evidence or a theory of Respondent's that was supportable by evidence. Based on the above findings the Board recommends the following CONCLUSIONS 1.Respondent violated Disciplinary Rule 1-102(A)(4) of the Code of Professional Responsibility by engaging in conduct involving intentional misrepresentation in that he intentionally misrepresented in pleadings served on opposing counsel and filed with the court that a document attached as an exhibit was a copy of an actual Deed of Trust when in fact it was fabricated by the Respondent. 2. Respondent violated Disciplinary Rule 1-102(A)(5) of the Code of Professional Responsibility by engaging in conduct prejudicial to the administration of justice. 3. Respondent violated Disciplinary Rule 7-102(A)(l) of the Code of Professional Responsibility by asserting a position (i.e., that a copy of an existing copy of an actual Deed of Trust was attached as an exhibit), when it was obvious that such action would serve merely to harass the opposing party. 4. Respondent violated Disciplinary Rule 7-102(A)(3) of the Code of Professional Responsibility by concealing or knowingly failing to disclose that which he is required by law to reveal. 5. Respondent violated Disciplinary Rule 7-102(A)(6) of the Code of Professional Responsibility by participating in the creation of evidence when it was obvious that the evidence was false. 6. Respondent violated Disciplinary Rule 7 — 106(C)(1) of the Code of Professional Responsibility by stating a matter before a tribunal that he had no reasonable basis to believe was supported by admissible evidence. 7. Respondent violated Alaska Bar Rule II — 9. RECOMMENDED DISCIPLINE It is the recommendation of the Disciplinary Board that Respondent be suspended from the practice of law pursuant to Alaska Bar Rule II — 12(b) for a period of eighteen months. The recommendation of the Board is based upon the serious nature of Respondent's misconduct and not upon the number of disciplinary rules his conduct violated. It is the further recommendation of the Board that the Court order that Respondent reimburse the Association for reasonable costs and attorney fees incurred herein pursuant to Bar Rule II-15(j) based upon the statement of costs and attorney fees submitted herewith. RESPECTFULLY SUBMITTED by the Disciplinary Board of the Alaska Bar Association this 28th day of August, 1981. /&/ AJ. Kleinfeld Andrew J. Kleinfeld Chairman /s/ Richard D. Saveli Richard D. Saveli Recorder /s/ Harold M. Brown Harold M. Brown /s/ Mary K. Hughes Mary K. Hughes /s/ Elizabeth Page Kennedy Elizabeth Page Kennedy /s/ William B. Rozell William B. Rozell . In disciplinary matters, the Board of Governors of the Alaska Bar Association is referred to as the "Disciplinary Board." Rule II-13(a), Alaska Bar R. . The Board's findings and recommendations are attached hereto as Appendix "A." . Similar references to Exhibit B are also made in paragraphs 5, 8 and 12 in the amended complaint. . See Memorandum In Opposition To Defendants' Motion to Dismiss, p. 3, 4, 9. It bears noting that the ABA's Petition For Formal Hearing alleges only that Walton should be disciplined for his conduct in connection with the amended complaint (i.e., Exhibit B), and makes no mention of the opposition memorandum filed by Walton (i.e., Exhibit K). . Walton was indicted for violating AS 11.30.-300, but the indictment was subsequently dismissed because of numerous improprieties that occurred during the grand jury proceedings. . Walton briefly indicates that there is an "internal record memoranda file" available to the attorney prosecuting the disciplinary matter, the Bar Association and the Board, but not available to him. Walton's request for access to the file was denied apparently on the grounds that it was privileged work product and because the Bar Rules do not provide for such disclosure. Since the record fails to demonstrate that any member of the Board had access to the file, we elect not to consider this issue. . Walton relies principally on Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979); and Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Santosky concerned termination of parental rights. Addington involved a civil mental commitment. Mathews dealt with termination of disability benefits under the Social Security Act. For the reasons discussed below, these cases do no persuade us that due process requires proof by clear and convincing evidence in attorney discipline cases. . In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 17 (1968). . The risk of error, in any event, should be low. There are extensive procedural protections which surround bar disciplinary proceedings. See, e.g., Alaska Bar Rules II — 15(f), (h), (i), (j), and 11-22. . Walton's argument fails to make clear whether he relies upon the due process guaranteed by the Alaska Constitution or that contained in the Constitution of the United States. The two guarantees are not necessarily the same. South Dakota v. Neville, - U.S. -, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). . In re Hanson, 532 P.2d 303, 308 (Alaska 1975), held that proof by clear and convincing evidence is required in disciplinary proceedings against a judge, for alleged violations of the Code of Judicial Conduct. Today's decision affirms a lesser standard of proof in attorney discipline cases. Hanson, however, was not based on due process grounds. Also, in Hanson the applicable statutes and rules contained no prescribed standard. Id. at 307. Here, there is a prescribed standard: proof by a preponderance of the evidence. Rule 11-15®, Alaska Bar R. In light of today's ruling, we may be required to reevaluate our holding in Hanson if and when we are presented with another case involving disciplinary proceedings against a judge. . The Area Hearing Committee determined as follows: The Petition did not assert that the Respondent committed misconduct arising from submission of Exhibit K to the motion and the Area Hearing Committee took no action in that regard. The Committee determined, nevertheless, that utilization of the re-created document in conjunction with the Memorandum in Opposition to the Motion to Dismiss is properly considered as bearing upon the Respondent's intent. The Board concurs with this determination. . The Board does not consider the actual submission or admissibility of evidence as determinative of this issue. For example, a violation would occur if a lawyer impressed a murder victim's fingerprints on a gun, left the gun at the murder scene, departed and thereafter took no active role. . The Board concludes that an appearance before a tribunal may be in written as well as verbal form.

6985706

Eugene F. BOTTCHER, Appellant, v. STATE of Alaska, Appellee

Bottcher v. State

2011-09-02

No. A-10660

224

227

262 P.3d 224

262

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T19:02:37.665411+00:00

CAP

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

Eugene F. BOTTCHER, Appellant, v. STATE of Alaska, Appellee.

Eugene F. BOTTCHER, Appellant, v. STATE of Alaska, Appellee. No. A-10660. Court of Appeals of Alaska. Sept. 2, 2011. Dave Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Seott Mattern, Assistant District Attorney, J. Michael Gray, District Attorney, Fairbanks, and John J. Burns, Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.

1654

10588

OPINION COATS, Chief Judge. Eugene F. Bottcher entered a plea of no contest to manslaughter, assault in the third degree, and failure to render assistance to an injured person after an accident. Superior Court Judge Douglas L. Blankenship sentenced Bottcher to a composite sentence of twenty-three years with three years suspended. In addition, Judge Blankenship revoked Bottcher's driver's license for life. Bottcher appeals, arguing that his sentence is excessive. We affirm. Factual and procedural background We previously considered Bottcher's sentence in an unpublished decision. In that decision, we set out the facts of the case as follows: On May 28, 2005, outside of Fairbanks, Bottcher drove his vehicle off Goldstream Road and crashed into 13-year-old Saul Stutz, who was on his bicycle waiting to cross at an intersection. Stutz was mortally injured. In addition, Bottcher nearly hit Stutz's nine-year-old brother who was nearby. Bottcher drove away without stopping. Stutz was taken to Fairbanks Memorial Hospital and then transferred to Anchorage. He died about a day later. When the State later obtained a breath test from Bottcher, he had a blood aleohol level of .287. Witnesses who saw Bottcher drinking heavily at local bars before the crash confirmed that Bottcher was intoxicated. Dale Pomraning was driving in the other direction at the seene of the crash and saw Bottcher leave the scene after he ran down Stutz. Pomraning stopped briefly to check on the boys, and then he chased after Bottcher, driving "flat out." Eventually he caught up to Bottcher, who was behind two other vehicles. Pomraning passed Bottcher, pulled in front of him, and eventually stopped him by gradually slowing down. Pomraning then confronted Bottcher, telling Bottcher that he had run down a boy and insisting that Bottcher return to the scene. Bottcher agreed to return, but he again drove further away from the scene. Onee again, Pomraning gave chase, and followed Bottcher for several miles to Bottcher's home. When Pomraning again confronted Bottcher, Bottcher offered a wad of cash to Pomraning, twice telling Pomraning, "Aw, forget it." Bottcher admitted he was drunk, and went inside his home. Pomraning blocked Bottcher's vehicle with his own, walked to a nearby house, and contacted the state troopers. The troopers arrived shortly thereafter and arrested Bottcher. Bottcher had no prior convictions for driving under the influence but had a 40-year history of alcohol dependence. He admitted that he routinely drove when he was intoxicated. The grand jury indicted Bottcher for failing to render assistance to an injured person after an accident, manslaughter, third-degree assault, and interference with official proceedings. The parties reached a plea agreement. Bottcher agreed to plead no contest to failure to render assistance, manslaughter, and third-degree assault, and the State agreed to dismiss the charge of interference with official proceedings and a misdemeanor charge of driving under the influence. There was no agreement regarding the sentence. The original sentencing was conducted by Superior Court Judge Charles Pengilly. In sentencing Bottcher, Judge Pengilly found that Bottcher had acted with extreme indifference to the value of Stutz's life and that Bottcher was a worst offender who deserved the maximum sentence. He imposed a composite sentence of thirty-five years with fifteen years suspended, twenty years to serve. Bottcher appealed his sentence. On appeal, the State conceded that Judge Pengilly had imposed an illegal sentence because he had imposed a sentence that would have been authorized only if the court had found aggravating factors. Judge Pengilly had not found any aggravating factors. We remanded the case to the superior court. Judge Pengilly had retired, so the case was assigned to Superior Court Judge Mark I. Wood. Judge Wood modified Bottcher's sentence by eliminating the suspended time for manslaughter and assault in the third degree, which had been illegally imposed. Other than that, he left Bottcher's sentence unchanged. Bottcher's composite sentence was thus twenty-three years with three years suspended. On appeal, we pointed out that Bottcher's sentence exceeded the sentences that this court had previously approved for motor vehicle manslaughter. We recognized that most of those reported cases were decided before the legislature amended the sentencing law to increase the presumptive sentencing range for a first felony offender convicted of manslaughter from five years to a sentencing range of seven to eleven years. But we concluded that the superior court had not sufficiently justified Bottcher's sentence in light of our prior cases. We remanded the case for reconsideration. The case was assigned to Superior Court Judge Douglas L. Blankenship. In sentencing Bottcher, Judge Blankenship first observed that motor vehicle manslaughter caused by driving under the influence of aleohol occurred with alarming frequency and had tragic consequences. He concluded that the sentencing court needed to send a strong message that this conduct would not be tolerated and would be severely punished. Judge Blankenship found that Bottcher had a long history of alcohol dependence that dated back to Bottcher's adolescence. Dur-img his lifetime, Bottcher had failed to gain control of his alcohol dependence. Judge Blankenship observed that, at the time of the offense, Bottcher had an extremely high blood aleohol level, .287 percent. In spite of this extreme impairment, Bottcher chose to drive. As a result, Botcher struck Saul Stutz and narrowly missed Gabriel Stutz. Judge Blankenship found that the evidence showed that Bottcher was aware that he struck a child, and yet he left the seene. A short time later, Bottcher was twice confronted by Dale Pomraning, who attempted to get him to return to the scene. Instead, Bottcher offered money to Pomraning and went inside his home. Judge Blankenship concluded that Bottcher's actions demonstrated extreme indifference to the value of Saul Stutz's life. He pointed out that Judge Pengilly had reached the same conclusion. Judge Blankenship also considered the sentence in light of our prior case law. Judge Blankenship concluded that these findings justified imposing a term of eleven years of imprisonment for manslaughter, the top of the presumptive range. He then considered the charge of assault in the third degree: the assault on Gabriel Stutz. He observed that the sentencing range was zero to two years. He observed that Bottcher narrowly missed Gabriel, and Gabriel "saw his brother either get hit or shortly after saw the results of [Bottcher's] actions." He concluded that this justified a sentence of two years of imprisonment, the top of the presumptive range. Judge Blankenship then turned to the offense of failure to render assistance to an injured person after an accident. Judge Blankenship observed that this offense is a non-classified felony with a maximum term of ten years of imprisonment. He analogized the offense to a class B felony, which also has a maximum term of ten years of imprison ment. He observed that, if failure to render assistance was a class B felony, Bottcher would be subject to a presumptive range of one to three years. But Judge Blankenship concluded that striking a thirteen-year-old boy and leaving him to die constituted an exceptional cireumstance and was the most serious conduct included in the definition of the offense. He imposed a sentence of ten years with three years suspended. Judge Blankenship imposed all of these sentences consecutively to each other, resulting in a term of imprisonment of twenty-three years with three years suspended (the same term Judge Wood had imposed). Judge Blankenship also revoked Bottcher's license for life. In imposing the lifetime license revocation, he considered Bottcher's life-long alcohol dependence and the cireum-stances of his current offenses. He concluded that Bottcher was a danger to the public when he was driving and that Bottcher's history of alcohol dependence established that there was a substantial risk that he would continue to be a danger after he was released. We conclude that the sentence Judge Blankenship imposed was not clearly mistaken. We recognize that the sentence is at the top of the range of sentences that have previously been imposed for vehicular homicides. But we conclude that Judge Blank enship's findings are supported by the record and support the severe sentence that he imposed. Bottcher was highly intoxicated and yet chose to drive. He struck Saul Stutz and narrowly missed Gabriel Stutz. In spite of the fact that he knew he struck Saul, a young boy of thirteen, Bottcher fled from the scene, leaving Saul to die. In spite of being aggressively pursued by Pomraning, who demanded that Bottcher return to the scene, Bottcher refused to return, offered Pomraning money, and retreated to his residence. Judge Blankenship could properly determine that the extreme facts surrounding this incident justified the sentence he imposed. In revoking Bottcher's driver's license, Judge Blankenship recognized that a lifetime revocation is the kind of punishment reserved for offenders "whose records demonstrate that they never should be allowed to drive a motor vehicle again." He considered Bottcher's long history of alcohol dependence and the seriousness of Bottcher's current offenses in deciding that a lifetime revocation was necessary to protect the public. We conclude that Judge Blankenship's decision was not clearly mistaken. Conclusion The judgment of the superior court is AFFIRMED. . AS 11.41.120(a)(1), AS 11.41.220(a)(1)(A), and AS 28.35.060(c), respectively. . Bottcher v. State, Alaska App. Memorandum Opinion and Judgment No. 5435, 2009 WL 226010 (Jan. 28, 2009). . - Id. at *1 (citations omitted). ._ Id. at *2. 4 . Id. 5 . Id. at *4. . Id. at *5. . Id. at "6. . Id. at *2. . See AS 12.55.155(c)(10). . See AS 28.15.181. . See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). ; See Bottcher, 2009 WL 226010 at *4-5. . Fine v. State, 22 P.3d 20, 24 (Alaska App.2001).

10378977

Michael T. DUNKIN, Appellant, v. STATE of Alaska, Appellee

Dunkin v. State

1991-10-11

No. A-1543

1159

1163

818 P.2d 1159

818

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T19:02:39.964286+00:00

CAP

Before BRYNER, C.J., COATS, J., and ANDREWS, Superior Court Judge.

Michael T. DUNKIN, Appellant, v. STATE of Alaska, Appellee.

Michael T. DUNKIN, Appellant, v. STATE of Alaska, Appellee. No. A-1543. Court of Appeals of Alaska. Oct. 11, 1991. Averil Lerman, Preston, Thorgrimson, Shidler, Gates and Ellis, Anchorage, for appellant. Cynthia M. Hora, Asst. Atty. Gen., Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., COATS, J., and ANDREWS, Superior Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

2550

15299

OPINION COATS, Judge. Michael T. Dunkin was convicted, following a jury trial, of murder in the first degree, an unclassified felony with a maximum sentence of ninety-nine years of imprisonment. AS 11.41.100(a)(1). Superior Court Judge Beverly W. Cutler sentenced Dunkin to eighty-five years of imprisonment, recommending that Dunkin be ineligible for parole until he had served fifty years of his sentence. Dunkin appeals his conviction and sentence. We affirm. Dunkin was convicted of murdering Julius Marshall, a black male employed as an auto mechanic, by shooting him three times in the head and neck at close range. At trial, the state's theory was that Dunkin shot Marshall in an unprovoked attack for racial reasons. The killing occurred in Palmer on May 26, 1985. Dunkin, who was twenty-two years old, drove to Palmer from Anchorage with his brother James Stevens and Stevens' friend William Skinner to watch the races. They drove in Dunkin's green jeep. The jeep had a removable top with the words "Boofer hunter" on it; the top was not on the jeep at the time. They spent the afternoon watching the races and drinking beer. After the races, the three men went four-wheeling in the Knik River area. After about an hour, the jeep got stuck in the river and stalled. Dunkin got a ride to a store where he called for a tow truck. The towing business Dunkin contacted was the Roadrunner Autobody Shop, operated by Julius Marshall. Dunkin returned to the Knik River and waited for the tow truck. Some time later, Dunkin saw Marshall's truck on the other side of the river pulling another truck out of the water. Dunkin was angry that Marshall was assisting someone else first, and went to Marshall to complain. When Marshall finished pulling out the first vehicle, he came across the river to Dunkin's jeep. It took Marshall approximately half an hour to pull the jeep out of the river bed. A group of people gathered to watch Marshall at work. Dunkin talked to one of the spectators, Timothy Dunahee, about how much he thought the job would cost. Dun-kin told Dunahee he had $150. When Du-nahee said he didn't think that would be enough, Dunkin stated that it didn't matter because he was "going to waste the old spook." Dunahee heard Dunkin refer to Marshall as a "boofer," a "nigger" and a "spook." While Dunkin was talking to Du-nahee he had a loaded gun strapped around his waist. Marshall got the jeep unstuck, but it still would not start and it had a flat tire. Dun-kin offered to pay Marshall $150 if he would start the jeep; Marshall towed the jeep to his shop on the Palmer-Wasilla highway. While Marshall was working on the jeep, Dunkin told him that his name was "Tom" and that he worked at Spenard Auto Supply. Neither of these two assertions was true. When Skinner asked Stevens why Dunkin was lying, Stevens said that Dun-kin was going to beat up Marshall. Marshall decided to push start the jeep. Dunkin, Stevens, and Skinner sat in the jeep, while Marshall pushed the jeep with his tow truck. After the jeep started, Dun-kin got out of the jeep to pay Marshall. Skinner saw Dunkin standing next to the tow truck and talking to Marshall. Skinner watched Dunkin pull out the gun and point it at Marshall; Marshall "crunched back" and then smiled as if he thought it was a joke. Dunkin smiled and pulled the trigger three times, firing shots into Marshall's head and neck. Marshall died as the result of these gunshot wounds. Dunkin drove off in the jeep. As they drove away, Dunkin told Skinner not to worry because "[i]t's just a nigger. It's just a boofer." One of Marshall's neighbors found his body and contacted the troopers. Other neighbors told the troopers that they had heard shots and had seen three people in a green jeep speeding away from Marshall's shop after the shots were fired. Trooper Michael Brandenburger stopped Dunkin's jeep on the Glenn Highway near Fort Richardson. The gun was lying on the floorboard between the front seats. Dunkin, Stevens, and Skinner returned to the jeep and were escorted to Palmer by the troopers. During the drive, Dunkin told Stevens and Skinner to tell the troopers the following story:, they went to the raceway, they did not go to the river, and Dunkin shot a couple of rounds in a field after the races. When Skinner first spoke to the troopers he told them the story outlined by Dunkin. Skinner was arrested for first-degree murder on May 28. The next day Skinner told the troopers about the shooting. The charges against Skinner were dropped, and he testified at Dunkin's trial. While in jail, Dunkin spoke to another inmate, K.B., about the murder. On one occasion Dunkin said that he and Marshall had argued about the bill after Marshall got the jeep running; Dunkin said he was mad because a "fucking nigger" was trying to "rip him off." On another occasion Dunkin told K.B. that Marshall was shot while Dunkin was playing with his gun. The defense theory at trial was that the shooting was accidental. At trial, Dunkin testified that he remembered seeing the gun in his hand, and remembered a "boom," but could not see himself shooting anybody. Dunkin stated that at the time he was in Marshall's tow yard, he was "pretty intoxicated." Dunkin's main contention on appeal is that the trial court erred in not making an adequate record of the bench conferences and that his attorney was ineffective in representing him because the attorney did not object to the incomplete record of the bench conferences. Dunkin's trial took place in the superior court in Palmer in October 1985. Shortly before trial, the court system installed hew electronic tape recording equipment in the courthouse. This new system did a poor job of picking up the "bench conferences held during the trial. Dunkin points out that several court rules require the trial court to record its proceedings. See Alaska Civil Rule 75(a); Alaska Administrative Rules 21(a), 35(a) and (c). However, the rules also provide procedures for dealing with gaps in the record. See Alaska Appellate Rule 210(h) and (k). We begin our analysis with Drumbarger v. State, 716 P.2d 6, 16 (Alaska App.1986). In Drumbarger, the defendant claimed that he had been deprived of his right to a full record of the court proceedings when the electronic equipment did not adequately record several bench conferences and other small portions of the trial. This court denied Drumbarger relief, pointing out that Drumbarger made "no specific claim of prejudice with respect. to any particular omitted portion" and that Drumbarger "failed to make any effort to remedy the deficiencies in the record by the steps prescribed in the appellate rules." In the instant case, unlike Drumbarger, Dunkin did make an effort to reconstruct the appellate record. However, the court and counsel were able to reconstruct only a small portion of the bench conferences. The transcript of the bench conferences shows that large portions of the conversations are missing. In arguing for reversal of his conviction, Dunkin does not argue that the court erred in admitting or excluding any particular evidence. Rather, he argues that because neither the court nor his attorney assured that there was an adequate record of the bench conferences, he was deprived of his ability to prepare and bring a meaningful appeal. As an alternative, Dunkin argues that if this court does not find that the gaps in the record are per se prejudicial, we should place the burden of proof on the state to show that Dunkin was not prejudiced by the gaps in the record. In arguing that we should find that the gaps in the record were per se prejudicial, Dunkin cites United States v. Selva, 559 F.2d 1303 (5th Cir.1977). In Selva, the court reporter became ill and was unable to stenographically transcribe counsels' closing arguments. The court • reporter at tempted to tape the arguments, but the tape recorder malfunctioned. Selva obtained new counsel for his appeal. The Selva court held: When, as here, a criminal defendant is represented on appeal by counsel other than the attorney at trial, the absence of a substantial and significant portion of the record, even absent any showing of specific prejudice or error, is sufficient to mandate reversal. Id. at 1306 (footnote omitted). However, the Selva court emphasized that its holding only applied to "significant omissions." Id. at 1306 n. 5. Dunkin urges us to adopt the Selva rule. In the first place, the Selva rule appears to be a minority rule. See United States v. Antoine, 906 F.2d 1379, 1381 (9th Cir.1990); United States v. Gallo, 763 F.2d 1504, 1530-31 (6th Cir.1985); State v. DeLeon, 127 Wis.2d 74, 377 N.W.2d 635, 637 n. 2 (App.1985); Cole v. United States, 478 A.2d 277, 287 n. 15 (D.C.App.1984); State v. Vitale, 190 Conn. 219, 460 A.2d 961, 964-65 (1983); State v. Rougemont, 340 N.W.2d 47, 50-51 (N.D.1983). In the second place, even if we apply the Selva rule, we do not believe that Dunkin prevails. Dunkin's appellate counsel has a complete record of the trial except the bench conferences. She therefore has a record of what transpired before and after the bench conferences. She also has a record of what evidence went to the jury. Under these circumstances, we believe it likely that the Selva court would conclude that Dunkin was not missing a "substantial and significant portion of the record." Therefore, we conclude that Dunkin has not shown grounds for relief under the Selva standard. We also conclude that Dunkin has not made any showing that he was prejudiced when his counsel failed to object to the court's failure to make a complete record of the bench conference. See Risher v. State, 523 P.2d 421, 425 (Alaska 1974) (in order to establish ineffective assistance of counsel, defendant must show by a preponderance of the evidence that trial counsel failed to perform at least as well as a lawyer with ordinary training and skill in the criminal law and must create a reasonable doubt whether counsel's conduct contributed to the conviction). Dunkin next suggests that certain statements which the prosecutor made to the jury constituted plain error. During jury voir dire, the prosecutor asked five prospective jurors whether, if race were an issue in the case, the juror could give the victim, Marshall, a fair trial. The final time the prosecutor asked this question, he stated, "Do you promise me that you would give Julius Marshall, a black man, a fair trial, as well as the defendant, a fair trial?" At this point, defense counsel asked to approach the bench; Judge Cutler sustained the defense objection to this question. Following this conference, the prosecutor rephrased the question to "Do you feel that you can give the state as well as the defendant a fair trial in this case knowing that Julius Marshall is a black man?" Dunkin did not ask the court to take any further action. Later in the trial, at the end of his closing argument, the prosecutor stated that "Julius Marshall has a right that justice be done." Dunkin did not object to this statement. On appeal, Dunkin contends that the prosecutor's admonitions to give Marshall a fair trial were seriously prejudicial. He contends the statement the prosecutor made in closing argument was a call to the jury to avenge the death of Marshall. Dunkin did not request a curative instruction during voir dire, nor did he object to the prosecutor's statement during closing argument. Therefore, in reviewing these issues this court must apply the plain error standard of review. Alaska Criminal Rule 47(b). In order to establish plain error, Dunkin must prove that the error is: (1) so obvious that it must have been apparent to a competent judge and a competent lawyer even without an objection and (2) so substantially prejudicial that failing to correct it on appeal would perpetuate a miscarriage of justice. Potts v. State, 712 P.2d 385, 390 (Alaska App.1985). Dunkin points out that Marshall was not on trial and argues that the statements which the prosecutor made would tend to inflame the jurors' emotions because of the evidence that this was a racially motivated killing. However, the state could properly inquire of the jurors whether they would be racially prejudiced against Marshall. The trial court promptly responded to Dunkin's objections, and Dun-kin never requested that the trial judge take further action. We do not believe there was sufficient danger of prejudice from the prosecutor's questions and statements that the trial court was required to take further action on its own without objection. We do not find plain error. Dunkin next argues that Judge Cutler erred in recommending that the parole board not parole Dunkin until he had served fifty years of imprisonment. Dun-kin points to the language of Spencer v. State, 642 P.2d 1371, 1377 (Alaska App.1982), where we stated: Where an extended parole eligibility term is imposed, the court must specifically address the issue and set out with particularity its reasons for concluding that the parole eligibility term prescribed by statute would be insufficient to protect the public and insure the defendant's reformation. However, in Spencer we were referring to a situation where the court has legally restricted the parole board from acting. AS 12.55.115. Judge Cutler merely made a recommendation; she did not legally restrict Dunkin's parole. The written judgment specifically provides that Dunkin is eligible for parole after serving the mandatory minimum period of time required by statute. Judge Cutler's recommendation is not binding on the parole board. See Shagloak v. State, 582 P.2d 1034, 1038 (Alaska 1978). As we pointed out in Lawrence v. State, 764 P.2d 318, 321-22 (Alaska App.1988), "[pjarole authorities should be better situated to judge [the defendant's] prospects for parole because they will have the opportunity to evaluate [the defendant's potential for parole] at a future time, after he has had an opportunity to respond to the effects of rehabilitation programs." Judge Cutler's recommendation does not prevent the parole board from exercising its best judgment at that future time. In making the recommendation, Judge Cutler emphasized the seriousness of Dun-kin's offense, which she found was a premeditated racial killing. She fully considered Dunkin's prior favorable record, but considered his prospects for rehabilitation to be guarded because of the serious nature of the offense and Dunkin's failure to accept full responsibility for the crime. Judge Cutler also emphasized the need to deter similar offenses. We believe that the reasons Judge Cutler gave are sufficient to justify her recommendation. We conclude that the sentence was not clearly mistaken. The conviction and sentence are AFFIRMED. MANNHEIMER, J., not participating. . "Boofer" is a derogatory term for a black person.

6985678

ALASKA EXCHANGE CARRIERS ASSOCIATION, INC., Appellant, v. REGULATORY COMMISSION OF ALASKA, General Communications, Inc., d/b/a General Communications, Corp., d/b/a GCI, and Alascom, Inc., d/b/a AT & T ALASCOM, Appellees

Alaska Exchange Carriers Ass'n v. Regulatory Commission

2011-10-07

No. S-13528

204

217

262 P.3d 204

262

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T19:02:37.665411+00:00

CAP

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

ALASKA EXCHANGE CARRIERS ASSOCIATION, INC., Appellant, v. REGULATORY COMMISSION OF ALASKA, General Communications, Inc., d/b/a General Communications, Corp., d/b/a GCI, and Alascom, Inc., d/b/a AT & T ALASCOM, Appellees.

ALASKA EXCHANGE CARRIERS ASSOCIATION, INC., Appellant, v. REGULATORY COMMISSION OF ALASKA, General Communications, Inc., d/b/a General Communications, Corp., d/b/a GCI, and Alascom, Inc., d/b/a AT & T ALASCOM, Appellees. No. S-13528. Supreme Court of Alaska. Oct. 7, 2011. Rehearing Denied Nov. 3, 2011. Robin O. Breña and Anthony S. Guerriero, Breña, Bell & Clarkson, P.C., Anchorage, for Appellant. Robert E. Stoller, Senior Assistant Attorney General, Stuart W. Goering, Assistant Attorney General, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for Ap-pellee Regulatory Commission of Alaska. James R. Jackson and Martin M. Wein-stein, Anchorage, for Appellee General Communications, Inc. d/b/a GCI. Notice of non-participation filed by Robert A. Royce, Ashburn & Mason P.C., Anchorage, for Appellee Alascom, Inc., d/b/a AT & T Alascom. Before: CARPENETI, Chief Justice, FABE, WINFREE, CHRISTEN, and STOWERS, Justices.

7894

50734

OPINION CHRISTEN, Justice. I. INTRODUCTION Six weeks after the Regulatory Commission of Alaska approved the 2007 Access Charge Rates long distance telephone companies pay to local telephone companies, an association of local telephone companies realized that five of the rates the Regulatory Commission approved were based upon an erroneous spreadsheet the association included in its rate filings. The association requested that the Regulatory Commission correct the rates. The Regulatory Commission corrected the rates prospectively, but concluded retrospective application was barred by this court's case law on retroactive rate-making. The superior court agreed that retrospective application of the adjusted rates was impermissible, and the association appealed. We reaffirm our decision in Matanuska Electric Association, Inc. v. Chugach Electric Association, Inc. prohibiting retroactive ratemaking in "second look" cases, but hold that the Regulatory Commission has the authority to implement corrections of some procedural mistakes starting when notice of a mistake is given. We remand to the Regulatory Commission to determine the type of error that occurred in this case and whether the error should be corrected retrospectively. II. FACTS AND PROCEEDINGS The Regulatory Commission of Alaska (RCA) regulates public utilities and pipeline carriers throughout the state. The RCA "certifies] qualified providers of public utility and pipeline services and [ ] ensure[s] that they provide safe and adequate services and facilities at just and reasonable rates, terms, and conditions." The RCA is composed of five full-time commissioners serving six-year terms who are appointed by the governor and confirmed by the state legislature. The RCA also has staff that "includes Administrative Law Judges, engineers, financial analysts, telecommunications specialists, tariff analysts, consumer protection officers, paralegals, administrative and support staff." Generally, when a utility requests a change in rates or services, the RCA provides notice to the public of the proposal and allows a period of 80 days for comments. Notice may be provided as an advertisement in a local newspaper; sometimes the utilities will provide information in a flyer included with bills sent to consumers. The RCA also engages in a quasi-judicial process for purposes of assessing rate proposals-hearing testimony from experts, witnesses, the parties, and other interested individuals. The RCA can either approve or disapprove of the utility's proposal at the end of this process. A. Background On Access Charges In Alaska,. The Alaska Exchange Carriers Association (AECA) is an association of non-competing local telephone companies, known as local exchange carriers. AECA is authorized by the legislature and mandated by the RCA to represent the interests of local exchange carriers when the RCA sets the access charges that long distance telephone companies pay for the use of local telephone systems to complete long distance telephone calls. Prior to the development of the access charge system, individual local exchange carriers negotiated with individual long distance telephone companies to establish payment agreements for the use of local telephone systems for long distance telephone calls. With the development of the access charge system, the RCA began regulating the rates for these services through a complex administrative process that balances the interests of AECA, long distance telephone companies, and rate payers. The resulting access charge system was intended to create a more uniform, transparent, and efficient system for dividing costs between local and long distance carriers. The access charge rates payable by long distance carriers for access to the facilities of AECA's pooling local exchange carriers are determined on an annual basis in accordance with applicable RCA regulations. Specifically, 3 Alaska Administrative Code (AAC) 48,440 (2006) provides: Access charges shall be assessed for use of local exchange telephone utility facilities by the providers of intrastate interex-change _ telecommunications _ services. Those charges must be determined, assessed, and collected, and revenues from those charges must be distributed, in accordance with [the RCA's] rules as set out in the Alaska Intrastate Interexchange Access Charge Manual.... The Manual sets forth a very specific and deliberate annual process pursuant to which access charges of the pooling local exchange carriers are "determined, assessed, and collected," as well as the process by which the revenues from charges are "distributed," as mandated in 3 AAC 48.440. The Manual dictates that this annual process, beginning no later than October 1 and concluding by April 1 of the following year, is governed by a filing schedule which is established by RCA order. The two primary elements of AECA's pooled access charge rates are the collective revenue requirement and demand for AECA's pooling member local exchange carriers. The revenue requirement is the total of the various costs incurred by a local exchange carrier during the course of a recent 12-month period to create and maintain the lines of communication between long distance carriers and the consumer. The demand element is the number of minutes during the course of that same 12-month historic period that long distance carriers accessed the facilities of the pooling local exchange carriers. These actual historical revenue and demand elements are adjusted to reflect what are known - as - "known - and - measurable changes." Adjustments are made to convert the actual historical revenue requirement and demand figures into projections of what can reasonably be expected in the future. Interested parties, such as GCI and AT & T Alascom, are permitted to participate in the annual access charge proceedings and are thereby given the opportunity to test the revenue requirement and demand estimates advanced by AECA and its members. New pooled access charge rates are presented to the RCA by AECA in the form of tariff advice letters, along with underlying work papers and calculations that provide specific information on the derivation of such rates. B. The 2007 Access Charge Proceedings. The 2007 Access Charge proceedings began with AECA, GCI, and AT & T Alascom filing a Joint Petition to Adopt the Access Charge Filing Schedule with the RCA. The Joint Petition was adopted by the RCA on September 26, 2006. Subsequently, AECA, GCI, and AT & T Alascom reached stipulations as to: (1) the revenue requirements for AECA and its members; and (2) the demand for access minutes. These stipulations were accepted by the RCA. The RCA also accepted a stipulation by AECA, GCI, and AT & T Alascom that the 2007 Access Charges would be effective on April 1, 2007. Following the RCA's acceptance of the revenue requirement and demand stipulations, AECA submitted "Tariff Advice Letter No. 55-999" (TA55-999) to the RCA on May 2, 2007, with copies sent to GCI and AT & T Alascom. - Incorporated into TA55-999 was the "2007 Rate Development Workpapers" submitted by AECA, setting forth calculations for the 2007 Access Rate Charges. The workpapers contain a series of spreadsheets apportioning total revenue requirements among members and dividing the overall revenue requirements into the requisite rate elements. The RCA approved TA55-999 on June 21, 2007, with an effective date of April 1, 2007 pursuant to the parties' stipulation. The RCA closed the proceedings on the 2007 Access Charge rates on June 29, 2007. In mid-August 2007, approximately six weeks after the RCA had closed the 2007 Access Charge proceedings, AECA discovered an error in the spreadsheets it had filed with the RCA as support for its 2007 Access Charges. The error was the result of a failure to link spreadsheet cells correctly. AECA contends that three steps in the rate calculation were affected. Five rates were affected by the error; some were increased and some were decreased. The error resulted in the dial equipment minutes (DEM) subsidy being improperly incorporated into the calculations. The net result was a set of rates that caused $677,503.42 in underbilling for the year 2007. On August 20, 2007, AECA submitted a "Supplemental Filing to Tariff Advice Letter No. 55-999" to the RCA. This letter provided revised calculations and requested that the RCA modify certain 2007 rates accordingly. The RCA responded by requiring AECA to submit its request as a new tariff advice letter, rather than as a supplement to TA5S5-999. The next day, AECA submitted "Tariff Advice Letter No. 57-999" (TA5T-999). On October 10, 2007, the RCA issued public notice of TA5T-999 setting forth the changes AECA proposed to TA55-999 and inviting public comment. AECA provided a more detailed explanation of the error as well as the impact of the under-billing in response to a request for additional information from the RCA. GCI responded to the request for public comment with a written argument that retroactive application of the corrected rates should not be permitted under this court's decision in Matanuska Electric Association, Inc. v. Chugach Electric Association, Inc. AECA submitted comments arguing to the contrary. On November 2, 2007, the RCA issued an order approving the use of the corrected rates prospectively, but holding open for further investigation the question whether the rates should be applied retrospectively to April 1, 2007. AECA and GCI both filed motions for summary disposition, agreeing that no genuine issue of material fact existed, but disagreeing about whether retrospective application of the new rate was permissible under Alaska law. The RCA granted GCI's motion on May 16, 2008, concluding that: We do not find . that the unintended error contained in TA55-Q99 is merely ministerial and that it might thereby allow the new rate proposed in TA5T-999 to be changed retroactively. We deny retroactive application of TA5T-999 to April 1, 2007. To act otherwise would violate the principle of retroactive ratemaking articulated by the Alaska Supreme Court. AECA's Petition for Reconsideration, which GCI opposed, was denied by the RCA. AECA appealed the RCA's decision to the superior court. Following full briefing by the parties, oral argument was held on April 8, 2009. The superior court denied AECA's administrative appeal on April 16, 2009, concluding "[a] thorough reading of case law and the Alaska statutes that set forth the procedures to be followed in establishing new, revised tariffs supports the RCA's holdings." The superior court concluded that TA5T-999 "may be [applied] prospective[ly] only" because "it is clear that the procedures involved here . [are] subject to the doctrine of retroactive rate-making." III, STANDARD OF REVIEW When the superior court acts as an intermediate court of appeal, we independently scrutinize directly the merits of the administrative determination. For questions of law where no agency expertise is involved, we apply the "substitution of judgment" test. When a matter involves agen cy expertise we apply a "reasonable basis" test, giving deference to the agency's specialized knowledge and expertise. IV. DISCUSSION The first issue in this case is whether the RCA properly relied on the doctrine of retroactive ratemaking when it decided that the corrected 2007 Access Charge could only be applied prospectively following its November 2007 order approving the corrected rate. AECA concedes that retroactive ratemaking is not permitted in Alaska, but argues that correcting the error in its worksheet does not constitute "retroactive ratemaking." Alternatively, AECA argues that even if the doe-trine of retroactive ratemaking applies, the corrected rate should nonetheless be implemented: (1) retrospectively to April 1, 2007 because of the parties' prior stipulations; or (2) at least to August 21, 2007 when AECA initially requested the corrected rate. GCI argues that our precedent in Matanuske Electric Association, Inc. v. Chugach Electric Association, Inc. directly controls this case and prohibits retroactive application of the corrected 2007 Access Charge. The RCA similarly argues that "in view of this Court's articulation of the policies underlying, and the rationale for, the prohibition against retroactive ratemaking, . the multiple retroactive rate adjustments sought by AECA must be precluded." The RCA alternatively argues that even if we decide that an exception to the retroactive ratemaking rule applies to this case, our court "should merely authorize-but not compel-{the RCA] to grant the relief sought by ABCA," and remand the case back to the RCA to determine how it should exercise its discretion. A. We Affirm Our Holding In Mate-nuska Electric Association, Inc. v. Chugach Electric Association, Inc. In Matanuska Electric Association, Inc. v. Chugach Electric Association, Inc., the parties did not dispute the impermissibility of retroactive ratemaking under Alaska law; they disputed whether this prohibition applied to the facts of their case. Chugach Electric Association (Chugach) sold wholesale electricity to Matanuska Electric Association (MEA). The case dealt with "the use of an estimated generation and transmission system energy loss in Chugach's fuel surcharge filings." In other words, Chugach used a "line loss" factor to adjust its base rate to reflect the amount of energy lost in the process of generating electricity and transmitting it across power lines. The amount of energy lost through generation and transmission varies and cannot always be accurately predicted. To compensate Chu-gach for this loss, line loss factors were computed in a fuel surcharge. But because the line loss fluctuates, the fuel surcharge was an estimate and it was acknowledged that "the amount collected might fall short or exeeed the actual cost." Starting in "the mid-1980s, Chugach [] used a line loss factor of 5.219% in its rate filings for wholesale customers." But in 1997 "Chugach and MEA discovered a discrepancy." The 5.219% loss claimed by Chugach was substantially higher than "the actual line loss experienced by Chugach in 1995, 1996, and 1997." MEA argued that because Chugach submitted an inaccurate estimate of the line loss factor, MEA was entitled to a refund based on the difference between the inaccurate line loss factor and the accurate one. Chugach argued that the RCA could only adjust its rates prospectively-any retrospective application would violate the rule against retroactive ratemaking. The RCA agreed with MEA and entered an order requiring Chu-gach to recalculate fuel surcharges for the years 1995 through 1997 using actual line loss factors and refund the difference between the original and revised surcharge. But the superior court reversed the administrative ruling, and our court affirmed the superior court's decision. Setting out the contours of the general prohibition against retroactive ratemaking, our decision in Mata-nuska explained: A fundamental rule of ratemaking is that rates are exclusively prospective in nature. One purpose of having such a rule is a consumer's right to rely on rates set by [the RCA]. Some reliability, of course, is essential to the public utility regulatory system. If commissions could retroactive, ly change rates willy-nilly, and ratepayers' bills and utility revenues were continually subject to large fluctuations, serious questions would arise concerning the legitimacy of the ratemaking process. Thus, the rule is critical for a utility to plan its finances. Other purposes for prohibiting retroactive rates include investor confidence, utility credit rating, and the integrity of service. And retroactivity, even where permissible, is not favored, except upon the clearest mandate.[ ] MEA argued that the fuel surcharges at issue in Chugach's rate were distinguishable from regular RCA-made rates, and therefore were not subject to the prohibition against retroactive ratemaking. In addressing this argument, we considered what type of review the RCA provided for "fuel surcharge filings in Alaska and whether such review is adequate to consider a fuel surcharge a rate, applicable to the prohibition against retroactive ratemaking." We concluded that the fuel surcharge constituted a RCA-made rate subject to the general rule against retrogc-tive ratemaking because: (1) fuel surcharges in Alaska receive a documentary review; and (2) the RCA's review of Chugach's fuel surcharge was substantial enough to constitute a rate. We deemed it relevant that the filings for fuel surcharges were subject to the same statutory notice and review requirements as the utility's base rates. MEA and the RCA characterized the RCA's review of fuel surcharge filings as "purely ministerial," but we disagreed, finding that it was within the RCA's power to question and investigate the validity and accuracy of the line loss factors Chugach submitted, not to simply accept them as presented.! And we concluded that requiring Chugach to repay past rates based on the inaccuracy of its line loss factor estimate would violate the rule against retroactive ratemaking: The law supports this approach. The essential principle of the rule against retroactive ratemaking is that when the estimates prove imaccurate and costs are higher or lower than predicted, the previously set rates cannot be changed to correct for the error; the only step that [the RCA] can take is to prospectively revise rates in an effort to set more appropriate ones.... Thus, the time for challenging a fuel adjustment rate is before the rate is approved by the Commission.[ ] The primary rationale articulated in Mata-nuska for prohibiting retroactive ratemaking is that inaccurate estimates are not adequate justification for imposing retroactively altered rates based on more accurate after-the-fact data about what the rates should have been. The goals of the rule against retroactive ratemaking are to ensure that utilities engage in efficient and effective ratemaking to produce estimates that accurately represent their actual costs, and to protect parties who rely on rates approved by the RCA. The rule creates an incentive for accurate estimates in the ratemaking process; without it, utilities would have less incentive to seruti-nize estimates because they could alter a rate if more information became available after the fact. B. The Rationale Supporting The Rule Against Retroactive Ratemaking Outlined In Matanuska Electric Association, Inc. v. Chugach Electric Association, Inc. Does Not Apply To All Mistakes. 1. The error in Matanuska Electric Association, Inc. v. Chugach Electric Association, Inc. was an inaccurate projection. In Matanuska, we extensively cited a 1991 law review article examining how various jurisdictions have applied the rule against retroactive ratemaking in different con-texts. All parties to this appeal cite at length to this article; the superior court also relied on our previous discussion of the article in reaching its decision. The article, The Ghost of Regulation Past: Current Applications of the Rule Against Retroactive Rate-making in Public Utility Proceedings, forms the foundation of the parties' discussion of retroactive ratemaking and the distinction between "second look" and "procedural mistake" cases. AECA argues that Matanuska dealt with altering a rate after a "second look" at an inaccurate estimate, that this case does not concern a "second look" at a rate derived from an inaccurate estimate, and that this is not a case of retroactive ratemaking. GCI argues that in Matanuska, we "rejected the line of cases in other jurisdictions that create a general exception to the rule against retroactive ratemaking for fuel adjustment clauses, and, instead, placed Alaska firmly in the camp of jurisdictions that strictly adhere to the rule prohibiting retroactive ratemaking." The superior court agreed with GCI, viewing our holding in Matanuska as "a strict interpretation of the doctrine" prohibiting retroactive ratemaking. The issue in Matanuska was specific: whether the RCA could retroactively replace an inaccurately estimated line loss factor for a more accurate after-the-fact calculation that reflected Chugach's actual experience. The controversy in Matanuska is further distinguishable from the facts of this case because Chugach's erroneous line loss factor was not discovered for several years. As explained, our concern in Matanuska was the inaccurate prediction of Chugaech's future line loss factor, because "the essential principle of the rule against retroactive ratemaking is that when the estimates prove inaccurate and costs are higher or lower than predicted, the previously set rates cannot be changed to correct for the error." Our holding in Matanuska was consistent with Krieger's position that "the rule [against retroactive rate-making] requires that when determining each of the terms of the revenue requirement formula, when calculating the amount of revenue to be collected under proposed rates, or when allocating rates between classes or within a class, [the RCA] cannot adjust for past losses or gains to either the utility, consumers, or particular classes of consumers." Matamuska does not reflect an absolute bar against the adoption of any corrected rates on a retrospective basis, as GCI argues; the question presented in Matanus-ka was limited to a straightforward application of the doctrine in a case involving an incorrect projection of future costs. Matanuska represents a "second look" case where the prohibition against retroactive ratemaking clearly applies. The facts of AECA's case are different. As Krieger explains, "a rigid interpretation of the rule against retroactive ratemaking would prohibit any modification by the commission of a prior rate order that affects past utility gains or losses, [but] courts have allowed such changes in situations [where] the commission is remedying procedural mistakes." Examples of "procedural" or clerical mistakes include those in Mike Little Gas Co. v. Public Service Commission, where a gas company applied for a rate of "$8.5752 for two Mecfs of natural gas" and the agency issued an order incorrectly setting the rate at "$3.5752 per Mef for the first two Mecf's." This error would have had a significant impact on the revenue collected by the utility-but the court recognized it was essentially a typographical error, and it was an error made by the Commission itself. Under these cireumstances, the Commission was permitted to correct the error. The rate correction in Mike Little was entirely consistent with the underlying reasons for the rule against retroactive ratemaking: (1) the court found the parties were not justified in relying on the incorrect order issued just days earlier; (2) permitting the correction of the order did not encourage sloppy or inefficient estimates by the utility; and (8) the correction was not shown to implicate any of the other harms associated with retroactive rate-making. Other jurisdictions have similarly recognized a category of "procedural" errors, at least some of which may be retroactively remedied. In Illinois Power Co. v. Ilinois Commerce Commission, the Illinois Court of Appeals held: If a mere mathematical error resulted in a double reduction for the disallowed deferred charges, the mistake should be remedied. If, however, the calculation was designed to account for errors . on a prospective basis, then what [Illinois Power] perceives as a ministerial error was in fact an informed policy decision and should not be disturbed.[ ] The Indiana court of appeals reached a similar conclusion in its unpublished decision Indiana Office of Utility Consumer Counselor v. Duke Emergy Indiana, Inc., holding that where an energy company, "in previously mis-stating its [construction cost] balances ., failed to comply with FERC accounting guidelines," a subsequent accounting correction did not create "the type of situation that should be controlled by the rule against retroactive - ratemaking." The court explained: "We also fail to perceive how permitting Duke to make this accounting correction would negatively affect utility planning, investor confidence, utility credit rating, or integrity of service [Le., the factors identified by the Indiana court as underlying the purposes of the rule against retroactive ratemaking]." An example of a mistake that was considered substantive and was not permitted to be corrected occurred in General Motors Corp. v. Public Service Commission. There, a plant producing synthetic natural gas closed two months after the Public Service Commission issued a new rate. Michigan's Attorney General, as an intervenor, sought to have the Commission retroactively apply a new rate based on this change in cireumstances (the mothballing of the plant). The court concluded that the change in cireumstances did not present a justifiable reason to alter the rates retroactively for the two months the plant was operational. This result is consistent with the rule against retroactive ratemaking because the error in General Motors was in establishing a rate based on a projection, ultimately proven wrong, that the plant would remain open. General Motors represents a "second look" error where a change in anticipated cireumstances was used as a justification for altering a rate; only in hindsight did the rate appear to be incorrect. As Krieger explains, "the rule against retroactive ratemaking encourages efficiency because the utility will endeavor to increase profits under the approved rate. If the utility knows that it can recoup past losses re-troactiv{ely] or that ratepayers can obtain refunds of excess profits, it will have little or no incentive to operate efficiently." Other types of mistakes require further examination of the rationale for the rule against retroactive ratemaking to determine whether a particular mistake justifies retrospectively altering a rate. Krieger's article provides an overview of how different courts treat the rule of retroactive ratemaking in different contexts and it examines the purpose behind the doctrine. Krieger proposes the following outcome: [ClJommissions and courts should apply a presumption against retroactivity but analyze the particular cireumstances of the case to determine if the presumption should apply. They should first consider the rationality and legitimacy of the expectations of the parties in regard to previously approved rates. They should then examine the potential effects of retroactive relief on economic incentives for the utility. If it appears that reliance on the prior rates was not rational or legitimate and that a retroactive remedy would not create substantial efficiency disincentives, courts should allow such relief.[ ] Applying this rule in the context of "procedural mistake" cases, Krieger states that "the proposed method generally would allow retroactive relief." We do not decide that application of these considerations "would generally" allow for retroactive relief in "procedural mistake" cases; in our view, even "procedural mistake" cases will have to be examined individually and with caution. But we agree with Krieger that at one end of the spectrum "it is difficult to understand how a party could have a rational or legitimate expectation that a court would not rectify clerical [errors] in a commission order." And we agree with AECA that one factor that distinguishes its case from some others is the brief period of time its error went uncorrected. But protecting the reliance interests of consumers and fostering economic efficiency of utilities are primary concerns of the doctrine, and the parties sharply disagree about whether GCI and AT & T Alascom relied on the erroneous 2007 rates to their detriment. As discussed below, this is a question of fact best resolved by the RCA using its specialized expertise. 2. Recognizing procedural mistakes as distinct from prohibited retroactive ratemaking is consistent with the policies and purposes underlying our decision in Matanuska Electric Association, Inc. v. Chugach Electric Association, Inc. GCI challenges AECA's distinction between "procedural" or clerical mistake cases and "second look" cases, arguing that "human error" was to blame for Chugach's failure to update its line loss factor to reflect actual experience, and that "human error" was also responsible for the failure to link the spreadsheets filed by AECA. AECA argues that GCI misunderstands the rationale underlying the rule against retroactive rate-making, and that the goals of the rule are not undermined by correcting the rate in this case. We think AECA has the better argument. As we have explained, the error in this case cannot be equated to a "second look" at an inaccurate prediction of the cost of providing service to utility customers. Further, rectifying the error in this case could return the parties to the position they agreed to when they entered into stipulations for the demand and revenue requirements to determine the 2007 rates. It appears uncontested that the corrected rates would have been adopted as the 2007 rates if AECA's spreadsheets had been properly linked. The parties do not dispute that because of AECA's spreadsheet error, GCI and its ratepayers will receive a windfall at the expense of AECA and its ratepayers. GCI emphasizes that it was AECA, and not the RCA, that made the procedural mistake, suggesting that AECA must live with the consequences of its own error. But GCI does not address the potential situation where AECA's error cuts in its favor. And during oral argument before our court, GCI declined to answer whether it would advocate for the same bright-line rule if AECA's error led to AECA receiving a windfall rather than GCI. GCI insists that the issue of overbilling as a result of a calculation mistake "is not before, and need not be addressed by, this Court," but this hypothetical seems to be the other side of the same problem. 3. The level of complexity in correcting the error is not a determining factor in whether the mistake is procedural. While the underlying facts of this case are undisputed, both sides characterize the error and its impact quite differently. AECA characterizes its error as a "simple calculation 'mistake,'" based on the failure to link spreadsheets correctly. But GCI argues that "[the rate changes in TA5T-999 . required the approval of two new tariff pages and changed 5 different rates," and that "the error at issue occurred in AECA's calculation of the revenue requirement, not in the calculation of the rates." GCI also argues that the RCA's determination that the error was not "merely ministerial" is backed up "by AECA's own description of the error, which explains that it was a computational error buried in the spreadsheets and work papers supporting the requested rates." From the record available to our court, it is difficult to tell which party's characterization of the error is more accurate. Under AECA's characterization, once the underlying revenue requirement and demand factors are determined (in this case through stipulations), the rest of the ratemaking process is fairly mechanical, following the "noncontroversial rate calculation procedures" set forth by the Manual. GCI and the RCA paint a more complex picture; GCI describes a mul-ti-step process leading from the stipulations of the pooled revenue requirement and demand to the actual access charge rate. The RCA distinguishes between the stipulated pooled revenue requirements and the "sub-component "intrastate revenue requirements' that are ultimately used to develop the five specific . intrastate access charge rates which are at issue here." The approval of the rate change prospectively, without dispute about the material facts, indicates that the steps that follow the parties' stipulations to the revenue requirement and demand calculations may be procedural. If that is correct, AECA's erroneous spreadsheet may be fairly categorized as a procedural mistake even if the calculations that follow it are complicated. As AECA suggested in its reply brief, no "disputed issues existed after the approval of the revenue requirement," and "no controversies between the parties remained to be determined by [the RCA]." Having reviewed the parties' arguments, it is not clear from the record available to our court that correcting AECA's spreadsheet error would violate the underlying reasons for retroactive ratemaking rule we articulated in Matanuska Electric Association, Inc. v. Chugach Electric Association, Inc." C. The RCA Has The Authority To Determine The Type Of Mistake That Occurred In The Ratemaking Process And Whether To Retrospectively Apply The Corrected Rate. At oral argument before our court, the RCA made clear that its decision to deny any retrospective application of the corrected 2007 rates was based on its understanding that it lacked the authority to grant this relief. But it is apparent that there are some cases in which the RCA would be obliged to correct an erroneous rate-such as correcting a typographical error of its own. Because the RCA's expertise makes it uniquely well suited to identify the type of error at issue, the ramifications of correcting it, and the ways in which errors do or do not implicate the considerations we articulated in Matanuska Electric Association, Inc. v. Chugach Electric Association, Inc., we remand this case to the RCA for consideration of AECA's request. On remand, the RCA is empowered to retrospectively apply the corrected 2007 rates if, after considering the underlying rationale for the doctrine against retroactive ratemaking, it determines this is an appropriate case for making such an adjustment. D. "Procedural Mistakes" May Only Be Corrected To The Date That . Public Notice Of The Mistake Is Provided. AECA argues that even if the prohibition against retroactive ratemaking is implicated by the facts of this case, RCA should nonetheless have instituted the revised rate prior to its November 2, 2007 order. It argues for an April 1, 2007 effective date based on the parties' stipulation that the 2007 rates would become effective on that date. Alternatively, AECA argues that the corrected rate should have been implemented as of August 21, 2007, when public notice was given of the spreadsheet error. Having considered the parties' arguments, we hold that notice of a proposed rate is presumptively sufficient to overcome the reliance interest concerns raised when correcting a "procedural mistake." The rule that a corrected rate may only be corrected to the date of public notice provides an incentive to utilities to provide notice of errors as soon as possible. Thus, if the RCA finds that correction in this case is appropriate, it may correct the rate starting August 21, 2007-the date AECA gave public notice of the mistake-unless it is shown that other parties detrimentally relied on the approved rate in the interval after notice of the error was made public and before the order approving use of the corrected rate. v. CONCLUSION We VACATE the order of the superior court and REMAND this case to the RCA for further proceedings consistent with this opinion. STOWERS, Justice, concurring in part and dissenting in part. WINFREE, Justice, dissenting in part. . 53 P.3d 578 (Alaska 2002). . REGULATORY COMM'N OF ALASKA. Aaoui RCA, http:// rca.alaska.gov/R CA We b/A bo utR CA/Commission. aspx (last visited Feb. 28, 2011). . Id. . Id. . Id. . Id. . Id. . Id. . Id. . AS 42.05.850 states: The commission may require the local exchange carriers to form an association to assist in administering the system of access charges and may require the association to file tariffs and to engage in pooling of exchange access costs and revenue if necessary to achieve the purposes of AS 42.05.800-42.05.890. . Pursuant tio AS 42.05.830, "the commission shall establish a system of access charges to be paid by long distance carriers to compensate local exchange carriers for the cost of originating and terminating long distance services." . See generally Alaska Exchange Carriers Ass'n, Inc. v. Regulatory Comm'n of Alaska, 202 P.3d 458, 459 (Alaska 2009). . Manual, § 1("(a) This Manual establishes the rules for access charges for intrastate access services provided by telephone companies on or after April 1, 2004.(b) Charges for such access services shall be computed, assessed, and collected, and revenues from such charges shall be distributed as provided in this Manual."). . Manual, § 701(b) and 702(a). . Manual, § 703(g) ("The pool revenue requirement . shall be divided by the pool demand units . to produce the related access charges per demand unit."). . Manual, § 702(b). Demand is more formally known as "access minutes'" or "access minutes of use." Manual, § 801(a). . See eg., Golden Valley Elec. Ass'n, Inc., RCA Docket U-81-048, Order No. 19. 5 APUC 152, 156 (1982) ("The formula for determining a utility's revenue requirement or total allowed earnings is the sum of the utility's reasonable operating expenses (including taxes) plus fair return on its investment or rate base (net plant-in-service). Actual operating results for a one-year test period, adjusted for known and measurable changes, provide the analytical framework for determining a utility's revenue requirement. Total revenues may be computed on an average or year-end basis provided there is a proper matching of investment, expense and revenues.... A utility is entitled to recover its reasonable operating expenses.... Operating expenses are determined by normalizing a 'test year,' f.e., adjustments are made for known and measurable changes that have occurred since the end of the test year."). . Id. . See Mark P. Trinchero & Holly Rachel Smith, Federal Preemption of State Universal Service Regulations Under the Telecommunications Act of 1996, 51 Comm. LJ. 303, 329 n. 154 (1996) ("'The DEM weighting subsidy, established prior to the [Telecommunications Act of 1996], is based on the premise that smaller telephone companies realize higher local switching costs per line because smaller companies are unable to realize economies of scale. As a result, the DEM weighting rules allow small companies to recover local switching costs through interstate traffic.... The separations rules allocate local switching equipment costs between the interstate and intrastate jurisdictions based on the jurisdiction's relative number of dial equipment minutes of use (DEM). Local exchange carriers with fewer than 50,000 lines are allowed to allocate an additional amount of local switching costs, determined by weighting the interstate minutes of use, to the interstate jurisdiction,. DEM weighting is funded by the entities that pay switched access charges, [long distance carriers] and their customers."). . 53 P.3d 578 (Alaska 2002). . Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987) (citing Amerada Hess Pipeline Corp. v. Alaska Pub. Utils. Comm'n, 711 P.2d 1170, 1175 (Alaska 1986)). . Lakloey, Inc. v. Univ. of Alaska, 157 P.3d 1041, 1045 (Alaska 2007) (citing Handley v. State, Dep't of Revenue, $38 P.2d 1231, 1233 (Alaska 1992)). . Storrs v. State Medical Bd., 664 P.2d 547, 554-55 (Alaska 1983) (citations omitted). . 53 P.3d 578. . Id. at 583-84. . Id. at 580. . Id. at 581. . Id. . Id. . Id. . Id. . Id. at 582. . Id. . Id. . Id. at 582-83, 587. . Id. at 582-83. . Id. at 582. . Id. at 583. . Id. at 587. . - Id. at 583 (internal quotations omitted). . - Id. at 584. . Id. . Id. at 584-86. . Id. at 584-85. The statutory requirements we referred to are set out in AS 42.05.411(a) and AS 42.05.421. . Id. at 585. . - Id. at 585-86 (internal citations and quotation marks omitted; emphasis added). . Stefan H. Krieger, The Ghost of Regulation Past: Current Applications of the Rule Against Retroactive Ratemaking in Public Utility Proceedings, 1991 U. Ir. L.Rev. 983 (1991). Krieger's article is widely cited in other jurisdictions as well. See, eg., Sugarmill Woods Civic Ass'n, Inc. v. Fla. Water Servs. Corp., 785 So.2d 720, 726 (Fla.Dist.App.2001); Pub. Advocate v. Pub. Utils. Comm'n, 718 A.2d 201, 210 (Me.1998) (Saufley, J., dissenting); S. Union Co. v. Dep't of Pub. Utils., 458 Mass. 812, 941 NE.2d 633, 641 (2011); Application of Minnegasco, 565 N.W.2d 706, 712 (Minn.1997); In re Comm'n Investigation Into 1997 Earnings of U.S. West Comme'ns, Inc., 127 NM. 254, 980 P.2d 37, 43 (1999); In re Island Hi-Speed Ferry, LLC, 852 A.2d 524, 534 (R.1.2004) (Flanders, J., dissenting); Pub. Util Comm'n of Tex. v. GTE-Southwest, Inc., 901 S.W.2d 401, 406 (Tex.1995); Wis. Power & Light Co. v. Pub. Serv. Comm'n, 181 Wis.2d 385, 511 N.W.2d 291, 297 (1994) (Abrahamson, J., dissenting); PacifiCorp v. Pub. Serv. Comm'n of Wyo., 103 P.3d 862, 875 (Wyo.2004). . 53 P.3d at 580 n. 1, 581 n. 9, 583 n. 18. . Id. at 581-82. . Id. at 582. The line loss factor was introduced in the mid-1980's. The estimation error impacted rates in 1995, 1996, and 1997. The error was discovered in 1997. . Id. at 585 (quoting Detroit Edison Co. v. Mich. Pub. Serv. Comm'n, 416 Mich. 510, 331 N.W.2d 159, 164 (1982)). . Krieger, supra note 47, at 997. . Id. at 1002. . 574 S.W.2d 926, 927 (Ky.App.1978). . Id. at 928. . Id. at 927. . Id. at 927-28. . Id. . 254 IllApp.3d 293, 193 IILDec. 403, 626 N.E.2d 713, 724 (1994). . 896 N.E.2d 936, 2008 WL 4892553 at *4 (Ind. . Id. . 175 Mich.App. 584, 438 N.W.2d 616 (1988). . Id. at 587, 438 N.W.2d 616. . Id. at 591, 438 N.W.2d 616. . Id. . Krieger, supra note 47, at 1042. . Id. at 1044-45 (citations omitted). . - Id. at 1045. . Id. . Matanuska Elec. Ass'n, Inc. v. Chugach Elec. Ass'n, Inc., 53 P.3d 578, 583 (Alaska 2002); Krieger, supra note 47, at 1038-1043. . After GCI received notice of this error, it examined the corrected worksheet and did not object to the prospective application of the corrected rate AECA proposed. . 53 P.3d 578. . See, eg., Alaska Pub. Utils. Comm'n v. Municipality of Anchorage, 902 P.2d 783, 788 (Alaska 1995) (including "utility planning, investor confidence, utility credit rating, and the integrity of service" among the "several reasons for the general rule against retroactive ratemaking"). . See Krieger, supra note 47, at 1046.

10369222

Lorraine F. PALMER and Edward E. Dillon, Jr., personal representatives of the Estate of Merrett P. Palmer, Appellants, v. BORG-WARNER CORPORATION and its Division Marvel-Schebler/Tillotson, Facet Aerospace Products Company and Facet Enterprises, Inc.; and Edward DePriest, Appellees

Palmer v. Borg-Warner Corp.

1990-11-16

No. S-3318

632

640

818 P.2d 632

818

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:02:39.964286+00:00

CAP

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

Lorraine F. PALMER and Edward E. Dillon, Jr., personal representatives of the Estate of Merrett P. Palmer, Appellants, v. BORG-WARNER CORPORATION and its Division Marvel-Schebler/Tillotson, Facet Aerospace Products Company and Facet Enterprises, Inc.; and Edward DePriest, Appellees.

Lorraine F. PALMER and Edward E. Dillon, Jr., personal representatives of the Estate of Merrett P. Palmer, Appellants, v. BORG-WARNER CORPORATION and its Division Marvel-Schebler/Tillotson, Facet Aerospace Products Company and Facet Enterprises, Inc.; and Edward DePriest, Appellees. No. S-3318. Supreme Court of Alaska. Nov. 16, 1990. Rehearings Denied Oct. 28 and Nov. 25, 1991. Steven D. Smith, Smith, Coe & Patterson, Anchorage, for appellants. David T. Hunter, Lane Powell & Barker, Anchorage, for appellees. Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ.

5151

31744

OPINION BURKE, Justice. The issue presented on appeal is whether the superior court properly granted summary judgment in favor of Borg-Warner, an airplane engine component manufacturer, based on its conclusion that the two-year statute of limitations, AS 09.55.580(a), barred a wrongful death claim brought by the estate of a passenger killed in an airplane crash. Specifically, we must decide whether the personal representatives of the estate had notice of a potential claim against Borg-Warner more than two years before filing their complaint. We conclude, as did the superior court, that the complaint was untimely. Thus, we affirm. I On September 8, 1986, a Piper aircraft crashed, in the Brooks Range, roughly thirty miles south of Umiat. Both the pilot, Kenneth Swanson, and his passenger, Mer-rett Palmer, were killed. It is undisputed that Palmer's widow was informed of her husband's death on September 11, 1986. On October 1, 1986, the aircraft's engine was removed by helicopter from the scene of the crash and later transported to Fairbanks. The National Transportation Safety Board (NTSB) commenced an investigation as to the cause of the crash and issued its findings in July of 1987. The NTSB ultimately concluded that there was probable cause to believe the crash occurred due to pilot error. The NTSB report also indicated that "[t]he engine teardown revealed only impact and fire damage." On July 30, 1987, the personal representatives for Palmer's estate filed a wrongful death action against the estate of the aircraft's pilot, Kenneth Swanson. On September 7, 1988, one day before the second anniversary of the crash, Swanson's estate filed suit against the manufacturer of the airplane engine, Borg-Warner, specifically alleging that a defective carburetor caused the crash. The Palmer estate filed suit against Borg-Warner on September 20, 1988, two years and nine days after learning of the accident. In December 1988, Borg-Warner moved for summary judgment against the Palmer estate, arguing that the estate suit for wrongful death was barred by the two-year statute of limitations. The Palmer estate opposed the motion and, in January 1989, filed its own motion for partial summary judgment, arguing that "[a]s of September 20, 1986, Plaintiffs did not know, nor could they have reasonably been expected to know, that the carburetor of the aircraft . may have been defective." The estate claimed that its suit against the manufacturer was, therefore, timely. The superior court granted summary judgment for Borg-Warner, ruling the claim time-barred as a matter of law. The Palmer estate appeals. II A The period of limitations for wrongful death suits in Alaska is two years. AS 09.55.580(a). If applied literally such period would run from the day of death, in this ease September 8, 1986. See Gudenau & Co. v. Sweeney Insurance, 736 P.2d 763, 766 (Alaska 1987) ("Older cases applied this rule literally to bar _ any action initiated more than two years after the plaintiff . was tortiously damaged."); see also Russell v. Municipality of Anchorage, 743 P.2d 372, 375 (Alaska 1987) (statute of limitations normally begins to run on the date the plaintiff suffers the injury). We have, however, in the context of tolling statutes of limitation, adopted the discovery rule which applies in cases where the plaintiff lacks immediate notice of a claim. Under the rule, the limitations trigger date is the "date when a reasonable person has enough information to alert that person that he or she has a potential cause of action or should begin inquiry to protect his or her rights." Mine Safety Appliances v. Stiles, 756 P.2d 288, 291 (Alaska 1988); (citing Sharrow, 658 P.2d at 1334). In Hanebuth v. Bell Helicopter Int'l, 694 P.2d 143, 146 (Alaska 1984), we held that the discovery doctrine applies to Alaska's wrongful death statute. In the case at bar, the trial court, in granting summary judgment, ruled that the statute of limitations should run from, at the latest, September 11th, 1986. That was the date when the potential plaintiffs were notified of the death as well as discovery of the wreckage. They had an obligation and duty from that point in time to investigate in a meaningful manner any potential [defendants]. When reviewing a grant of summary judgment, our duty is to determine whether there was a genuine issue of material fact and whether the moving party was entitled to judgment on the law applicable to the established facts. Mine Safety, 756 P.2d at 291; Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985). Ordinarily, summary judgment is an inappropriate means of ascertaining when a statute of limitation commences. Mine Safety, 756 P.2d at 292; Russell, 743 P.2d at 375-76 & n. 11 (Alaska 1987). Where, however, there exist uncontroverted facts that determine when a reasonable person should have been on inquiry notice, "we can resolve the question as a matter of law." Mine Safety, 756 P.2d at 292. We affirm the trial court. A careful reading of Mine Safety establishes that, upon notification of injury or death, the claimant or estate has an affirmative duty to investigate all potential causes of action before the statute of limitations expires. See Mine Safety, 756 P.2d at 292 (the facts concerning the nature of the injury, knowledge of the whereabouts of the defective product, and the existence of an investigative report about the incident were available to the claimant the day of the accident; the claimant had knowledge of enough facts to prompt a reasonable person to investigate shortly after the accident). Upon notification of an airplane crash, a reasonable person has, as a matter of law, enough information to be alerted that she "should begin an inquiry" concerning a potential cause of action against the pilot, the carrier or the manufacturer. See Reiterman v. Westinghouse, Inc., 106 Mich.App. 698, 308 N.W.2d 612, 614 (1981) ("as a matter oí law . where a product is the instrumentality of death the fact that the product may have been defective has been manifested. It is' then incumbent upon the survivors to investigate the product to determine liability."). "[T]he general safety record of air travel and the present state of air technology compel us to conclude that air crashes do not normally occur absent negligence, even in inclement weather." Widmyer v. Southeast Skyways, Inc., 584 P.2d 1, 14 (Alaska 1978). If inquiry, diligently pursued, would have revealed sufficient information to justify filing within the two-year limitations period, we see no basis for equitably tolling the statutory time limitation. Thus, the Palmer estate reasonably should have known from the date of being informed of the crash that potential claims existed against the pilot, the carrier, or the manufacturers. The estate was notified of Palmer's death in the plane crash on September 11, 1986. The limitations period began on that date. The complaint against Borg-Warner was filed on September 20, 1988, nine days after the limitations period expired. Our holding is consistent with our prior decisions. In Gudenau, we reasoned that the insured was alerted to a potential cause of action against his insurance broker upon learning that the insurer refused to pay on a claim. Gudenau, 736 P.2d at 767. Because the insured failed to diligently pursue this claim once reasonably alerted, we held that the claim, filed outside the statute of limitations, was time-barred. Id. at 767-68. The same reasoning applies here. The estate was reasonably alerted to its potential causes of action upon notification of the crash. In Russell, we held that an applicant to the police academy reasonably should have known of the facts supporting her sex discrimination claim against the municipality the moment she was informed by the department that she was "a minority bump." Russell, 743 P.2d at 375-76. The case at bar presents a similar scenario. The estate was apprised of the potential for a cause of action against Borg-Warner. The limitations clock started on that date. Our decision is also consistent with an analogous decision from Illinois, another jurisdiction in which the discovery rule is applicable to wrongful death actions. Praznik v. Sport Aero, Inc., 42 Ill.App.3d 330, 355 N.E.2d 686 (1976). In Chicago & Southern Airlines v. Volpar, Inc., 54 Ill.App.3d 609, 12 Ill.Dec. 431, 432, 370 N.E.2d 54, 55 (1977), where a plane crashed when its landing gear collapsed while landing, the court held that "[u]ntil the date of the crash, plaintiffs had no opportunity to know of the alleged defective condition of the landing gear.... [Thus the] statute of limitations . began to run on the date of the collapse, which is when plaintiffs knew or should have known of the alleged defect." Like the plaintiffs in Volpar, the plaintiffs in the case at bar could not know of a defective carburetor until the crash. Once informed of the crash, the plaintiffs were alerted to all the facts necessary to start investigating a potential cause of action based upon possible mechanical defects. See also Reiterman, 308 N.W.2d at 614. B The Palmer estate argues that it did not have notice of its claim against the engine manufacturer until July 1987. This argument is based on two theories: (1) that the estate relied on the NTSB's initial reports and findings that the crash was caused by pilot error and, therefore, the estate had no notice or reason to suspect there may have been engine failure, and (2) the estate had no legal right of access to the wreckage until after the NTSB conducted its investigation. We reject the estate's contention that its reliance upon the NTSB report operates to preclude application of the statute of limitations on these facts. The NTSB investigation was not undertaken for the benefit of the estate, and its purpose was not to identify potential tortfeasors. NTSB accident investigations are undertaken to determine whether air safety regulations and procedures were complied with and to identify, if possible, the probable cause of the crash. See 49 U.S.C.App. § 1441(a). These goals do not include identifying negligence for purposes of tort liability. Moreover, NTSB reports are precluded from admissibility in civil suits for damages. See 49 U.S.C.App. § 1441(e); Curry v. Chevron, USA, 779 F.2d 272, 274 (5th Cir.1985); Travelers Insurance Co. v. Riggs, 671 F.2d 810, 816 (4th Cir.1982). See also Beech Aircraft Co. v. Harvey, 558 P.2d 879, 882 (Alaska 1976). We similarly reject the Palmer estate's argument that the statute must be tolled because it had no "legal access" to the wreckage while the NTSB was conducting its investigation and that this fact necessarily requires the limitations period to be tolled. The limitations period runs from the date of inquiry notice. Inaccessibility would persuade us to toll the limitations period where the claimant does not have a reasonable time in which to investigate and file his cause of action. However, not every obstruction or inaccessibility will operate to toll the statute. See Hanebuth, 694 P.2d at 147 (equitable tolling of wrongful death limitations period undertaken in circumstances where litigant has not had "any reasonable opportunity" to bring suit). Delays in investigating causes of action and potential defendants are to be anticipated. See Mergenthaler v. Asbestos Corp. of America, 500 A.2d 1357, 1361 (Del.Super.1985) ("[t]he [cjourt, however, does not recognize mere delay in obtaining discovery . as circumstances which would toll the statute of limitations"). Indeed, the length of a limitations period reflects legislative awareness that time is needed to investigate a course of action before filing suit. In this case, however, it cannot be said that the Palmer estate did not have a "reasonable opportunity" to bring suit against Borg-Warner within two years from the date Mrs. Palmer learned of the accident. Even assuming that the NTSB investigation precluded the estate's own investigation efforts, the estate still had fourteen months after the NTSB released the wreckage to conduct its own investigation into the cause of the crash before the limitations period expired. Moreover, during the period in which the plane was not accessible, no barrier impeded other possible investigations such as that of the relevant literature. We also note that the pilot's estate filed a timely action against Borg-Warner and that the passenger's estate admits that, but for the pilot's suit, the estaté would not have pursued this action. It is difficult to see how Palmer's estate lacked a reasonable opportunity to file suit in light of the pilot's estate's timely filing. There has been no showing that the limitations period was insufficient. Thus, there being no material facts in issue as to the timeliness of the claim, we hold that the estate failed to timely file its complaint against Borg-Warner. The trial court's grant of summary judgment dismissing the estate's claim against Borg-Warner as time-barred is AFFIRMED. COMPTON, J., dissents, with whom RABINOWITZ, J., joins. . The widow apparently submitted an affidavit indicating that she first had notice of her husband's death on September 10. Neither party, however, disputes the finding by the superior court that she had such notice on September 11, and, for purposes of this appeal, we will consider the later date controlling. . AS 01.10.080 provides that a legal time period such as a statute of limitations, is to be "computed by excluding the first day and including the last." See also Alaska R.Civ.P. 6(a) ("[T]he day of the act, event, or default from which the designated period of time begins to run is not to be included."). The statute of limitations in this case, therefore, would actually have begun to run on September 9, 1986, the day following the day of Palmer's death. , . Greater Area Inc. v. Bookman, 657 P.2d 828, 829 (Alaska 1982); see also Sharrow v. Archer, 658 P.2d 1331, 1333 (Alaska 1983). . In dissent, Justice Compton argues that "[i]t simply cannot be said that Palmer reasonably should have known of a possibly defective carburetor before . September 30th." Dissent (emphasis omitted). This ignores the true focus of this case: we do not insist that a claimant actually know the precise cause at the time of the injury, rather we conclude that a claimant must begin an inquiry as to the cause of injury promptly and diligently once it is apparent that an injury has occurred due to the possible negligence of another. We simply emphasize that failure to exercise diligence in investigating a crash is no cause to equitably toll the statute. Such dilatory conduct is done at the risk of being precluded from bringing suit. Justice Compton's argument was rejected in Pocono Int'l Raceway v. Pocono Produce, 503 Pa. 80, 468 A.2d 468, 471 (1983) ("the statute of limitations begins to run as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding do not toll the running of the statute of limitations") (citations omitted); Arrowood v. General Motors Corp., 539 F.2d 1321, 1325 (4th Cir.1976); and Szlinis v. Moulded Fiber Glass Cos., 80 Mich.App. 55, 263 N.W.2d 282, 287 (1977). Further, Justice Compton's approach passes over the intended application of the discovery rule. The doctrine tolls the statute "until the plaintiff has in fact discovered that he has suffered injury, or by the exercise of reasonable diligence should have discovered it." W. Keeton, D. Dobbs, R. Keeton, & R. Owen, Prosser & Keeton on The Law of Torts § 30, at 166 (5th ed. 1984). The Palmer estate fails on both counts: first, the injury was "discovered" on September 11, 1986, when the widow was informed of her husband's death. Second, the estate failed to exercise "reasonable diligence" when it neglected to promptly investigate the possibility of engine failure. But for the pilot's estate filing suit against Borg-Warner, the Palmer estate, by its own admission would never have pursued this claim. . The Palmer estate relies on federal regulations to point out its apparent exclusion from the aircraft wreckage. The Palmer estate cites 49 C.F.R. § 830.10(b), 49 C.F.R. § 831.9(c), and 49 C.F.R. § 831.10-.il as standing for the proposition that it was precluded from inspecting the wreckage pending the NTSB investigation. Thus, according to the Palmer estate, the statute of limitations period should be tolled during the time the estate had no access, and hence no notice, of their potential claims. Borg-Warner disputes this contention and claims that under federal law, the estate could have had access if it sought permission. We assume for purposes of this review that the estate is correct. . Airplane accidents are not unusual in Alaska. Yet, we have concluded that "[t]he general safety record of air travel and the present state of air technology compel us to conclude that air crashes do not normally occur absent negligence, even in inclement weather." Widmyer v. Southeast Skyways, Inc., 584 P.2d 1, 14 (Alaska 1978). Thus, the estate reasonably should have known from the date of being informed of the crash that potential claims existed against the pilot, the carrier, or the manufacturer. One commentator pointed out that "connecting the injury [in an aviation mishap] to a manufacturing flaw often is a lengthy process, and one of the primary dangers to a products liability plaintiff is that, as a general rule, products liability cases are not exempt from the statute of limitations." Note, Products Liability, the Statute of Limitations, and the Discovery Rule After North Coast Air v. Grumman Corp., 25 Willamette L.Rev. 901, 902 (1989).

10369959

Charles D. OLSON, Appellant, v. AIC/MARTIN J.V., and Employers Casualty Co., Appellees

Olson v. AIC/Martin J.V.

1991-06-07

No. S-3670

669

677

818 P.2d 669

818

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:02:39.964286+00:00

CAP

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

Charles D. OLSON, Appellant, v. AIC/MARTIN J.V., and Employers Casualty Co., Appellees.

Charles D. OLSON, Appellant, v. AIC/MARTIN J.V., and Employers Casualty Co., Appellees. No. S-3670. Supreme Court of Alaska. June 7, 1991. Rehearing Denied July 18, 1991. Michael J. Jensen, Anchorage, for appellant. Shelby L. Nuenke-Davison, Davison & Davison, Inc., Anchorage, for appellees. Before RABINOWITZ, C.J., BURKE, MATTHEWS, COMPTON, and MOORE, JJ.

4367

27773

OPINION RABINOWITZ, Chief Justice. INTRODUCTION Charles Olson appeals the Alaska Workers' Compensation Board's ("Board") decision, as affirmed by the superior court, terminating his temporary total disability ("TTD") benefits, denying him vocational rehabilitation and various continuing medical costs, and applying AS 23.30.145(b) to his request for attorney's fees. FACTS Charles Olson was injured on July 29, 1985, while working as a heavy duty tire-man for AIC/Martin, J.Y. ("AIC/Martin") in Prudhoe Bay. He was operating a tire boom truck when the tire slipped, forcing his arm into the controls. He was squeezed between the tire boom and tire until losing consciousness, when he was rescued by a co-worker. At the time of injury, his average weekly wage was $797.92. Olson received TTD benefits at a weekly rate of $489.33 from July 30, 1985 until February 23, 1988. Olson believed he could not return to heavy duty tireman work due to his 1985 injury. AIC/Martin referred Olson to rehabilitation services in September 1986. A fifty week vocational rehabilitation plan was drafted in January 1988, to prepare Olson for the position of auto service technician. This type of employment would have given Olson an anticipated wage of approximately $15.60 per hour. Olson did not pursue this plan. In the interim, since he believed other alternatives did not exist, Olson organized a tire retreading business in June 1986. The business, Olson's Precision Retreading, was owned by Olson's father. The business differed from a typical retread shop in that it handled only passenger and light truck tires and its procedures were modified to account for Olson's physical limitations. Since December 1986, Olson has been an "organizer, supervisor, teaching everybody how to do the job." He works between forty and seventy hours a week. Olson currently receives no compensation, but he keeps track of his time so he can use it in future negotiations in purchasing the business from his father. Olson has seen many doctors about the continuing health problems he attributes to his injury. His chief complaints have been 1) Stabbing and burning pain in the left shoulder, associated with numbness extending into the left upper extremity and to the small, ring, and long fingers. 2) Headaches, pounding type, extending from the interscapular region to the posterior aspect of his neck, to the left side of his head, and eye. 3) Numbness in the toes of the left foot present when the fingers become numb. In April 1987, the Objective Medical Assessment Corporation conducted an independent medical review for AIC/Martin's insurance carrier. The Medical Assessment Corporation found evidence of an untreated rotator cuff tear and untreated left carpal tunnel syndrome. It recommended the claim remain open for continued orthopedic treatment. In January 1988, Ortho-paedic Panel Consultants, on behalf of AIC/Martin, conducted another independent medical evaluation of Olson. The report of Orthopaedic Panel stated, "1) Claimant is medically and vocationally stationary. 2) No further treatment is indicated. 3) Claimant has been released for regular work, and some specific jobs. 4) Claimant has been working in a family business since October of 1986, and is vocationally stationary." On February 11, 1988, Olson filed an adjustment of claim for continuing medical care. AIC/Martin filed a controversion notice concerning benefits for TTD, TPD (temporary partial disability), PPD (permanent partial disability), current medical treatment, and vocational rehabilitation. At the hearing on Olson's claim, the Board heard evidence and examined depositions and reports from numerous doctors. The Board also considered various labor reports. In particular, David Tydings, a vocational rehabilitation counselor from Comprehensive Rehabilitation Services, Inc. ("CRS"), testified at the hearing. He testified that Olson had returned to suitable gainful employment as a supervisor/manager and that Olson would not benefit from additional vocational rehabilitation. Tydings further stated that the auto service technician position would not place Olson in a better position economically than what he had achieved in retraining himself. The Board held that Olson was not entitled to TTD benefits, vocational rehabilitation benefits, or continuing medical benefits, except for treatment of the left shoulder rotator cuff injury. Olson had sought continuing medical benefits for his cervical spine, carpal tunnel syndrome, and leg numbness, which were denied because the Board "received no evidence linking" these symptoms "to the 1985 injury." The Board also denied AIC/Martin's request for a compensation rate reduction. The Board retained jurisdiction to determine the reasonableness of Olson's attorney's fees request for defeating the employer's compensation rate reduction claim, although it held it would determine those fees under AS 23.30.145(b). The superior court affirmed the Board's decision, holding there was substantial evidence to support the Board's rulings. The superior court approved the Board's application of AS 23.30.145(b) for attorney's fees, but concluded that the reasonableness of the fee award was not ripe for review. DISCUSSION I. TEMPORARY TOTAL DISABILITY BENEFITS A. The Presumption of Compensability The Board found that Olson was capable of working as a tire shop manager and a tire retread shop manager and therefore denied his claim for further TTD compensation. Before examining the evidence, the Board, in its decision, stated the law as follows: "We have also found that an employee bears the burden of proving whether or not he is disabled and the nature and extent of the disability. Keyes v. Reeve Aleutian Airways, AWCB No. 85-0312 at 12-13 (November 8, 1985)." We conclude that the Board erred in this ruling. We hold that the presumption of compensability in AS 23.30.120(a) applies when an employer controverts TTD compensation already awarded under AS 23.-30.185. The Alaska Workers' Compensation Act contains an express presumption of com-pensability. See AS 23.30.120(a). Past decisions of this court have indicated that the presumption applies to TTD benefits. For example, in Bailey v. Litwin Corp., 713 P.2d 249, 252 (Alaska 1986), we assumed that the presumption applied to a claim for continuing TTD, but explained that the employer had overcome the presumption. In Kodiak Oilfield Haulers v. Adams, 777 P.2d 1145, 1150 (Alaska 1989), a disabled worker sought reinstatement of TTD compensation, and the Board erroneously failed to apply the presumption to whether a work-related injury remained the source of an employee's continuing disability when an intervening injury occurred. There, however, the failure to apply the presumption was harmless error. Most recently, in Wien Air Alaska v. Kramer, 807 P.2d 471 (Alaska 1991), we applied the statutory presumption to a claim of continuing disability in the temporary total disability context, specifically concluding that the presumption applied to the question of whether a compensable disability existed. In Municipality of Anchorage v. Carter, 818 P.2d 661, 665 (Alaska 1991), where we applied the presumption to a claim for continuing care under AS 23.30.095(a), we stated, "Moreover, the text of AS 23.30.120(a) indicates that the presumption of compensability is applicable to any claim for compensation under the workers' compensation statute." The presumption shifts only the burden of production, not the burden of proof. Wien Air, 807 P.2d at 474 n. 4; Kodiak Oilfield Haulers, 777 P.2d at 1150. In accord with Bailey, we hold that an employee presumptively remains temporarily totally disabled unless and until the employer introduces "substantial evidence" to the contrary. See 713 P.2d at 252, 254. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion" that TTD is either not indicated, or not indicated as the employee contends. Id. at 252 n. 7 (quoting Miller v. ITT Arctic Services, 511 P.2d 1044, 1046 (Alaska 1978)). Each party must then carry the burden of persuasion on its claim without aid of any presumption or construction in favor or against recovery. See Carter at 667 (citing 1988 SLA ch. 79 § 1(b)); see also Bailey, 713 P.2d at 252. Since the Board erred in its preliminary allocation of the burden of production, the issue must be remanded to the Board for redetermination. See Carter, at 666 n. 14. In so doing, we do not decide whether the Board's failure to apply the presumption of AS 23.30.120(a) is harmless error since the Board also erroneously defined temporary total disability. B. Defining Temporary Total Disability The Board, citing Vetter v. Alaska Workmen's Comp. Board, 524 P.2d 264, 266 (Alaska 1974), defined disability as the "loss of earning capacity related to [a medical] impairment." The Board, quoting language from Bailey, 713 P.2d 249, 254, n. 12 (Alaska 1986), defined total temporary disability as "incapable of performing any kind of work." The Board found "the capability of performing work, rather than actual receipt of wages" ends the right to receive TTD compensation. Olson contests the Board's definition of TTD. He contends that "[t]he question is whether or not there is steady work and is it readily available." Using this test, Olson maintains that AIC/Martin did not offer substantial evidence that work is readily available to him as a retread shop manager, given his physical limitations. AIC/Martin, in contrast, defines the test of temporary total disability as whether "(1) the employee is medically stationary and (2) whether he can perform any work." We hold that the ability to perform any kind of work does not determine whether temporary total disability has ended. Rather, on remand, the Board must consider Olson's earning potential and the availability of employment. The Alaska Worker's Compensation Act does not define temporary total disability. This court enunciated a definition of TTD in Bailey v. Litwin Cory., 713 P.2d 249 (Alaska 1986), which the Board relied upon. Bailey stands for the proposition that "medical stability" is irrelevant in determining cessation of TTD benefits if the employee has returned to work. Bailey, 713 P.2d at 253. Bailey held that the claimant's return to work was "sufficient evidence to rebut the presumption of continuing compensability for temporary total disability." Id. at 254. A footnote explained, "Temporary disability may be total (incapable of performing any kind of work), or partial (capable of performing some kind of work)." Id. at 254 n. 12 (quoting Huston v. Workers' Compensation Appeals Bd., 95 Cal.App.3d 856, 868, 157 Cal.Rptr. 355, 362 (Cal.App.1979) (emphasis in original)). Despite this footnote in Bailey, we have never indicated that obtaining "any" work terminates an employee's right to TTD benefits. In Bailey, the employee had already returned to work and was making more than he had before his injury. In Phillips Petroleum Co. v. Alaska Industrial Bd., 17 Alaska 658, 667 (D.Alaska 1958), a case cited by the Board, the territorial district court held, "there is recognized the rule in practically all jurisdictions that the ability of an employee to engage in 'light or occasional' work does not negative a finding that the employee is entitled to total compensation." (Citations omitted.) Recently, in Wien Air Alaska v. Kramer, we stated, "loss of earning capacity is the defining characteristic of a compensa-ble disability." 807 P.2d 471, 474 (Alaska 1991) (citing Hewing v. Peter Kiewit & Sons, 586 P.2d 182, 185-86 (Alaska 1978)). See also 2 A. Larson, Workmen's Compensation, § 57.00, at 10-1 (Desk Ed.1990) ("Total disability may be found, in spite of sporadic earnings, if the claimant's physical condition is such as to disqualify him for regular employment in the labor market."); New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 1038 (5th Cir.1981) ("Total disability may be economic as well as medical. It is therefore possible under [the Longshoremen's and Harbor Workers' Compensation Act] for an individual to be totally disabled 'when physically capable of performing certain work but otherwise unable to secure that particular kind of work.' " (citations omitted)); Newport News Shipbuilding & Dry Dock Co. v. Director, Office of Workers' Comp. Programs, United States Dep't of Labor, 592 F.2d 762, 765 (4th Cir.1979) ("We think the employer must demonstrate that 'there [are] jobs available in the local economy which the claimant, considering his age, past experience and disability, [is] capable of performing.' " (citation omitted)). Incorporated into this idea is the concept of steady and readily available employment. In Hewing v. Alaska Workmen's Comp. Bd., 512 P.2d 896, 900 (Alaska 1973), we reviewed a claim for permanent partial disability and said, "The availability of work in the employee's community which he can perform in his injured condition is an important determinant of earning capacity." (Footnote omitted). In Phillips Petroleum Co., the district court recognized that "the fact of occasional earnings is not quite so important as the physical condition of the employee to earn income with a degree of regularity." 17 Alaska at 669. See also J.B. Warrack Co. v. Roan, 418 P.2d 986, 988 (Alaska 1966) (total disability in determining permanent total disability "is the inability because of injuries to perform services other than those which are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist" (footnote omitted)). The Board fails to indicate that employment opportunities exist for Olson as a tire retread shop manager given his physical limitations. It concludes that Olson was not "incapable of performing any kind of work," emphasizing Olson's employment at his father's shop, although the Board acknowledged that he did not receive a wage. However, Olson's employment for his father does not mean his TTD benefits should cease. See Heironymus v. Jacobsen Transfer, 215 Neb. 209, 337 N.W.2d 769 (1983) (injured truckdriver was totally disabled even through she was her husband's bookkeeper because there was no indication that she could perform this service for anyone but her husband). The need to look at whether steady readily available work exists has as its rationale "a desire to encourage, or at least not penalize, commendable efforts by the claimant to rehabilitate himself." 2 A. Larson, Workmen's Compensation, § 57.51, at 10-62 (Desk Ed.1990). Professor Larson continues, "Since what is being tested under the odd-lot doctrine is claimant's ability to command regular income as the result of his personal labor, it is plain that income from a business owned by the claimant, even though he contributes some work to it, should not be used to reduce disability." Larson, supra, § 57.51, at 10-62. See also Bertsch v. Varnum Lumber & Fuel Co., 303 Minn. 545, 228 N.W.2d 228 (1975) (injured worker's opening of an upholstery business did not reduce a total to a partial disability); Connolly v. Workmen's Comp. App. Bd., 8 Pa.Cmwlth. 99, 301 A.2d 109 (1973) (fact that injured worker bought employer's business and spent four hours per day managing and conversing with customers did not mean total disability had ceased). As Professor Larson finally states, Under the odd-lot doctrine, which is accepted .in virtually every jurisdiction, total disability may be found in the case of workers who, while not altogether incapacitated for work, are so handicapped that they will not be employed regularly in any well-known branch of the labor market. The essence of the test is the probable dependability with which claimant can sell his services in a competitive labor market, undistorted by such factors as business booms, sympathy of a particular employer or friends, temporary good luck, or the superhuman efforts of the claimant to rise above his crippling handicaps. Larson, supra, § 57.51, at 10-53 (emphasis added). Therefore, the Board's termination of TTD because Olson was capable of performing any work, regardless of availability of employment, was error. II. VOCATIONAL REHABILITATION BENEFITS The Board found that Olson was not entitled to a vocational rehabilitation plan because he had the ability to return to "suitable gainful employment," as a tire retread or tire repair shop manager. Olson essentially contends that these jobs fall outside of his physical limitations and represent a loss of post injury earning capacity- Review of the Board's factual findings is limited to determining "whether the board's findings are supported by substantial evidence in light of the whole record." Bailey, 713 P.2d at 252 (citations omitted). AS 23.30.265(28), defines suitable gainful employment: 'Suitable gainful employment' means employment that is reasonably attainable in light of an individual's age, education, previous occupation, and injury, and that offers an opportunity to restore the individual as soon as practical to a remunerative occupation and as nearly as possible to the individual's gross weekly earnings as determined at the time of injury. Our review of the record persuades us that there existed substantial evidence to support the Board's conclusion. We thus affirm the Board's determination that Olson was not entitled to a vocational rehabilitation plan. In this regard, the Board said, Tydings concluded work as a tire retread or tire repair shop manager represented suitable gainful employment. We agree with that conclusion. Based on the vocation rehabilitation consultant's testimony, we find that as a beginning tire repair shop manager the employee might earn $288.00 to $485.00 a week, earnings rising to $769.00 a week with experience. Based on Settle's testimony, we find that as a tire retread shop manager the employee could currently earn $380.00 to $510.00 a week. Those rates of pay are less than the $796.00 gross weekly earnings at time of injury. However, we must also consider other factors. The vast majority of the employee's work experience involves similar work in tire repair and retreading. The employee also has only a high school education. The employee is currently fully qualified for positions as a shop manager and could, over time, approach the level of wages he obtained during his short period of employment as a tireman. We conclude that, considering all the factors, the positions of tire retread shop manager and tire repair shop manager constitute suitable gainful employment available to the employee without a vocational rehabilitation plan. We conclude the employee is not entitled to a vocational rehabilitation plan even if he could not return to work as a heavy duty tireman. Tydings testified at the hearing that Olson would not reach a comparable wage any quicker as an auto service technician. Olson acknowledged that he has specialized training from on-the-job work in "all areas of tire repair and manufacture." In any event, by February 23, 1988, Olson had returned to suitable gainful employment, testifying that he wanted to remain in his present position. III. MEDICAL BENEFITS The Board denied Olson continuing medical benefits other than for a torn rotator cuff. It found by a preponderance of evidence that Olson's cervical spine was not damaged so severely that any continuing pain could be attributed to the 1985 injury. The Board also "received no evidence linking any current carpal tunnel syndrome or leg numbness to the 1985 injury." The Board said, "Employee has the burden of proving the need for the treatment by a preponderance of the evidence." We have held that medical benefits are part of a compensation award within the meaning of the Workers' Compensation Act. Moretz v. O'Neill Investigations, 783 P.2d 764, 766 (Alaska 1989). As mentioned above, the presumption of compensability applies to continuing medical care. Carter, at 665. In deciding whether the presumption of compensability applies to a claim, the Board must determine whether the employee has established some "preliminary link" between the alleged disability and the employment. See, e.g., Burgess Const. Co. v. Smallwood, 623 P.2d 312, 316 (Alaska 1981) ("there must be some evidence that the claim arose out of, or in the course of, employment before the presumption arises"). We have emphasized, however, that this threshold showing is minimal, and requires only that an employee adduce some evidence that the claim arose out of his employment. Cheeks v. Wismer & Becker/G.S. Atkinson, 742 P.2d 239, 244 (Alaska 1987); see also Kessick v. Alyeska Pipeline Service Co., 617 P.2d 755, 758 (Alaska 1980) (doubts regarding inconclusive but uncontroverted medical testimony resolved in claimant's favor). Given that the Board failed to apply the presumption, the question is whether such error was harmless. The superior court found, The testimony of both doctors established the lack of carpal tunnel syndrome and the lack of further cervical spine problems. Even if the Board's decision initially placing the burden of proof on the employee was error, it was harmless because, as a matter of law, the evidence relied on by the Board was sufficient to overcome a presumption of compensability and considering the record as a whole was substantial evidence to support the Board's conclusion that the only medical benefits for which the employee is entitled are benefits for the torn rotator cuff. However, our examination of the record indicates a remand of this issue to the Board is necessary. Evidence existed, for example, acknowledging the carpal tunnel syndrome and leg numbness and linking it to Olson's 1985 injury. The Objective Medical Assessments Corporation said, "It is possible that the carpal tunnel syndrome is related to the industrial injury of record." Dr. Klein stated that he felt the 1985 industrial accident was "a substantial factor in [Olson's] current medical condition." Olson himself linked his shoulder pain, shooting arm pain, numb hands, upper back pain and neck pain to his accident. After this link was established, AIC/Martin needed to provide substantial evidence that the medical conditions were not related to the 1985 injury. "A party may overcome the presumption of com-pensability either by presenting affirmative evidence that the injury is not work-connected or by eliminating all possibilities that the injury was work-connected." Veco, Inc. v. Wolfer, 693 P.2d 865, 872 (Alaska 1985) (citing Fireman's Fund American Insurance Cos. v. Gomes, 544 P.2d 1013 (Alaska 1976)). Only then would the burden of persuasion return to Olson. In our view, the record contains enough ambiguity as to whether the presumption would have changed the outcome to require a remand on these issues. IV. ATTORNEY'S FEES The Board stated, We find the employee retained an attorney who successfully defeated the employer's claim for a weekly compensation rate decrease of $330.71 which, if found, would have amounted to an overpayment of approximately $44,000.00. However, because the employee did not initially request an attorney's fee under AS 23.-30.145(b), we have no documentation of services rendered to defeat the employer's claim. The employee shall therefore submit to the employer documentation of fees and costs incurred on the compensation rate issue. The employer shall pay a reasonable fee and reimburse costs under AS 23.30.145(b) and 8 AAC 45.180. We retain jurisdiction to resolve disputes over reasonableness of the requested fees and costs. Olson maintains that statutory attorney's fees under AS 23.30.145(a) should have been awarded, instead of reasonable attorney's fees under AS 23.30.145(b). AIC/Martin argues that the Board specifically retained jurisdiction to resolve the attorney fee question, and the superior court properly agreed the issue was not ripe for review. AIC/Martin also claims that Olson did not appeal that issue, and therefore it was not preserved. The issue is properly before this court. The Board rendered a final decision on the issue on June 16, 1989. The superi- or court, while unable to review the actual fee award, did decide that the Board's decision to apply AS 23.30.145(b) was not manifestly unreasonable or error as a matter of law. Olson's statement of points on appeal indicate that he was appealing the applica tion of AS 23.30.145(b). Hence, this issue of law was preserved and is properly before this court. The Board did not err in applying AS 23.30.145(b). The Board stated, "We find the employer, by seeking a compensation rate decrease and alleging an overpayment of compensation, 'otherwise resisted] the payment of compensation.' AS 23.30.145(b)." Moreover, AS 23.30.145(a) requires that compensation be "awarded": "the fees may be allowed only on the amount of compensation controverted and awarded." Here there was no award, rather Olson defeated the employer's claim for a weekly compensation decrease. Therefore, the Board did not abuse its discretion in awarding fees pursuant to AS 23.30.-145(b) in regard to Olson's successful defense of AIC/Martin's claim for a weekly rate decrease. See Wien Air Alaska v. Arant, 592 P.2d 352, 366 (Alaska 1979). CONCLUSION The decision of the superior court is AFFIRMED in part, REVERSED in part, and REMANDED with instructions to REMAND to the Board for further proceedings consistent with this opinion. . The heaviest object that retreaders at Olson's shop have to lift is seventy-five pounds. . AS 23.30.145 reads in relevant part, (b) 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. . We exercise de novo review on this issue. Miller v. ITT Arctic Services, 577 P.2d 1044, 1046 (Alaska 1978). . That statute provides in part, "In a proceeding for the enforcement of a claim for compensation under this chapter it is presumed, in the absence of substantial evidence to the contrary, that (1) the claim comes within the provisions of this chapter...." . Bailey received TTD benefits from November 1980 until July 1981. He sought continued TTD benefits between July 1981 and May 1982. Although employed, he argued that he was eligible for TTD benefits because he was not medically stable as of July 1981, his medical condition prevented him from working full-time, and he was being retrained in instrumentation. Bailey, 713 P.2d at 252. However, from July 7, 1981 through May 7, 1982, Bailey worked a total of 1170 hours and earned over $36,000, making more on a weekly average than he was making in 1980 before he was injured. Id. at 251. Consequently, we held that "the Board did not err in focusing on Bailey's employment" when denying continued TTD benefits. Id., at 253. . The Alaska Workers' Compensation Act was amended significantly in 1988. The 1988 amendments apply only to injuries sustained on or after July 1, 1988. Since Olson was injured in July 1985, the former law applies.

6986246

Kalindi McALPINE, Appellant, v. Shaun PACARRO, Appellee

McAlpine v. Pacarro

2011-10-21

No. S-13903

622

627

262 P.3d 622

262

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T19:02:37.665411+00:00

CAP

Before: CARPENETI, Chief Justice, FABE, WINFREE, and CHRISTEN, Justices.

Kalindi McALPINE, Appellant, v. Shaun PACARRO, Appellee.

Kalindi McALPINE, Appellant, v. Shaun PACARRO, Appellee. No. S-13903. Supreme Court of Alaska. Oct. 21, 2011. Kalindi McAlpine, pro se, Alachua, Florida, Appellant. Herbert A. Viergutz, Law Office of Herbert A. Viergutz, P.C., Anchorage, for Appel-lee. Before: CARPENETI, Chief Justice, FABE, WINFREE, and CHRISTEN, Justices.

3098

19897

OPINION WINFREE, Justice. I. INTRODUCTION A mother appeals the superior court's denial of an evidentiary hearing for her motion to modify child custody. Because the mother was entitled to an evidentiary hearing in this case, we remand for further proceedings. II. FACTS AND PROCEEDINGS A. Facts In December 1999, while Kalindi McAlpine and Shaun Pacarro were living together, Shaun assaulted Kalindi. Shaun pleaded guilty to, and was convicted of, domestic violence assault. In 2000 Kalindi and Shaun married. Shaun's conviction was set aside in early 2001 after he met conditions of a suspended imposition of sentence. In 2004 Kalindi petitioned for an ex parte domestic violence protective order against Shaun, asserting that Shaun abused her throughout their entire relationship even after he was arrested in 1999. 'The district court granted the petition after finding by a preponderance of the evidence that Shaun committed a crime involving domestic violence against Kalindi. Kalindi and Shaun divorced in 2005. Proceeding pro se, they entered into a court-approved custody settlement agreement: they agreed to joint legal custody of their three minor children, two daughters and one son, with Kalindi having primary physical custody and Shaun having visitation. In October 2006, again proceeding pro se, Kalindi and Shaun entered into a second court-approved custody settlement agreement. This agreement allowed Kalindi to move with the children to Florida and gave Shaun visitation with the children during the summer. There is no indication in the record that the parties mentioned the 1999 and 2004 (or any other) incidents of domestic violence during these proceedings. Kalindi moved with the children to Florida in July 2007. B. Proceedings 1. 2007 motions, December 2007 hearing, and December 2007 interim order In October and November 2007, after Kal-indi moved to Florida with the children, Shaun filed motions asserting his visitation was denied. Kalindi later filed, in Alaska, a petition for ex parte and long-term domestic violence protective orders against Shaun; her ex parte motion was granted on December 8. Kalindi and Shaun appeared pro se at a December 11 hearing on the visitation motion and long-term domestic violence petition. Kalindi acknowledged that she had not let Shaun see the children, but asserted this was because Shaun had threatened her and the children and had abused the children. The superior court questioned Shaun about his 1999 conviction. Shaun confirmed that he pleaded guilty and was convicted of domestic violence assault against Kalindi. The court noted that Shaun's conviction resulted in a suspended imposition of sentence, probation for one year, and a condition that Shaun attend and complete a domestic violence intervention program. Shaun asserted that he completed the required program in July 2000. The superior court noted that Kalindi had petitioned for a domestic violence protective order against Shaun in 2004. The court pointed to the 2004 petition as one example of how Kalindi is "familiar with the system [and] . knows how [domestic violence] protective orders work." The court did not question Shaun or Kalindi about the events underlying the 2004 petition and order. The éuperior court vacated the ex parte domestic violence protective order and denied the petition for a long-term protective order, finding Kalindi's "testimony regarding her allegations of domestic violence by [Shaun] against her and the children to be false" and that there was "no credible evidence of domestic violence by [Shaun] in the 2005-2007 time period." The court granted Shaun primary physical custody of the children because of Kalindi's interference with Shaun's custodial rights and because the factors pertaining to the children's best interests under AS 25.24.150(c) clearly weighed in favor of the children being in their father's custody. The court indicated that its custody modification "should be understood to be an interim order, effective from the date of the hearing until another hearing is conducted . in the summer of 2008. If no hearing is requested, then the interim order will become permanent." (Emphasis omitted.) Neither parent sought appellate review of the interim order. 2. 2008 motions, August 2008 hearing, and October 2008 order In early 2008 Kalindi and Shaun each retained counsel. In May Shaun filed a motion seeking supervision of Kalindi's visitation with the children. Kalindi opposed the motion and filed a cross-motion asserting Shaun denied her visitation. The superior court held a hearing on August 22 and issued a written order on October 20, which the clerk distributed on November 8: Kalindi was granted continued unsupervised visitation contingent on her following certain conditions, and Shaun retained primary physical custody. Neither parent moved to modify physical custody in 2008. Neither parent sought appellate review of the October 2008 order. 3. October 2009 motion and May 2010 order In October 2009 Kalindi filed a motion seeking to modify "interim" eustody and visitation, to establish "final child eustody orders," and to determine the rule of law regarding the effect of Shaun's prior domestic violence on the custody decision. Kalindi sought sole legal and primary physical eusto-dy of the children and requested an eviden-tiary hearing. In early 2010 the case was reassigned to Superior Court Judge Eric A. Aarseth. Kal-indi again requested an evidentiary hearing on her motion. In May the superior court denied her motion without a hearing, stating that the August 2008 hearing had resulted in a "final order" and concluding that Kalindi was "barred by the doctrines of res judicata and collateral estoppel from attempting to re-litigate legal and factual matters that existed prior to the August 22, 2008 hearing," including "factual issues that were known or should have been known to" her at the hearing. 4. Appeal Kalindi appeals pro se from the May 2010 order; we understand Kalindi's primary ar gument to be that the superior court erred by denying her a custody modification hearing to present evidence of Shaun's history of domestic violence. Kalindi also presents arguments that the superior court erred in December 2007 by: (1) denying her due process by not giving her notice that custody was at issue at the December hearing; (2) modifying custody; and (3) finding that she "has a blatant disregard for the father." We decline to reach the merits of these arguments because Kalindi did not timely seek review of the December 2007 order. A party must appeal a "final judgment for custody of children" within 15 days of the clerk's distribution certificate The December 2007 order indicated that the court's interim eustody modification would become permanent unless a hearing was requested in the summer of 2008. Kalindi did not seek interlocutory review of that order, and neither Kalindi nor Shaun requested a custody hearing to prevent the interim order from becoming final. After the August 2008 visitation hearing, the court issued a written order in October indicating that Kalindi would continue having unsupervised visitation and Shaun would retain primary physical custody. The clerk distributed that order in early November. Certainly by that point the December 2007 order had become a final judgment effectively ending the 2007 custody dispute. Kalindi did not appeal the October 2008 order, but instead filed a new motion in the superior court a year later in October 2009. That motion resulted in the May 2010 order. We limit our review to Kalindi's appeal from that order. IH. STANDARD OF REVIEW We review de novo a moving party has made out a prima facie showing sufficient to justify a custody modification hearing." We will affirm the denial of a custody modification motion without a hearing if "the facts alleged, even if proved, cannot warrant modification, or if the allegations are so general or conclusory, and so convincingly refuted by competent evidence, as to create no genuine issue of a material fact requiring a hearing." IV. DISCUSSION Kalindi contends the superior court erred in denying her a custody modification hearing to present evidence of Shaun's domestic violence history. Kalindi further contends the court erred by denying her modification motion without considering whether AS 25.24.150(g)'s rebuttable presumption applied. Kalindi also asserts the court erred by ignoring: (1) evidence submitted at the December 2007 hearing; (2) new evidence that Shaun committed domestic violence between 2005 and 2007; and (3) new evidence that Shaun committed domestic violence after taking custody of the children in December 2007. These arguments bring to bear different and competing policy concerns regarding finality of judgments, child custody modification, and domestic violence as a factor in child custody determinations. Res judicata, or claim preclusion, bars relitigation of a claim when there is "(1) a final judgment on the merits, (2) from a court of competent jurisdiction, (8) in a dispute between the same parties (or their privies) about the same cause of action. But AS 25.20.110 provides an exception to the general principle that final judgments should not be disturbed-it allows parents to seek modification of child custody based on a change of circumstances if modification is in the best interests of the child. A custody modification motion is not a new action, but rather a request to reopen the final judgment in the same case. Consequently res judicata does not apply to custody modification motions, although the principle of finality does-parties should not be allowed to reliti-gate "in the hope of gaining a more favorable position." Our cases demonstrate that the change in cireumstances requirement for custody modification "is intended to discourage continual relitigation of custody decisions, a policy motivated by the judicial assumption that finality and certainty in custody matters are critical to the child's emotional welfare." Although a party moving for custody modification must generally demonstrate "a substantial change in cireumstances since the last custody order was entered," we have relaxed this rule in custody matters involving domestic violence, directing the superior court to look back to events that occurred before the initial custody order if not adequately addressed at the initial custody determination or subsequent proceedings." Taking prior domestic violence into consideration is particularly important in cases where a settlement agreement deciding custody was made by pro se parties with a history of domestic violence." In this case Shaun and Kalindi, proceeding pro se, entered into divorce-related custody settlement agreements in 2005 and 2006. The 1999 and 2004 instances of domestic violence by Shaun were not raised in these proceedings. Although the 1999 and 2004 incidents were mentioned at the December 2007 hearing, they were not sufficiently considered nor were relevant findings made at that time." And because the August 2008 hearing involved only visitation motions, Kal-indi was not required to raise all of her custody-related claims, even if she knew or should have known about them." Taking the competing policy considerations into account, we conclude that res judicata does not bar Kalindi's 2009 motion to modify eustody. Nor does the finality principle bar Kalindi from basing her 2009 motion on the 1999 and 2004 domestic violence incidents, any new claims of domestic violence occurring between 2005 and 2007, or claims of domestic violence occurring after the December 2007 hearing, because none of these undisputed or alleged incidents have been addressed by the superior court in its custody determinations. We also conclude that the 1999 and 2004 domestic violence incidents alone are sufficiently serious to provide a prima facie case for modification, and therefore a hearing is required." Kalindi, however, may be collaterally estopped from relitigating domestic violence allegations actually raised and adjudicated at the December 2007 hearing-"[elollateral estoppel, or issue preclusion, 'bars the relitigation of issues actually determined in [earlier] proceedings'" We require four elements before collateral es-toppel may be applied: (1) the party against whom preclusion is sought was a party or privy to the first action; (2) the issue is identical to the issue previously decided; (8) a final judgment on the merits was issued; and (4) the determination of the issue was essential to the final judgment." Those elements are present as to the 2005 to 2007 domestic violence allegations that were actually raised at the December 2007 hearing. We have noted that existence of those elements provides only the underlying basis for the trial court's exercise of discretion to apply or not apply collateral estoppel, and that "this discretion must be tempered by principles of fairness in light of the cireumstances of each particular case." For example, it may be unfair to apply collateral estoppel if the stakes in the first proceeding did not warrant a full and vigorous contest of the issue" or if the party against whom collateral estoppel is sought was otherwise precluded from fully and fairly contesting the issue." In its May 2010 order the superior court did not express any consideration of the fairness of applying collateral estoppel to the findings made in the December 2007 hearing and order, and the briefing before us does not adequately address the question. We therefore leave it to the superior court on remand to consider whether, under the facts of this case, applying collateral estoppel to the December 2007 findings regarding specific allegations of domestic violence in the 2005 to 2007 time frame would be fair to Kalindi. v. CONCLUSION We REMAND to the superior court for an evidentiary hearing consistent with this opinion on Kalindi's motion to modify custody. STOWERS, Justice, not participating. . - Kalindi asserts that she moved to modify custody at the August 2008 hearing, but this is not reflected in the record. At a June 2008 hearing Kalindi's attorney stated that he was planning to prepare a modification motion and asked how the court would respond and whether such a motion would affect the upcoming August visitation hearing. The court responded that it was up to the parties to decide whether to file motions, a modification motion would not affect the visitation hearing, and, if a modification motion were filed and a hearing warranted, the court would likely have to schedule the hearing for the fall. This discussion did not constituie a motion to modify custody. . See AS 25.24.150(g): 'There is a rebuttable presumption that a parent who has a history of perpetrating domestic violence against the other parent, a child, or a domestic living partner may not be awarded sole legal custody, sole physical custody, joint legal custody, or joint physical custody of a child." . See Romero v. Cox, 166 P.3d 4, 8 (Alaska 2007) ("[We judge a pro se litigant's [appellate] briefing by a less demanding standard." (internal quotation marks omitted)). . Alaska R.App. P. 218. . Barile v. Barile, 179 P.3d 944, 946 (Alaska 2008) (citing Harrington v. Jordan, 984 P.2d 1, 3 (Alaska 1999)). . - Id. (citing Harrington, 984 P.2d at 3). . Angleton v. Cox, 238 P.3d 610, 614 (Alaska 2010) (citing Smith v. C.S.K. Auto, Inc., 132 P.3d 818, 820 (Alaska 2006)). . See Bunn v. House, 934 P.2d 753, 757 n. 12 (Alaska 1997) (holding same in child support modification case). . See id. at 758. . Peterson v. Swarthout, 214 P.3d 332, 340-41 (Alaska 2009) (quoting Gratrix v. Gratrix, 652 P.2d 76, 82-83 (Alaska 1982)) (internal quotation marks omitted). . Bagby v. Bagby, 250 P.3d 1127, 1129 (Alaska 2011). . See Williams v. Barbee, 243 P.3d 995, 1002-03 (Alaska 2010) (holding in part that application of AS 25.24.150(g)'s rebuttable presumption was necessary in custody modification case where initial custody settlement agreement was made without addressing presumption and where parties had history of domestic violence during marriage); Michele M. v. Richard R., 177 P.3d 830, 831, 835-38 (Alaska 2008) (holding in 2006 custody dispute between unmarried parties that it was plain error for superior court not to determine whether father's actions in previous relationship amounted to "history of perpetrating domestic violence" even though court had alluded to domestic violence in findings from 2001 custody trial); see also Williams, 243 P.3d at 1001 (noting purpose of rebuttable presumption is to protect children from "severe and long-lasting effects" of domestic violence and "to decrease the likelihood that children would be placed in the custodial household where domestic violence exists"). . See Williams, 243 P.3d at 997, 1003 (noting application of AS 25.24.150(g)'s rebuttable presumption is "especially necessary" under such circumstances). . See id. at 1004 ("If pro se parties make allegations of domestic violence the superior court must inquire into the allegations and allow the parties to present evidence regarding the allegations."); id. ("'We hold today that where a superior court finds that domestic violence occurred, it must make express findings regarding whether the incident or incidents of domestic violence constitute a 'history of perpetrating domestic violence' under AS 25.24.150(h)."); Michele M., 177 P.3d at 837 (holding it was plain error for superior court not to make findings whether father's previous acts constituted history of domestic violence); see also AS 25.24.150(h) (defining 'history of perpetrating domestic violence" for purposes of AS 25.24.150(g)'s rebuttable presumption). . We note that at a June 2008 hearing the superior court discussed the upcoming August visitation hearing, urging the parties to focus on issues in the supervised visitation motion and stressing that the hearing was "not going to turn into a hearing for all purposes." We also note that such a requirement might put victims of domestic violence in a particularly difficult position because violence may be continuing, victims may "be afraid to confront {the] abuser in court, [and may] suffer from psychological effects such as post-traumatic disorder, anxiety, [and] depression." See Lisa Bolotin, Note, When Parents Fight: Alaska's Presumption Against Awarding Custody to Perpetrators of Domestic Violence, 25 Auraska L.Rev. 263, 269, 290 (2008) (citations omitted). . See Barile, 179 P.3d at 946-47. . Latham v. Palin, 251 P.3d 341, 344 (Alaska 2011) (quoting Jeffries v. Glacier State Tel. Co., 604 P.2d 4, 8 n. 11 (Alaska 1979). . Id. (citing Midgett v. Cook Inlet Pre-Trial Facility, 53 P.3d 1105, 1110 (Alaska 2002)). . Misyura v. Misyura, 242 P.3d 1037, 1040 (Alaska 2010). . Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1250 n. 29 (Alaska 2001) (considering application of collateral estoppel to administrative findings and noting that difference in amount at stake in proceedings could affect incentive to litigate issue (citing Restatement (SEeconp) or June-mEnts § 28(5) (1982))). . See, eg., Johnson v. Alaska State Dep't of Fish & Game, 836 P.2d 896, 908 & n. 17 (Alaska 1991) (considering application of collateral es-toppel to administrative findings and noting that application requires fairness determination, which entails whether prior proceeding met essential elements of adjudication, including adequate notice and right to present and rebut evidence and argument (citing ResraremEnt (Seconp) or JupemEnts § 83(2) (1982))).

6985725

Lonnie D. TAYLOR, Appellant, v. STATE of Alaska, Appellee

Taylor v. State

2011-09-16

No. A-10244

232

234

262 P.3d 232

262

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T19:02:37.665411+00:00

CAP

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

Lonnie D. TAYLOR, Appellant, v. STATE of Alaska, Appellee.

Lonnie D. TAYLOR, Appellant, v. STATE of Alaska, Appellee. No. A-10244. Court of Appeals of Alaska. Sept. 16, 2011. David D. Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.

1192

7161

OPINION MANNHEIMER, Judge. Lonnie D. Taylor appeals his conviction for second-degree theft (theft of property valued at $500 or more). In our previous decision in this case, Taylor v. State, Alaska App. Memorandum Opinion No. 5648 (September 22, 2010), 2010 WL 8719523, we concluded that the evidence presented at Taylor's trial was legally sufficient to support a finding that the stolen property (a specialty bicycle) was worth at least $500. However, we remanded Taylor's case to the superior court for reconsideration of Taylor's claim that, even though the evidence was minimally sufficient to prove that the bicycle was worth $500 or more, the evidence favoring the State on this point was so questionable or weak that the jury's verdict was against the weight of the evidence, and that the superior court therefore should have granted Taylor a new trial under Alaska Criminal Rule 88. Id. at *1-2. Pursuant to our directive, Superior Court Judge William B. Carey conducted a thorough review of the evidence at Taylor's trial. Judge Carey concluded that if he, himself, had been a juror at Taylor's trial, he would have had a reasonable doubt as to whether the bicycle was worth $500, and (based on this doubt) he would have voted to acquit Taylor. However, Judge Carey also found that this matter was reasonably debatable, and that reasonable jurors could reach a different conclusion on this issue. The judge declared that he "[did] not find that the evidence [of Taylor's guilt] was so slight and unconvincing that the [Jurors guilty] verdict can be [called] repugnant, unreasonable[,] or unjust." In other words, Judge Carey found that the jurors at Taylor's trial could reasonably conclude that the State had proved its case against Taylor beyond a reasonable doubt. The judge explained: "[The evidence] may not have been enough to convince {me] that the bike had a value of $500.00, but . I cannot find that the verdiet . was plainly unjust or unreasonable based on the nature of the evidence presented." For this reason, Judge Carey concluded that he should not grant Taylor a new trial under Criminal Rule 33. In this renewed appeal, Taylor argues that Judge Carey misunderstood the test for granting a new trial in this type of situation. Taylor notes that when a judge decides whether the verdict in a criminal case is against the weight of the evidence for purposes of Criminal Rule 33, the judge sits as a "thirteenth juror". The judge does not defer to the jury's assessments of witness credibility or the weight of the evidence; rather, the judge must reach their own independent assessment of the evidence. Based on these principles, Taylor argues that Judge Carey was obliged to grant Taylor a new trial once the judge concluded that he, personally, had a reasonable doubt as to whether the State had proved that the bicycle was worth at least $500. But even though a judge sits as a "thirteenth juror" in the sense that the judge is required to independently assess the weight of the evidence and the credibility of the witnesses without deference to the jury's view of these matters, Criminal Rule 33 does not vest judges with a veto power over every verdict that they personally disagree with. The judge should not grant a new trial under Rule 33 merely because the judge concludes that he or she would have reached a different verdict from the one the jurors rendered. Rather, as the Alaska Supreme Court declared in Dorman v. State, [A judge's authority to grant a new trial under Criminal Rule 33] should be exercised with caution, and . should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. 622 P.2d 448, 454 (Alaska 1981) (quoting Charles Wright, Federal Practice and Procedure (Criminal) (1969), § 558, Vol. 2, p. 487). Thus, the fact that the judge personally disagrees with the verdict does not, by itself, warrant the judge in ordering a new trial. As this Court explained in Howell v. State, 917 P.2d 1202, 1212 (Alaska App.1996), a judge should vacate a jury's verdict and grant a new trial under Criminal Rule 33 only when the evidence supporting that verdict "[is] so slight and unconvincing as to make the verdict plainly unreasonable and unjust". Beyond the fact of personal disagreement with the jury's decision, the judge must further conclude that the evidence is so one-sided that the jury's contrary view of the case is "plainly unreasonable and unjust". Accord: United States v. Ferguson, 246 F.3d 129, 133-34 (2nd Cir2001); United States v. Sanchez, 969 F.2d 1409, 1413-14 (2nd Cir.1992); State v. Spinale, 156 N.H. 456, 987 A.2d 988, 946-47 (2007); State v. Baird, 180 Vt. 248, 908 A.2d 475, 482 (2006); State v. Ladabouche, 146 Vt. 279, 502 A.2d 852, 856 (1985). See, in particular, the discussion of this point of law in In re Petition for Writ of Prohibition, 312 Md. 280, 589 A.2d 664, 683-87 (1988). After an extensive review of the case law and the legal commentary on this matter, the Maryland court concluded: We hold that [a trial judge has the] authority to weigh the evidence and to consider the credibility of witnesses when [the judge decides al motion for new trial.... [But wel do not embrace the thirteenth juror rule eo nomine [i.e., by that name], for . the very name of that rule may tend to produce confusion.... [A] trial judge is not at liberty to set aside a verdiet of guilt and to grant a new trial merely because the judge would have reached a result different from that of the jury's. Motions for new trial on the ground [that the verdict is against thel weight of the evidence are not favored and should be granted only in exceptional cases, when the evidence preponderates so heavily against the verdict that it would be a miscarriage of justice to let the verdict stand. In re Petition for Writ of Prohibition, 589 A.2d at 686-87. Judge Carey's written decision shows that he understood and correctly applied these principles. Although he personally would not have reached the same decision as the jurors who heard Taylor's case, he acknowledged that the evidence reasonably supported the jurors' decision, and he concluded that their verdict was not plainly unreasonable and unjust. Accordingly, Judge Carey correctly denied Taylor's motion for a new trial. The judgement of the superior court is AFFIRMED. . AS 11.46.130(a)(1). . Dorman v. State, 622 P.2d 448, 454 (Alaska 1981). . Kava v. American Honda Motor Company, Inc., 48 P.3d 1170, 1177 (Alaska 2002); New v. State, 714 P.2d 378, 381-82 (Alaska App.1986); Maloney v. State, 667 P.2d 1258, 1267-68 (Alaska App.1983). . Disapproved on other grounds in State v. Manck, 385 Md. 581, 870 A.2d 196 (2005).

6986233

Calvin L. McGAHUEY, Appellant, v. WHITESTONE LOGGING, INC. and Alaska Timber Insurance Exchange, Appellees

McGahuey v. Whitestone Logging, Inc.

2011-10-21

No. S-18742

613

622

262 P.3d 613

262

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T19:02:37.665411+00:00

CAP

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

Calvin L. McGAHUEY, Appellant, v. WHITESTONE LOGGING, INC. and Alaska Timber Insurance Exchange, Appellees.

Calvin L. McGAHUEY, Appellant, v. WHITESTONE LOGGING, INC. and Alaska Timber Insurance Exchange, Appellees. No. S-18742. Supreme Court of Alaska. Oct. 21, 2011. Rehearing Denied Nov. 10, 2011. Calvin L. MceGahuey, pro se, Crescent City, California, Appellant. Patricia L. Zobel, Delisio Moran Geraghty & Zobel, P.C., Anchorage, for Appellees. Before: CARPENETI, Chief Justice, FABE, WINFREE, CHRISTEN, and STOWERS, Justices.

4285

26577

OPINION STOWERS, Justice. I. INTRODUCTION A worker was involved in a fight in a logging camp bunkhouse. He did not file a report of injury related to the fight for over a year. When he finally filed a report of injury, he alleged that he had injured his hip, lower back, and ear in the fight. His employer controverted benefits because he did not give timely notice of the injury. The worker then alleged that he had verbally informed his supervisor of the injuries. After a hearing, the Alaska Workers' Compensation Board determined that the worker's claim was barred because he did not give his employer timely notice of the injury. The Board performed an alternative analysis assuming the worker had given timely notice and decided that the claim was not compensable. The Alaska Workers' Compensation Appeals Commission affirmed the Board's decision. Because the Commission correctly determined that substantial evidence in the record supports the Board's decision on the com-pensability of the claim, we affirm the Commission's decision. II FACTS AND PROCEEDINGS Calvin McGahuey worked for Whitestone Logging, Inc. on Afognak Island, near Kodiak, during the first half of 2004. He worked on a boom boat and also performed general work around the camp. In March 2004 he was involved in a fight in the bunkhouse. According to McGahuey one or two of his coworkers attacked him in his room. McGa-huey said that one of them slammed him into a table, injuring his back, and that to escape he had to jump out of a window that was 14 feet off the ground, injuring his hip. McGa-huey went to the cook's house; the cook directed him to Mike Knudsen, one of the camp supervisors. McGahuey said that he was limping visibly after the fight and that he reported the injury to several people in the camp, including John Rivers, another camp supervisor; Joe Bovee, an employee of a different company whom McGahuey considered a supervisor; and Knudsen. Rivers investigated the fight for White-stone. Rivers was the camp manager of Whitestone's Afognak logging camp from the beginning of 2004 to May 2004; he was also the only qualified EMT in the camp at the time of the fight. Rivers's investigation showed that McGahuey had talked on a shared telephone for what his bunkmates thought was too long. One of them disconnected the phone and cut off McGahuey's conversation. After "words were exchanged" a fistfight began, during which McGahuey was pushed into another bunkhouse resident, who "joined the fray." McGahuey "either exited through a window or elaimed he exited by a window." Rivers did not discipline McGahuey for the incident but gave written warnings to the other two men "for fighting in the bunkhouse and for being intoxicated." Rivers talked to McGahuey as part of the investigation either the night of the fight or the next day. At that time, Rivers observed that McGahuey's "face was red in places so it looked like he had been involved in a fist fight but nothing real severe." According to Rivers, McGahuey "complained about being sore" but did not tell him about any injuries to his back or hip. Rivers stated that he observed McGahuey walking the day after the fight and McGahuey was not limping. McGahuey returned to work the day after the fight; he missed no work after the altercation. McGahuey went to a doctor in Kodiak on May 25 for an ear problem. The medical record from the visit did not show that McGahuey reported the fight or any complaints related to it. The doctor treated McGahuey for impacted earwax. On June 4 Whitestone laid McGahuey off work so he could attend to certain family obligations, and McGahuey returned to California. He filed a report of injury for his earwax problem in August, and Whitestone paid for the May doctor visit because the doctor thought the problem could be work related. The first medical chart note that recorded McGahuey mentioning low back pain from the fight at Whitestone was a medical history form for chiropractic care dated April 4, 2005. On this form, McGahuey wrote that he had been in a work-related accident and had reported the accident to his employer but not to workers' compensation. He described his condition as "lower back injury and hip after the fight on the job" and reported pain that got worse with bending and working. . McGahuey filled out and signed a report of injury form, dated April 6, 2005, regarding the fight. Whitestone received the form in early May and filed a notice of controversion on June 16; the controversion said that Whitestone had not received timely notice of the injury, that McGahuey was intoxicated at the time of injury, and that the fight did not occur in the course and seope of employment. McGahuey did not submit other medical records showing he received continuing care for back pain. McGahuey underwent a medical examination on October 12, 2005, before beginning to work for Simpson Timber Company in California. In his medical history, McGahuey responded "not latlely]" to the question whether he was bothered by back pain. He also reported that he had not sought medical treatment for back pain and did not have a medical history of "persistent back pain" or "significant back injury." Notes from the evaluation indicated that McGahuey could lift 100 pounds and carry that weight 20 feet. On December 7, McGahuey was treated for lower back pain related to his work at Simpson; his doctor diagnosed a lumbar strain and ordered modified work for a week. An x-ray of the lumbar spine dated December 10 showed mild degenerative changes but was otherwise normal. - McGahuey also sought chiropractic care; the chiropractor released him to regular duty work on December 12. Imaging studies from March 2006 of McGahuey's lower back, right hip, and brain were all normal. McGahuey filed a written workers' compensation claim in Alaska on February 1, 2006, seeking $10,000 in medical costs and $10,000 in transportation costs. Whitestone controverted benefits, raising the same defenses it raised before. McGahuey amended his workers' compensation claim at a pre-hearing conference to include temporary total disability (TTD) and unfair or frivolous controversion. The Board held a hearing on McGahuey's claim on October 11, 2006. The employer and insurer were represented by the department manager for the Alaska Timber Insurance Exchange, and McGahuey represented himself. McGahuey testified about the fight, his injuries, and his verbal report of the injuries. The manager summarized White-stone's investigation of the fight and testified that Whitestone did not receive timely notice of injuries. In its November 2006 decision, the Board dismissed McGahuey's claim because he did not give the employer timely formal notice of the injury; it also found that none of the statutory excuses for a late-filed report applied. McGahuey appealed to the Alaska Workers' Compensation Appeals Commission. The Commission determined that the Board failed to apply the necessary presumption analysis and failed to make adequate findings, so it reversed the Board's decision and remanded the case to the Board for rehearing. The Board held a second hearing on McGahuey's claim on April 24, 2008. At the second hearing, Whitestone was represented by counsel who presented several witnesses who testified about the investigation of the fight, their observations of McGahuey after the fight, the lack of notice Whitestone had of an injury, and the prejudice Whitestone suffered as a result of the late-filed notice. McGahuey testified that he reported "the matters" to Bovee and Rivers McGahuey said he knew he was injured when he returned to California; he described his injury as "muscle tissue damage" to explain the lack of findings on imaging studies. MeGahuey stated that the first time he knew he could not work because of his Alaska injuries was after he aggravated the injury working for Simpson. Whitestone presented testimony from Rivers; Ronald Johnson, a camp manager at Afognak; Janelle Lepschat, an office worker at the Afognak camp; and Pamela Scott, the claims manager for its compensation carrier. Seott testified that she had not seen any medical reports taking McGahuey off work except for a note related to the Simpson injury. She testified that Whitestone had been prejudiced by McGahuey's late-filed notice because it was "no longer a . viable company" and it could not get an accurate medical evaluation because so much time had elapsed before the report of injury. Rivers testified about his investigation of the fight. According to Rivers, McGahuey did not report injuring his hip or back; Rivers said he would have sent McGahuey to Kodiak "as soon as a plane was available" if McGahuey had reported a back injury. Rivers did not "notice anything either verbal or non-verbal which would have indicated that [McGahuey had] sustained any kind of injury." Rivers said he was surprised when McGahuey filed the notice of injury because "generally when someone injures their back, it's an immediate pain or some indication that would cause them to say something to a supervisor." Johnson testified that he was the camp manager for Whitestone from February to November 2004. Johnson said MecGahuey never reported that he had been injured in the bunkhouse fight and noted that McGa-huey had not missed work as a result of the fight. Johnson indicated that he had never seen McGahuey limping or showing physical signs of injury, nor did anyone report to him as camp manager that McGahuey had made an injury claim. Lepschat, an office clerk at Whitestone's Afognak camp in 2004, testified that one of her responsibilities was completing report of injury forms and that no one asked her to complete a report of injury form on behalf of McGahuey. She also said that she drove McGahuey to retrieve some of his belongings before he left Afognak in June 2004 and that he never told her he was leaving because of an injury. In its decision after rehearing, the Board dismissed McGahuey's claim because he had not filed a timely written notice of injury and Whitestone "did not receive informal notice of the March 2004 injury." The Board found that McGahuey was not a credible witness and that Whitestone's witnesses were eredi-ble. It applied a presumption analysis to the notice question. The Board found that McGahuey "narrowly raised the presumption [concerning] sufficient notice as to injuries claimed from the March 2004 altercation" and then concluded that he "failed to attach the presumption that he gave notice to the employer of his March, 2004 alleged injury." The Board then assumed in the alternative that McGahuey had attached the presumption that he had given notice and decided that Whitestone had rebutted the presumption because McGahuey missed no work from the time of the fight until the time he left Afognak. It also found that Whitestone rebutted the presumption "on the notice issue" through the testimony of Johnson and Lepse-hat. The Board then weighed the evidence and decided that MceGahuey had not proved by a preponderance of the evidence that he had given timely notice of his injuries to Whitestone. The Board decided that White-stone "hald] established by a preponderance of the evidence that neither the employer or its agent had knowledge of the injury." It found that McGahuey did not show that his failure to give notice was exeused and that Whitestone was prejudiced by the lack of timely notice. The Board then performed a second alternative analysis assuming that McGahuey had given timely notice and evaluated his claims on the merits, using its three-step presumption analysis The Board decided that McGahuey had not presented enough evidence to attach the presumption of compens-ability because of "his lack of credibility." It then assumed in the alternative that he had attached the presumption and found that Whitestone had rebutted the presumption by pointing out gaps in the medical evidence and showing that McGahuey had a back condition prior to working for Whitestone. Finally, the Board decided that McGahuey had not proved his claim by a preponderance of the evidence because he was not credible and because the doctors who thought the back and hip complaints were work related relied on McGahuey's self-reported history when making the connection. McGahuey again appealed to the Commission; this time the Commission affirmed the Board's decision. The Commission decided that the Board had again erred in applying the presumption analysis to the notice issue. But the Commission considered this error harmless because of the Board's alternative analysis. The Commission first found that McGahuey had produced enough evidence to attach the presumption of sufficient notice to Whitestone and that Whitestone adequately rebutted the presumption. The Commission then concluded that substantial evidence in the record supported the Board's finding that McGahuey had not proved by a preponderance of the evidence that he had provided timely notice to Whitestone or that he was exeused from doing so. The Commission also decided that substantial evidence in the record supported the Board's finding that, assuming timely notice was given, McGahuey had not proved his injuries were work related. McGahuey appeals. III. STANDARD OF REVIEW In an appeal from the Workers' Compensation Appeals Commission, we re view the Commission's decision. We apply our independent judgment to questions of law that do not involve agency expertise. We independently review the Commission's conclusion that substantial evidence in the record supports the Board's findings, which "requires us to independently review the ree-ord and the Board's factual findings." IV. DISCUSSION The Commission affirmed the second Board decision, concluding that substantial evidence supported the Board's findings that: (1) McGahuey did not give Whitestone timely formal notice of his injuries; (2) Whitestone did not have actual knowledge of the injuries and was prejudiced by the lack of formal notice; and (8) McGahuey "did not suffer a disabling injury to his hip, back, and ear in March 2004." In reaching this conclusion, the Commission identified errors in the Board's application of the presumption analysis but decided the errors were harmless. We agree with the Commission that the Board erred in its application of the presumption analysis in this case; we also agree that the errors were harmless. A. Notice Alaska Statute 28.30.100(a) requires that written notice of an injury or death be given to the employer and the Board within 30 days of the date of injury or death. If written notice is not given as required, the claim is barred. Alaska Statute 23.30.100(d) provides that failure to give notice can be excused when either: (1) the employer had actual notice of the injury and was not prejudiced by lack of written notice or (2) the Board determines that notice could not be given "for some satisfactory reason." The Commission affirmed the Board's findings that McGahuey did not give timely formal notice and that Whitestone did not have actual notice and suffered prejudice as a result. We conclude that the Commission and the Board both erred in failing to identify when the 80-day period for giving written notice began, but that the error was harmless." The Board and the Commission both analyzed the compensability of McGahuey's claim, and because we decide that the ultimate resolution of the claim was correct, any errors in consideration of the notice issue were harmless. We held in Cogger v. Anchor House that the 30-day period for giving written notice "can begin no earlier than when a compensa-ble event first occurs." The date the 30-day period begins to run is important not only in determining whether formal notice was timely but also in assessing prejudice to the employer if notice was late. For example, in Dafermo v. Municipality of Anchorage a worker first complained about eye problems in 1985 or 1986, but doctors did not link the symptoms to his work with computers until September 1991." He filed a report of injury in November 1991." Although we held that his notice of injury was late, we decided that the employer was not prejudiced by failure to give timely notice because prejudice could only be measured from October 1991, and there was no evidence that the employer was prejudiced by a 80-day delay in notification." Neither the Commission nor the Board made a specific finding about when the 80-day period began to run in McGahuey's case. Without knowing when the 30-day limitations period began to run, we cannot assess whether the notice of injury was late or whether, if it was late, the employer suffered prejudice. But because the Commission correctly evaluated the Board's findings and conclusions on the compensability of McGa-huey's claim, this error was harmless. B. Compensability Of McGahuey's Injuries The Board performed an alternative analysis, assuming that McGahuey had given timely notice, and looked at the merits of his claim. McGahuey's claim was for medical treatment for his back and hip, in 2005 and afterwards, as well as medical treatment for a lump near his ear." The Commission reviewed the Board's compensability analysis and affirmed the Board's decision. McGa-huey asserts that the Board and Commission erred in finding that his claim was not com-pensable. Whitestone argues that the Commission correctly concluded that substantial evidence in the record supported the Board's findings. In a workers compensation case, the Board uses a three-step presumption analysis to evaluate the compensability of a worker's claim." At the first step, the employee must attach the presumption of com-pensability by establishing a link between his employment and the injury." For purposes of determining whether the claimant has established the preliminary link, only evidence that tends to establish the link is considered-competing evidence is disregarded." The Board "need not concern itself with the witnesses' credibility" when "making its preliminary link determination." In this case, the Board improperly considered McGahuey's credibility when it examined the evidence at the first stage of the analysis. Relying on dicta in Osborne Construction Co. v. Jordan," the Commission wrote that it was "a close question whether the [BlJoard erred in determining that McGahuey failed to raise the presumption of compensability because of 'his lack of credibility to effectively raise the presumption.'" To the extent the Commission suggested that the Board could consider eredi-bility at the first stage, it was mistaken. We have repeatedly stated that the Board cannot consider eredibility at the first stage of the presumption analysis." We agree with the Commission, however, that any error the Board made was harmless because the Board did an alternative analysis, assuming that MceGahuey had attached the presumption. If the presumption attaches, the second step of the presumption analysis provides that an employer may rebut the presumption by presenting substantial evidence that: (1) provides an alternative explanation which 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." The Board looks at the evidence to rebut the presumption in isolation, without weighing it." The Board found that Whitestone rebutted the presumption of compensability by showing that: (1) MeGahuey "did not complain about his back and relate his back condition to the March 2004 altercation until he saw doctors in late 2005 and 2006"; (2) McGahuey "had a back condition during the four years prior to the March 2004 injury"; (8) McGahuey failed to report an injury to his hip and back in May 2004, when he saw the doctor in Kodiak; and (4) no physician "independently" connected his work and his back pain, relying instead on MecGahuey's reports. The Commission correctly decided that the Board's conclusion-that Whitestone rebutted the presumption-was supported by evidence in the record. Whitestone presented evidence that McGahuey had been treated for low back pain in 2002 and possibly earlier. A preexisting back condition alone might not eliminate any reasonable possibility that his employment with Whitestone was a factor in causing later back pain." But a preexisting back condition together with the lack of contemporaneous complaints of back pain or evidence of a home-treatment regimen is adequate evidence to support a conclusion that the back pain MceGahuey reported in April 2005-more than a year after the fight-was not caused by the fight, particularly when the imaging studies from 2005 and 2006 were normal. As to the hip condition, Whitestone presented evidence that McGahuey was not limping in the days following the injury and that he did not report hip pain near the time of the fight. A March 2006 MRI of McGa-huey's hip was normal. This evidence supports the conclusion that any need for medical treatment of McGahuey's hip in 2005 and later was not related to his employment at Whitestone. Finally, with respect to the lump near McGahuey's ear, at least two doe-tors indicated in their chart notes that it was not work related. These opinions were adequate evidence to rebut the presumption of compensability. If an employer rebuts the presumption of compensability, at the third step of the analysis the burden shifts to the employee to prove his claim by a preponderance of the evidence." At the third stage, the Board was permitted to weigh the evidence and consider McGahuey's credibility." - The Board alone can determine witness credibili-4537. Because the Board found that McGahuey was not credible, the Commission correctly concluded that substantial evidence in the record supported the Board's decision. The only links between MeceGahuey's back and hip pain and the Whitestone fight were his testimony and his statements to doctors that the back and hip pain arose after the fight. After the Board determined that his account of the injuries was not credible, there was no evidence to establish the compensability of any of his injuries The normal imaging studies of his back and hip likewise provided evidence that he did not suffer a compensa-ble injury. The same analysis applies to the Iump near McGahuey's ear, which was later determined to be a lipoma. Although at least one doctor indicated that the lipoma could be associated with trauma, the link between trauma and the fight at the Afognak camp depended on the Board's believing McGa- huey's account of the fight and his resulting injuries. The Board's finding that McGa-huey was not credible removed any causal link between his employment and the lipoma. The Commission did not err in concluding that substantial evidence supported the Board's finding that McGahuey did not prove his claim by a preponderance of the evidence. V. CONCLUSION For the foregoing reasons, we AFFIRM the Commission's decision. / . AS 23.30.120(a) creates a presumption that "sufficient notice of the claim has been given" as well as a presumption that a claim is compensa-ble. See DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000) (citations omitted) (applying presumption - analysis to - compensability of claim). In its first decision, the Board did not mention these presumptions. . See DeYonge, 1 P.3d at 94 (summarizing presumption analysis). . Shehata v. Salvation Army, 225 P.3d 1106, 1113 (Alaska 2010) (citing Barrington v. Alaska Commc'ns Sys. Grp., Inc., 198 P.3d 1122, 1125 (Alaska 2008). . Id. . Smith v. CSK Auto, Inc., 204 P.3d 1001, 1007 (Alaska 2009). . See AS 23.30.100(d) (setting out circumstances when failure to give notice does not bar a claim). . We agree with the Commission that any informal notice McGahuey gave to Bovee of his injuries was not notice to Whitestone. Bovee did not work for Whitestone. Even if he had, we have held that informal notice of an injury to a coworker does not give notice to an employer under AS 23.30.100. Cogger v. Anchor House, 936 P.2d 157, 161 (Alaska 1997). . Carlson v. Doyon Universal-Ogden Servs., 995 P.2d 224, 228 (Alaska 2000). . 936 P.2d at 160. . 941 P.2d 114, 115-16 (Alaska 1997). . Id. at 116. . Id. at 117-19. . McGahuey made a claim for TTD, but it is not clear during what period of time McGahuey thought he was eligible for TTD. . Smith v. Univ. of Alaska, Fairbanks, 172 P.3d 782, 788 (Alaska 2007) (citing Bradbury v. Chu-gach Elec. Ass'n, 71 P.3d 901, 905 (Alaska 2003)). . Id. . Tolbert v. Alascom, Inc., 973 P.2d 603, 610 (Alaska 1999). . Resler v. Universal Servs., Inc., 778 P.2d 1146, 1148-49 (Alaska 1989). . 904 P.2d 386, 392 (Alaska 1995). . Excursion Inlet Packing Co. v. Ugale, 92 P.3d 413, 417 (Alaska 2004); DeYonge v. NANA/Marriott, 1 P.3d 90, 95 (Alaska 2000); Carlson v. Doyon. Universal-Ogden Servs., 995 P.2d 224, 228 (Alaska 2000); Tolbert, 973 P.2d at 610; Resler, 778 P.2d at 1148-49. . Smith v. Univ. of Alaska, Fairbanks, 172 P.3d 782, 788 (Alaska 2007) (citing Bradbury v. Chu-gach Elec. Ass'n, 71 P.3d 901, 906 (Alaska 2003)). . Stephens v. ITI/Felec Servs., 915 P.2d 620, 624 (Alaska 1996) (citing Veco, Inc. v. Wolfer, 693 P.2d 865, 869 (Alaska 1985)). . We recognize that McGahuey indicated that he reported fight-related injuries to the Kodiak doctor. But the medical record from the visit did not show complaints related to any fight related injuries. Examining the chart notes in isolation supports Whitestone's contention that McGahuey did not discuss any fight-related injuries with the doctor in May 2004. . See Burgess Constr. Co. v. Smallwood, 623 P.2d 312, 315 (Alaska 1981) (holding that a preexisting condition does not disqualify a claim if the employment aggravated the condition to produce injury or disability). . Smith, 172 P.3d at 788 (citing Bradbury, 71 P.3d at 906). . Id. . Steffey v. Municipality of Anchorage, 1 P.3d 685, 691 (Alaska 2000) (citing Stephens v. ITI/Felec Servs., 915 P.2d 620, 627 (Alaska 1996)). . AS 23.30.122. . A lipoma is a "benign tumor of chiefly fatty cells." Weester's II New Cornees Dictionary 654 (3d ed. 2005).

10370125

Robert DARLING, d/b/a Darling Enterprises, Appellant, v. STANDARD ALASKA PRODUCTION COMPANY, Exxon Corporation, Union Oil Company of California, Amoco Production Company, Cook Inlet Region, Inc., Nana Regional Corporation, Inc., Doyon Limited and Arco Alaska, Inc., Appellees

Darling v. Standard Alaska Production Co.

1991-10-17

No. S-3777

677

683

818 P.2d 677

818

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:02:39.964286+00:00

CAP

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

Robert DARLING, d/b/a Darling Enterprises, Appellant, v. STANDARD ALASKA PRODUCTION COMPANY, Exxon Corporation, Union Oil Company of California, Amoco Production Company, Cook Inlet Region, Inc., Nana Regional Corporation, Inc., Doyon Limited and Arco Alaska, Inc., Appellees.

Robert DARLING, d/b/a Darling Enterprises, Appellant, v. STANDARD ALASKA PRODUCTION COMPANY, Exxon Corporation, Union Oil Company of California, Amoco Production Company, Cook Inlet Region, Inc., Nana Regional Corporation, Inc., Doyon Limited and Arco Alaska, Inc., Appellees. No. S-3777. Supreme Court of Alaska. Oct. 17, 1991. Mark A. Sandberg and Henry J. Camar-ot, Sandberg & Smith, Anchorage, for appellant. John M. Conway and Craig F. Stowers, Atkinson, Conway & Gagnon, Anchorage, for appellees. Before RABINOWITZ, C.J., and MATTHEWS, COMPTON and MOORE, JJ.

4105

26191

OPINION RABINOWITZ, Chief Justice. Robert Darling filed suit against the owners and operators of the Endicott Island production facility, claiming they had appropriated cinder blocks of his design in protecting against shore erosion. The superior court held that Darling's claim was preempted by federal patent law, and granted summary judgment against Darling. We affirm. I Endicott Island is a forty-five acre artificial island, located in the Beaufort Sea, approximately fifteen miles from Prudhoe Bay. It was constructed for oil exploration and production. Construction of the island was completed in 1987. The island and connecting causeway consist of nearly seven million cubic yards of gravel. The island is protected from erosion, waves, and polar ice by a shore protection system consisting of a mat of interconnected concrete blocks. Robert Darling, a Fairbanks entrepreneur, designed and sold a system of linked concrete blocks, called Linkrete, for use in shore protection in arctic conditions. Darling believed that the owners of Endicott appropriated the Linkrete design from him without authorization or compensation. Darling filed suit for unjust enrichment against Standard Alaska Production Company, the operator and owner of the largest share of the project, and the other owners of Endicott ("Standard"). Darling first designed Linkrete in 1980. He asserts that he was contacted by Exxon and Sohio Alaska Petroleum Company ("So-hio"), Standard's predecessor, and in 1980 sold each of them samples of Linkrete for test purposes. Later, thinking that Exxon would be the operator of the Endicott project, Darling presented a seminar on Linkrete for Exxon's engineering firm. When it became clear that Sohio would be the operator of the Endicott project, Darling communicated with the engineering firms of Ralph M. Parsons Company ("Parsons"), and Tekmarine, Inc. ("Tekma-rine") and supplied them with information about Linkrete. From August 21, 1984 to March 26, 1986, Darling's patent application was under consideration, and Darling notified Sohio that he had a patent pending on Linkrete. In 1984, when Sohio put the shore protection system up for bid, Darling informed Sohio that the system it had specified in its bid might infringe on his pending patent. The parties seem to have assumed that Darling had rights in Linkrete, but apparently the subject never was discussed directly. Standard never contracted with Darling for any aspect of the work on Endicott Island, or for any services related to Lin-krete. The Endicott shore protection system was manufactured and installed by Tekmarine and Parson; Standard paid $520,353 for it. Darling filed suit in superior court on January 22, 1988. Darling did not allege any tort or breach of contract. Rather, he sought both compensatory and punitive damages based on an unjust enrichment claim. Standard moved for summary judgment and to strike Darling's demand for a jury trial. For the purposes of summary judgment, and thus, for the purposes of this appeal, Standard admits that Darling invented Linkrete, that Standard used Darling's Linkrete design in constructing Endi-cott Island and that Standard never compensated Darling. After a hearing, the superior court granted summary judgment to Standard dismissing Darling's unjust enrichment claim on the ground that federal patent law precluded a suit for unjust enrichment based on an unpatented invention. The superior court also granted partial summary judgment to Standard on Darling's claim for punitive damages, and granted Standard's motion to strike Darling's demand for a jury trial. Darling appeals the superior court's grant of summary judgment as to his unjust enrichment claim, the grant of partial summary judgment as to punitive damages, and the denial of his demand for a jury trial. II Darling bases his unjust enrichment claim on "quasi-contract" or "contract-implied-in-law" theories. Unjust enrichment does not depend on any actual contract, or any "agreement between the parties, objective or subjective." Alaska Sales and Serv., Inc. v. Millet, 735 P.2d 743, 746 (Alaska 1987). In Alaska Sales, we noted that "unjust enrichment is not in and of itself a theory of recovery. Rather, it is a prerequisite for the enforcement of restitution; that is, if there is no unjust enrichment, there is no basis for restitution." Id. Alaska Sales identified three elements of a claim sounding in quasi-contract for unjust enrichment: 1) a benefit conferred upon the defendant by the plaintiff; 2) appreciation by the defendant of such benefit; and 3) acceptance and retention by the defendant of such benefit under such circumstances that it would be inequitable for him to retain it without paying the value thereof. Id. For purposes of this appeal, Standard does not dispute that it received a benefit from Darling and that it appreciated that benefit. Therefore, we must address whether considerations of equity will permit Standard to retain the benefit without compensating Darling. Federal patent law grants inventors limited protection from exploitation of their inventions by others. "The applicant whose invention satisfies the requirements of novelty, nonobviousness, and utility . is granted 'the right to exclude others from making, using, or selling the invention throughout the United States' for a period of 17 years." Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 150, 109 S.Ct. 971, 977, 103 L.Ed.2d 118 (1989) (quoting 35 U.S.C. § 154). Federal patent law recognizes two conflicting objectives. "The tension between the desire to freely exploit the full potential of our inventive resources and the need to create an incentive to deploy those resources is constant." Id. at 152, 109 S.Ct. at 978. The United States Supreme Court, however, has held that "free exploitation of ideas will be the rule, to which the protection of a federal patent is the exception." Id. at 151, 109 S.Ct. at 978. Whatever unfairness inheres in allowing the free exploitation of ideas must give way to the greater societal benefit of achieving the full potential of our inventive resources, unless the federal government has granted the protection of a patent. Under the supremacy clause of the United States Constitution, federal patent law preempts state awards of patent-like protection. "[S]tate regulation of intellectual property must yield to the extent that it clashes with the balance struck by Congress in our patent laws." Id. at 152, 109 S.Ct. at 978. Thus, in Bonito, the United States Supreme Court struck down a Florida law which prevented manufacturers from copying an unpatented boat design. See also Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964) (state may not award damages based on unfair competition laws where Sears had merely copied the design of a lamp which was in the public domain and did not have the protection of a valid patent); Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964) (states may not prevent or impose liability for copying or selling copies of unpatented items). Significantly, in Sears, the designer of the lamp originally had been issued patents, but the patents were later held invalid due to the obviousness of the design. The Supreme Court recognized that denial of a patent had the same effect as expiration of a patent and placed the product in the public domain, allowing free exploitation. 376 U.S. at 231, 84 S.Ct. at 789. However, not all forms of state protection are preempted by federal patent law. Bonito noted that Sears did not "prohibit the States from regulating the deceptive simulation of trade dress or the tortious appropriation of private information." 489 U.S. at 154, 109 S.Ct. at 979. Kewanee Oil v. Bicron Corp., 416 U.S. 470, 94 S.Ct. 1879, 40 L.Ed.2d 315 (1974), held that state protection of trade secrets did not conflict with federal patent law. Kewanee further noted that trade secret laws protect rights, such as privacy, which are beyond the economic sphere and provide less monopolistic protection than patent law. Id. at 487, 94 S.Ct. at 1889. Moreover, patent law is not intended to protect "industrial espionage." Federal patent law does not necessarily prohibit states from enforcing valid contracts under state contract law when such contracts provide protection for unpatented products. Bonito, 489 U.S. at 156, 109 S.Ct. at 980; Aronson v. Quick Point Pencil Co., 440 U.S. 257, 99 S.Ct. 1096, 59 L.Ed.2d 296 (1979). In Aronson, Aronson had invented a unique keyholder and applied for a patent. Before the design was placed in the public domain, Aronson negotiated a royalty contract with Quick Point, which then began manufacturing the key-holders. After her patent application had been denied, and other manufacturers were free to copy the keyholder, Quick Point sued for a declaratory judgment that federal law preempted the enforceability of the contract.. The Supreme Court held that parties may contract to pay royalties for an unpatented product which is not in the public domain, and that state courts may award damages for breach of such a contract. Here, Standard asserts that Sears allows Standard to exploit Linkrete because Linkrete is in the public domain. Darling distinguishes Sears and Bonito by arguing that his claim against Standard does not conflict with the policies underlying federal patent law. . Darling does not deny that anyone other than Standard could copy and use Linkrete with impunity. Nevertheless, Darling asserts that he is entitled to recover against Standard on the basis that they had a relationship and Standard used that relationship to unfairly exploit him. Darling argues that Aronson is particularly supportive of his position because a cause of action in quasi-contract, like a cause of action in contract, only accrues when the parties have a relationship. Thus, Darling concludes, "[ajfter Aronson, it is clear that Darling and the owner companies could have validly contracted for the use of Linkrete. There is no reason that a claim in quasi contract should be treated differently." In urging that his claim against Standard is not contrary to the policies underlying federal patent law, Darling correctly notes that both Kewanee and Aronson allowed state law protection of intellectual property because the protection in those instances "was not offensive to federal patent policies." Aronson, 440 U.S. at 266, 99 S.Ct. at 1101. However, Darling fails to identify how enforcement of his claim would not offend federal patent policies. Federal policy both encourages disclosure of ideas and innovation and demands "substantially free trade in publicly known, unpatented [products]." Bonito, 489 U.S. at 156, 109 S.Ct. at 980; see also Sears, 376 U.S. at 231, 84 S.Ct. at 789; Lear, Inc. v. Adkins, 395 U.S. 653, 670, 89 S.Ct. 1902, 1911, 23 L.Ed.2d 610 (1969). Here, Darling voluntarily disclosed his idea without obtaining an agreement for compensation. In such circumstances, enforcement of Darling's unjust enrichment claim would clearly hamper free exploitation of ideas which are in the public domain, without affecting the existing incentives inventors have for disclosure. Those inventors who require assurance of compensation before disclosure might be affected by whether Darling has a claim in unjust enrichment. Yet, those inventors can already protect themselves by patent, contract, or trade secret. Those who voluntarily disclose without rending an assurance of compensation would be the only inventors affected by a ruling in Darling's favor. Therefore, it is unnecessary to rule in Darling's favor to further the federal policy of disclosure. Finally, because Darling has not shown that his claim comports with federal policy, Darling cannot establish that any injustice has occurred. Federal policy discourages monopoly pricing unless a valid patent is in force. Here, Darling was seeking the right to charge Standard a price above that controlled by the free market. Unless federal policy requires otherwise, denying Darling this right does not create an injustice. In short, because Linkrete was in the public domain and because Darling asserted no basis for his claim other than injustice based on his disappointed expectations, we conclude that he failed to establish the elements of a claim for unjust enrichment. We think it determinative that Darling relied exclusively upon his patent application for protection of his rights in Linkrete. This alone distinguishes this case from Ar-onson, where the inventor had sought protection by contract. Here, Darling and Standard conferred about Linkrete with the knowledge that Darling had applied for a patent. The record reveals that Darling sought no further protection of his alleged design, either contractual or promissory. Darling relied exclusively on his patent application to protect his rights. When the federal government denied Darling's patent, Darling's shore protection design was copyable by anybody who obtained the idea through legal and non-confidential means. In short, where an inventor applies for a patent on a product, and relies solely on that patent application to protect his or her rights, the inventor cannot obtain restitution for unjust enrichment from a party who copies and uses that product if the patent application is ultimately rejected. In conclusion, we hold that Darling has failed to present a genuine issue of material fact as to the third element of his unjust enrichment claim: whether it would be unfair to allow Standard to retain the benefits it obtained from Darling without compensating him. Ill The superior court's grant of summary judgment dismissing Darling's claim for restitution based on unjust enrichment is AFFIRMED. BURKE, J., not participating. . Darling alleges that Parsons and Tekmarine were agents of Standard; Standard asserts that they were independent contractors. The decision of the superior court did not turn on this determination! . In March 1986, the federal patent office denied Darling's application, concluding that the purported design was obvious in light of existing technology. .For example, in a letter dated May 14, 1984, Darling wrote to Tekmarine stating that Lin-krete would be marketed under a trade name, and that a patent was pending. The record also contains project notes prepared by Parsons summarizing a meeting with Darling on June 14, 1984. The meeting was attended by representatives of Parsons, Tekmarine, and Sohio. The project notes state that Linkrete was patented. Additionally, the record contains a letter of October 5, 1984 from Darling's patent attorney to Sohio, noting that the Invitation to Bid for shore protection for Endicott Island "indicates a preference for the shore protection system which comes within the scope of [the applied for patent]." . In its decision, the superior court stated: It is undisputed that Plaintiff possessed no patent on his claimed invention of the shore protection system design. It is clear from the allegations contained in Plaintiffs Complaint and his other pleadings, and it is also clear from the evidence submitted, that Plaintiffs claimed shore protection system design was publicly known and publicly disclosed, and was so obvious that persons skilled in the shore protection art readily could have developed the Plaintiffs design. Under authority of Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 109 S.Ct. 971, 103 L.Ed.2d 118 (1989); Sears Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964); and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964), the court concludes that Plaintiffs claimed shore protection system design was in the public domain, and that Defendants were legally entitled to freely copy and use that shore protection system design. Because Defendants received nothing more than that which they were legally entitled to use, Defendants were not unjustly enriched. The Court further concludes that Plaintiffs unjust enrichment claim is preempted under federal patent law and federal preclusion principles as applied to the States by the Supremacy Clause of the United States Constitution. Therefore, Defendant's Motion to Dismiss Unjust Enrichment Claim is Granted. The court also awarded summary judgment on the alternative theory: "since the full value or value was paid, unjust enrichment cannot be obtained against the Defendants in this case." . The superior court filed findings of fact upon which it based its grants of summary judgment and partial summary judgment. However, these findings are not subject to deferential review. Moore v. State, 553 P.2d 8, 15 n. 3 (Alaska 1976). Rather, "the standard of review for summary judgment is to determine whether the moving party is entitled to judgment on the law applicable to the established facts." Reed v. Municipality of Anchorage, 741 P.2d 1181, 1184 (Alaska 1987). Our review is de novo, and we will "adopt the rule of law that is most persuasive in light of precedent, reason and policy." Langdon v. Champion, 745 P.2d 1371, 1372 n. 2. (Alaska 1987) (citations omitted). If the grant of summary judgment depends on a finding of fact, we examine the record on appeal, and, viewing the facts in the light most favorable to the non-moving party, determine whether a material issue of fact exists regarding any of the predicate facts supporting the grant of summary judgment, and whether the moving party is entitled to judgment as a matter of law. Zeman v. Lufthansa German Airlines, 699 P.2d 1274 (Alaska 1985). . Not all benefits conferred without compensation constitute unjust enrichment. For example, when benefits are "given gratuitously" and "without expectation of payment," courts will allow the recipient to retain the benefit without compensating the provider. Sparks v. Gustafson, 750 P.2d 338, 342 (Alaska 1988) (citing Murdock-Bryant Constr. v. Pearson, 146 Ariz. 48, 703 P.2d 1197, 1203 (1985)). In Sparks, however, we upheld a finding of unjust enrichment because the evidence showed no gratuitous intent on the part of the plaintiff. There, the ' plaintiff had provided various business services, which were not of the type "one would ordinarily expect to receive from a friend as a mere gratuity." Id. at 343. Here, Darling alleged in his complaint that "[a] II of the disclosures made by Mr. Darling to the defendants or their representatives were made with the expectation . that Mr. Darling would receive monetary compensation were his system used." Darling did not act out of friendship; there is no dispute that the relationship between Darling and Standard was a business relationship. The mere existence of a business relationship, however, does not establish the element of injustice. "[C]ompensation [is not] mandated where the services were rendered simply in order to gain a business advantage." Bloomgarden v. Coyer, 479 F.2d 201, 211 (D.C.Cir.1973) (footnote omitted). . Article VI, clause 2 of the United States Constitution provides: This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.... . Kewanee additionally noted that state trade secret protection still allowed the public to exploit unpatented products in the public domain through reverse engineering or independent creation. Id., 416 U.S. at 490, 94 S.Ct. at 1890. . The superior court found, and Darling does not dispute, that Linkrete was in the public domain. . Darling expressly disavows any recovery for the value of his services under a quantum meru-it theory. He states in his brief, "Darling's claim does not sound in quantum meruif (emphasis in original). Therefore, Darling's claim must stand upon his rights in intellectual property. .Whether Darling could in fact enforce a licensing agreement for the use of Linkrete is doubtful, given that Linkrete was in the public domain, and that Darling was relying on his patent application to protect his rights. See Aronson, 440 U.S. at 263, 99 S.Ct. at 1099-1100. Importantly, Darling had no contract; Aronson clearly rests on freedom of contract principles. Id. at 262-63, 99 S.Ct. at 1099-1100. Moreover, Aronson does not support Darling's argument that the policies underlying federal patent law only apply against the world, and not to individual agreements. Aronson explicitly avoids overruling two previous cases, which disallowed enforcement of valid contracts that interfered with federal policy. See Aronson, 440 U.S. at 264-65, 99 S.Ct. at 1100-01, citing Lear, Inc. v. Adkins, 395 U.S. 653, 89 S.Ct. 1902, 23 L.Ed.2d 610 (1969) (if patent underlying royalty agreement is declared invalid, manufacturer need not pay royalties from time that it challenges validity of patent, even though required to do so by contract); Brulotte v. Thys Co., 379 U.S. 29, 85 S.Ct. 176, 13 L.Ed.2d 99 (1964) (contractual obligation to pay royalties based on a patent may not be enforced beyond the life of the patent), reh'g denied, 379 U.S. 985, 85 S.Ct. 638, 13 L.Ed.2d 579 (1965). Both these cases refute Darling's contention that federal policy only operates to prevent state law enforcement of "rights against the world." Both cases .also establish that the equities do not require enforcement of an inventor's contractual rights where those rights conflict with federal patent policy. See, e.g., Lear, 395 U.S. at 670, 89 S.Ct. at 1911 ("the equities of the licensor do not weigh very heavily when they are balanced against the important public interest in permitting full and free competition in the use of ideas which are in reality a part of the public domain."). In Lear, the equities in favor of enforcement were stronger than in the instant case, given the contract; yet, here, Darling must show inequity as a matter of law. By reaffirming Lear and Brulotte, Aronson emphasizes the importance of a valid patent to protect rights in intellectual property. In Aron-son, the contract survived because "the parties resolved the uncertainties by their bargain." 440 U.S. at 264, 99 S.Ct. at 1100. Darling, on the other hand, never resolved the uncertainties in his relationship with Standard. . Darling quotes Matarese v. Moore-McCormack Lines, 158 F.2d 631, 634 (2nd Cir.1946), for the proposition that "[t]he doctrine [of unjust enrichment] is applicable to a situation where, as here, the product of an inventor's brain is knowingly received and used by another to his own great benefit without compensating the inventor." Id. However, in Matarese, the manufacturer had made an explicit promise of compensation to the inventor. Moreover, the inventor later obtained a patent. The Matarese court noted the importance of this fact, stating that recovery in unjust enrichment would only exist if the plaintiffs idea was novel and created a property right. Id. at 634. Here, the denial of Darling's patent establishes that Darling had no property right in his design. Therefore, under Matarese, he cannot maintain a suit in unjust enrichment based on the exploitation of unprotected ideas. . We do not address whether federal patent law forecloses other causes of action surrounding the same course of dealing, e.g. fraud, misrepresentation, quantum meruit, or promissory estoppel. Darling has not plead any claims for relief grounded on these theories. Accordingly, the cases cited by Darling are distinguishable. See Ocor Products Corp. v. Walt Disney Productions, 682 F.Supp. 90 (D.N.H.1988) (unjust enrichment claim may rest on a breach of an express agreement not to copy a design; design was provided to defendant only upon defendant's promise not to copy and reproduce it); Marcraft Recreation Corp. v. Frances Devlin Co., 459 F.Supp. 195 (S.D.N.Y.1978) (claim for quantum meruit may be based on value of technical services provided; here, plaintiff had also alleged a breach of contract based on an express agreement for exclusive merchandising); Roberts v. Sears, Roebuck & Co., 471 F.Supp. 372 (N.D.Ill.1979) (following rescission of a fraudulently induced licensing contract, courts may award restitution based on the unjust enrichment of the fraudulent party), cert. denied, 449 U.S. 975, 101 S.Ct. 386, 66 L.Ed.2d 237 (1981). Darling believes that the following statement from Aronson provides implicit support for his unjust enrichment theory: "[i]n negotiating the [license] agreement, Mrs. Aronson disclosed the design in confidence. Had Quick Point tried to exploit the design in breach of that confidence, it would have risked legal liability." 440 U.S. at 263, 99 S.Ct. at 1100. Here, Darling does allege in his complaint that defendants assured him that the information he provided in 1983 and 1984 would remain confidential. However, he admits that the earlier disclosures of Linkrete were made only with the subjective "expectation that he would receive compensation." His complaint does not allege a breach of confidentiality. Significantly, Darling's response to a perceived threat to his rights was a letter from his patent attorney invoking his patent rights. This letter does not mention promises, confidentiality, reliance, or other possible protection of his interests. Moreover Darling does not deny that Linkrete was in the public domain at the time that Standard built Endicott Island. These facts preclude recovery in unjust enrichment. . Given this holding, it is unnecessary to address Darling's remaining specifications of error.

6985732

Earl N. RAY, Appellant, v. STATE of Alaska, Appellee

Ray v. State

2011-09-16

No. A-10565

234

237

262 P.3d 234

262

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T19:02:37.665411+00:00

CAP

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

Earl N. RAY, Appellant, v. STATE of Alaska, Appellee.

Earl N. RAY, Appellant, v. STATE of Alaska, Appellee. No. A-10565. Court of Appeals of Alaska. Sept. 16, 2011. Kelly R. Taylor, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.

1064

6887

OPINION MANNHEIMER, Judge. In October 1995, Earl N. Ray was convicted of two counts of first-degree sexual assault and one count of second-degree sexual assault. These convictions stemmed from a criminal episode that occurred in May 1994-approximately three months before Alaska's Sex Offender Registration Act, AS 12.63, took effect. (The Act took effect on August 10, 1994.) Ray served thirteen years in prison, and then he was released on probation in September 2007. Fifteen months later, the State filed a petition to revoke Ray's probation, alleging that he violated the conditions of his probation by contacting a member of the victim's family. Superior Court Judge Beverly J. Cutler ultimately found that Ray had violated the conditions of his probation. She sentenced Ray to serve 1 year of his previously suspended jail time, and she further ordered that when Ray was released to probation again (after serving the year in prison), he would have to register as a sex offender under AS 12.63 during the remainder of his term of probation. Ray now appeals the portion of the superi- or court's order requiring him to register as a sex offender. During her remarks at Ray's probation revocation sentencing hearing, Judge Cutler acknowledged that sex offender registration was not "mandatory" for Ray's offenses, but the judge suggested that she nevertheless had the discretion to require Ray to register as a sex offender as one of the conditions of his probation. The State now concedes that this was wrong. We decided this point of law in Whitehead v. State, 985 P.2d 1019 (Alaska App.1999). The defendant in Whitehead was convicted of coercion under AS 11.41.5830. Coercion is not one of the offenses listed in AS 12.63.100 that trigger a defendant's obligation to register as a sex offender. Nevertheless, because of the particular facts of Whitehead's case, the sentencing judge concluded that Whitehead should be required to register as a sex offender. (As part of the plea bargain in Whitehead's case, the State dismissed several sexual assault charges that would have triggered sex offender registration.) Accordingly, the sentencing judge imposed a special condition of probation which required Whitehead to comply with the registration requirements of AS 12.68 during his term of probation. We held that a sentencing judge has no authority to impose such a condition of probation: In a series of cases starting with Boyne v. State, [586 P.2d 1250 (Alaska 1978),] the Alaska Supreme Court and this court have held that sentencing courts must have explicit legislative authorization before imposing conditions of probation that fundamentally alter the nature of the probation. For instance, in Boyne itself, the supreme court held that a sentencing court may not impose imprisonment as a condition of SIS probation. [Id. at 1251.] . Sex offender registration is obviously less burdensome than incarceration. We are mindful that probationers have traditionally been required to apprise their probation officers of their place of residence and their place of employment. Nevertheless, sex offender registration entails more than simply informing a probation officer of one's residence and place of employment. Under the sex offender registration law, a defendant must supply this information (as well as other personal information) for dissemination to the public at large. . [TJhe Alaska Legislature specifically amended Criminal Rule 11(c) to require judges to inform defendants about the sex offender registration requirement before accepting a guilty plea to a sex offense. [citation omitted] We inferred, from the legislature's action, that the legislature viewed sex offender registration as a serious consequence of conviction and "that the legislature believed it would be unfair to allow defendants to plead guilty to a sex offense without first telling them about the registration requirement." [Peterson v. State, 988 P.2d 109, 118 (Alaska App. 1999).] For similar reasons, we [now] conclude that we should not construe [the probation statutes] to allow sentencing judges to impose sex offender registration as a condition of probation when the legislature has not expressly authorized sentencing courts to exercise this power. Whitehead, 985 P.2d at 1021 (text of footnotes included as bracketed text). Nine years after we issued our decision in Whitehead, the Alaska Supreme Court issued its decision in Doe v. State, 189 P.3d 999 (Alaska 2008). In Doe, the supreme court ruled that sex offender registration is a criminal punishment for purposes of Article I, Section § 15 of our state constitution-the provision that bars the legislature from enacting ex post facto crimes or punishments. In other words, the supreme court held that it is unconstitutional to apply the Sex Offender Registration Act to defendants like Ray whose crimes were committed before the Act took effect. The supreme court's decision in Doe is significant here, not for the court's ultimate conclusion that sex offender registration constitutes punishment for ex post facto purposes, but rather for the supreme court's reasoning. In reaching the conclusion that sex offender registration constitutes "punishment", the supreme court relied heavily on the fact that sex offender registration imposes "significant and intrusive" obligations on a defendant, as well as a "severe stigma". Doe, 189 P.3d at 1009. The supreme court further noted that registration exposes defendants to "profound humiliation and community-wide ostracism", with the attendant possibility that the defendant "will be denied employment and housing opportunities as a result of community hostility". Id. at 1009-1010. The supreme court's analysis in Doe lends significant strength to our decision in Whitehead-our conclusion that requiring a defendant to register as a sex offender as a condition of their probation fundamentally alters the nature of the probation, and that therefore a sentencing court has no power to impose such a condition of probation in the absence of express statutory authority. We therefore re-affirm our holding in Whitehead-and, on the basis of Whitehead, we accept the State's concession of error in this case. The challenged condition of probation is unlawful, and that aspect of the superior court's sentencing decision is REVERSED. . - See SLA 1994, ch. 41. . Whitehead, 985 P.2d at 1020. . Ibid. . Ibid. . Doe, 189 P.3d at 1019.

6986208

PEBBLE LIMITED PARTNERSHIP, acting through its General Partner, PEBBLE MINES CORP., Petitioner, v. LAKE AND PENINSULA BOROUGH and Kate Conley, in her official capacity as Clerk of the Lake and Peninsula Borough, George G. Jacko and Jackie G. Hobson, Sr., Respondents

Pebble Ltd. Partnership v. Lake & Peninsula Borough

2011-08-17

No. S-14404

598

602

262 P.3d 598

262

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T19:02:37.665411+00:00

CAP

Before: CARPENETI, Chief Justice, WINFREE, CHRISTEN and STOWERS, Justices.

PEBBLE LIMITED PARTNERSHIP, acting through its General Partner, PEBBLE MINES CORP., Petitioner, v. LAKE AND PENINSULA BOROUGH and Kate Conley, in her official capacity as Clerk of the Lake and Peninsula Borough, George G. Jacko and Jackie G. Hobson, Sr., Respondents.

PEBBLE LIMITED PARTNERSHIP, acting through its General Partner, PEBBLE MINES CORP., Petitioner, v. LAKE AND PENINSULA BOROUGH and Kate Conley, in her official capacity as Clerk of the Lake and Peninsula Borough, George G. Jacko and Jackie G. Hobson, Sr., Respondents. No. S-14404. Supreme Court of Alaska. Aug. 17, 2011. Review Denied Aug. 17, 2011. Before: CARPENETI, Chief Justice, WINFREE, CHRISTEN and STOWERS, Justices.

2786

18119

Order Emergency Petition for Review On consideration of Pebble Limited Partnership's Emergency Petition for Review filed on August 1, 2011, and responses filed by Lake and Peninsula Borough, George Jacko and Jackie Hobson, Sr., and amici curiae Nunamta Aulukestai and the State of Alaska, It Is ORDERED: The Petition for Review is DENIED. Entered by direction of the court. Clerk of the Appellate Courts /s/ Marilyn May Marilyn May FABE, Justice, not participating. WINFREE, Justice, dissenting. STOWERS, Justice, concurring.

10383938

Clyde G. MALEMUTE, Appellant, v. STATE of Alaska, Appellee

Malemute v. State

1990-04-27

No. A-2442/62

624

627

791 P.2d 624

791

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T19:36:10.625449+00:00

CAP

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

Clyde G. MALEMUTE, Appellant, v. STATE of Alaska, Appellee.

Clyde G. MALEMUTE, Appellant, v. STATE of Alaska, Appellee. No. A-2442/62. Court of Appeals of Alaska. April 27, 1990. Michael Dieni, Asst. Public Advocate, and Brant McGee, Public Advocate, Anchorage, for appellant. W.H. Hawley, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Douglas B. Baily, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J, and COATS and SINGLETON, JJ.

1292

8413

OPINION BRYNER, Chief Judge. Clyde G. Malemute was convicted by a jury of attempted first degree sexual abuse of a minor and second-degree sexual abuse of a minor. As a result of the conviction, Malemute's probation for prior convictions of first-degree burglary and first-degree misconduct involving weapons was revoked. Superior Court Judge S.J. Bucka-lew, Jr., sentenced Malemute to a composite term of thirty-two years with five years suspended. Malemute appeals, contending that it was improper to enter judgment against him on both the attempted first-degree sexual abuse charge and the second-degree sexual abuse charge. Malemute further contends that the trial court erred in denying his motion for a mistrial, which was based on a witness' reference to Male-mute's prior incarceration. Malemute separately argues that the total sentence he received is excessive. We reverse in part and affirm in part. Malemute's first contention is that the entry of judgment for both attempted sexual abuse of a minor in the first degree and sexual abuse of a minor in the second degree was barred by double jeopardy. The two charges arose from a single incident in which Malemute attempted to have anal intercourse with a ten-year-old boy. The second-degree sexual abuse charge involved sexual touching that was incidental to the attempted act of sexual penetration. On appeal, the state concedes that, under these circumstances, the second-degree sexual abuse charge should have merged with the attempted first-degree sexual abuse charge and that entry of judgment on both charges was therefore barred. This concession is well founded. See Tuckfield v. State, 621 P.2d 1350, 1352 (Alaska 1981); Johnson v. State, 762 P.2d 493, 495 (Alaska App.1988); Tookak v. State, 648 P.2d 1018, 1022 (Alaska App.1982). Accordingly, Malemute's judgment must be amended by deleting his conviction and sentence for second-degree sexual abuse of a minor. Malemute next contends that the trial court erred in failing to grant a mistrial as a result of testimony disclosing that Male-mute had been released from jail shortly before the alleged assault in this case. At trial, Malemute's attorney attempted to suggest that, at the time of the offense, Malemute was too intoxicated to form specific intent. To support this theory, Male-mute's counsel asked the arresting officer, Francis O'Brien, whether, at the time of his arrest, Malemute "was doing a lot of rambling, just rambling on?" O'Brien responded: He was talking a lot; yes sir, about coming from Fairbanks, about just getting out of jail. He was talking about a lot of things. Based on O'Brien's reference to Male-mute's incarceration, trial counsel moved for a mistrial. Judge Buckalew denied the motion but offered a limiting instruction, which Malemute declined. The decision whether to grant a mistrial is consigned to the sound discretion of the trial court. Prior decisions involving isolated references to a defendant's previous conviction or incarceration have held that the trial court did not abuse its discretion in denying a mistrial. See Preston v. State, 615 P.2d 594, 603-04 (Alaska 1980); Hines v. State, 703 P.2d 1175, 1178-79 (Alaska App.1985). Malemute's situation is not materially different from those presented in Hines and Preston. Male-mute presents no cogent reason to depart from these precedents. In light of the overwhelming evidence of Malemute's guilt, there appears to be no realistic possibility of appreciable prejudice resulting from the single, passing reference to Malemute's recent incarceration. Judge Bucka-lew did not abuse his discretion in concluding that the challenged testimony did not necessitate a mistrial. Malemute also contends that his sentence is excessive. As a third felony offender, Malemute was subject to a fifteen-year presumptive term for attempted first-degree sexual abuse of a minor. Judge Buckalew found two aggravating factors (that Male-mute had more than two prior felony convictions and that he was on probation at the time of this offense) and imposed the presumptive term. On the second-degree sexual abuse charge, Judge Buckalew imposed a consecutive six-year term, which will now be vacated. On the prior offenses of burglary and misconduct involving weapons, for which Malemute's probation was revoked, Judge Buckalew imposed additional consecutive terms of six years and five years with five years suspended. Thus, Malemute's composite sentence was thirty-two years with five years suspended as originally imposed; as amended by the merger of Malemute's second-degree sexual abuse conviction, the composite term will now be twenty-six years' with five years suspended. In challenging this sentence, Male-mute argues that the court erred in imposing the full amount of his previously suspended term for burglary consecutively to his fifteen-year presumptive term for attempted sexual abuse. Malemute contends that, because his probation was revoked solely for the new offense, imposition of a consecutive term effectively subjected him to dual punishment for the same conduct. Malemute's argument is unpersuasive. The sentence he received upon revocation of his probation was for the underlying offenses of burglary and misconduct involving weapons, not for his act of attempted sexual abuse. See Paul v. State, 560 P.2d 754, 758 (Alaska 1977). For purposes of deciding the propriety of the consecutive sentences, the pertinent question is thus whether the composite term of twenty-six years with five years suspended is justified under the totality of the circumstances. See, e.g., Moya v. State, 769 P.2d 447, 449 (Alaska App.1989). At thirty-one years of age, Male-mute was a seasoned offender. The current offense was his fourth felony conviction for presumptive sentencing purposes. Malemute's prior convictions include a serious incident of assault with a dangerous weapon, a first-degree burglary, and a first-degree misconduct involving weapons case in which Malemute was convicted for being a felon in possession of a stolen handgun. In addition to these felonies, Malemute has one prior conviction for contributing to the delinquency of a minor, which was treated as a felony but does not qualify for presumptive sentencing purposes because of statutory changes under the revised criminal code. Significantly, the underlying conduct involved in that case was a sexual assault on a young boy. In addition to the foregoing felony convictions, Malemute has been convicted of numerous misdemeanors, has been the subject of repeated probation and parole revocation actions, and, as a child, was adjudicated a delinquent for conduct that would have qualified as a felony had he been an adult. It appears that Malemute has had a serious problem with alcoholism since adolescence. Despite repeated opportunities for treatment, he has failed to make any lasting progress toward rehabilitation. Malemute's current offense involved a serious attempted act of sexual penetration on a young child, which came close to completion and was thwarted only by the fortuitous intervention of two bystanders. It appears that Malemute's victim suffered considerable and lasting emotional trauma as a result of the assault. Malemute had been released on probation only several days before he committed the offense. In imposing sentence, Judge Buckalew found Malemute's chances for rehabilitation to be remote and concluded that a lengthy sentence was necessary to isolate Malemute for the protection of the community. Our independent review of the record convinces us that Judge Buckalew's findings are amply supported and that the composite sentence imposed was not clearly mistaken. See, e.g., Amarok v. State, 789 P.2d 377, 380-81 (Alaska App., 1990); Murray v. State, 770 P.2d 1131, 1140-44 (Alaska App.1989). The conviction for sexual abuse of a minor in the second degree is VACATED. In all other respects, the judgment is AFFIRMED. The case is REMANDED for entry of an amended judgment conforming hereto.

10356758

STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION, Appellant, v. A.H., Appellee

State, Department of Revenue, Child Support Enforcement Division v. A.H.

1994-08-19

No. S-5578

1048

1051

880 P.2d 1048

880

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:36:47.580427+00:00

CAP

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

STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION, Appellant, v. A.H., Appellee.

STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION, Appellant, v. A.H., Appellee. No. S-5578. Supreme Court of Alaska. Aug. 19, 1994. Rehearing Denied Sept. 30, 1994. R. Poke Haffner, Asst. Atty. Gen., Fairbanks, and Charles E. Cole, Atty. Gen., Juneau, for appellant. Andrew Harrington, Alaska Legal Services Corp., Fairbanks, for appellee. Before MOORE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.

1329

8381

OPINION COMPTON, Justice. This case presents the issue whether the Alaska Child Support Enforcement Division (CSED) is required to pay for paternity testing to determine the parentage of a child who has a legally presumed father. I. FACTUAL AND PROCEDURAL BACKGROUND AH. and D.H., a married couple, separated and filed for dissolution of marriage. At the February 1992 dissolution hearing, A.H. was pregnant with D.J., the father of whom she alleged to be J.Z. Because J.Z. did not acknowledge paternity, the court refused to grant the dissolution. A.H. sought the assistance of CSED to establish paternity in J.Z. CSED refused, based on the state law presumption that D.H. — her husband at the time of conception — was D.J.'s father. A.H. then filed a paternity action against J.Z., who denied paternity. Next, A.H. filed suit against CSED, claiming that because she received Aid to Families with Dependent Children (AFDC), CSED must pay for paternity testing. A.H. and D.H. both filed affidavits stating that D.H. was not D.J.'s father. The superior court granted A.H.'s motion for summary judgment and ordered CSED to provide assistance for testing to determine the paternity of D.J. CSED appeals. AS 22.05.010. II. DISCUSSION A. This Case Falls Within the Public Interest Exception to the Mootness Doctrine. After the superior court ordered CSED to provide paternity testing, the parties agreed that CSED would not seek a stay of the order and A.H. would not argue mootness before this court. CSED then provided paternity testing which established that J.Z. is D.J.'s father. We expressed concern that the case was moot and requested that both parties brief the issue of whether the ease falls within the "public interest" exception to the mootness doctrine. The public interest exception requires that an issue be (1) capable of repetition, (2) capable of evading review, and (3) of considerable public interest. Hayes v. Charney, 693 P.2d 831, 834 (Alaska 1985). We conclude that each requirement of the public interest exception test has been met. The record indicates that this scenario — married women seeking to establish paternity in persons other than their husbands — is repeated regularly. The issue fre quently evades review because trial courts prefer not to leave the question of a child's paternity unsettled pending appeal. Thus a "paternity issue is likely to be determined before [an] appeal can be perfected." Moreover, the efficiency and effectiveness of child support administration is of considerable public interest. Thus we will address the merits of this appeal. B. CSED Must Pay for Paternity Testing. Alaska Statute 25.27.040 provides in part: Determination of Paternity, (a) 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 born out of wedlock determined by the court. When the agency is a party in an action in which paternity is contested, it shall request and pay for tests and procedures_ The agency may recover the costs of the tests as a cost of the action, except that costs may not be recovered from . [an AFDC recipient]. (Emphasis added). A.H. contends that because D.H. is not D.J.'s father, D.J. was born "out of wedlock." Furthermore, because she receives AFDC, CSED must pay for paternity testing to determine the paternity of D.J. In Alaska there is a statutory presumption of the husband's paternity. Moreover, we recently adopted "[t]he longstanding common law rule . that a child born to a married woman is presumed to be the offspring of her husband." Smith v. Smith, 845 P.2d 1090, 1092 (Alaska 1993). This presumption can be rebutted by clear and convincing evidence. Id. CSED argues that given the presumption of D.H.'s paternity, D.J. was not bom "out-of-wedlock" for purposes of AS 25.27.040(a); therefore, CSED has no duty to pay for paternity testing. We disagree. A.H. and D.H. each filed affidavits that D.J. is not D.H.'s child. There is no evidence of collusion on their part. For the limited purpose of construing AS 25.27.040(a) — i.e., whether a paternity action is "contested" — we hold that these unim-peached affidavits constitute clear and convincing evidence sufficient to rebut the presumption of D.H.'s paternity and to require CSED to pay for paternity testing. III. CONCLUSION State law provides that AFDC recipients are entitled to paternity testing at CSED's expense where there is a "contested paternity action." We hold that under Alaska law, the term "contested paternity action" applies to situations involving children bom to (1) unmarried women, and (2) married women, such as A.H., who have overcome the presumption of the husband's paternity by clear and convincing evidence. Because CSED unlawfully withheld such assistance, the superior court properly ordered it to provide paternity testing. AFFIRMED. EASTAUGH, J., not participating. . Alaska law authorizes a dissolution of marriage pursuant to AS 25.24.200-260. This process is different than a divorce pursuant to AS 25.24.-010-, 180. Dissolution requires that the parties agree to a separation of property, assumption of unpaid obligations and the support and custody of children of the marriage, or child with whom the woman is pregnant at the time dissolution is sought. AS 25.24.200(l)-(4). . AS 25.27.210(e), which applies to marital and domestic relations, including paternity determinations, provides in part: 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. .Alaska state courts are courts of general jurisdiction. Accordingly, mootness is a matter of judicial policy and discretion. R.L.R. v. State, 487 P.2d 27 (Alaska 1971); In re G.M.B., 483 P.2d 1006 (Alaska 1971). . This court has held that such time considerations affect the "evading review" prong of the test. See Doe v. State, 487 P.2d 47, 53 (Alaska 1971) (reviewing pre-adjudication juvenile detention order where appeal followed adjudication); G.M.B., 483 P.2d at 1008 (reviewing pre-disposition juvenile detention order where appeal followed disposition hearing). . Because this case involves a question of law, we apply the substitution-of-judgment standard of review. Loeb v. Rasmussen, 822 P.2d 914, 917 (Alaska 1991). . AS 18.50.160(d) provides; If the mother was married at the time of conception or birth, the name of the husband shall be entered on the certificate as the father of the child unless paternity has been determined otherwise by a court of competent jurisdiction, in which case the name of the father, if determined by the court, shall be entered. See also Alaska CSED Procedure Manual § 6600.5 (employing nearly identical language). . This interpretation is consistent with the great weight of authority. See, e.g., Wilkins v. Georgia Dep't of Human Resources, 255 Ga. 230, 337 S.E.2d 20, 22 (1985); Johnson v. Studley-Preston, 119 Idaho 1055, 812 P.2d 1216, 1219 (1991); Pursley v. Hisch, 119 Ind.App. 232, 85 N.E.2d 270, 271 (1949); Smith v. Robbins, 91 Mich.App. 284, 283 N.W.2d 725, 729 (1979); Gursky v. Gursky, 39 Misc.2d 1083, 242 N.Y.S.2d 406, 409 (N.Y.Sup.1963); In re Legitimation of Locklear by Jones, 314 N.C. 412, 334 S.E.2d 46 (1985); State v. Coliton, 73 N.D. 582, 17 N.W.2d 546, 549 (1945); In re Marriott's Estate, 515 P.2d 571, 573 (Okl.1973). . Rebutting the presumption in this manner would not be dispositive of the ultimate issue of DJ.'s paternity. For example, if J.Z.'s test came back excluding him as D.J.'s father, then CSED certainly could require testing of D.H. at CSED's expense. . Given this disposition, we need not address A.H.'s due process, equal protection and right-to-privacy claims under the United States and Alaska Constitutions, or A.H.'s federal statutory claim.

10348734

Lance D. LINTON, Appellant, v. STATE of Alaska, Appellee

Linton v. State

1994-08-26

No. A-4834

123

131

880 P.2d 123

880

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T19:36:47.580427+00:00

CAP

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

Lance D. LINTON, Appellant, v. STATE of Alaska, Appellee.

Lance D. LINTON, Appellant, v. STATE of Alaska, Appellee. No. A-4834. Court of Appeals of Alaska. Aug. 26, 1994. Dick L. Madson, Law Offices of Dick L. Madson, Fairbanks, for appellant. Eric A. Johnson, Asst. Atty. Gen., 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.

4797

30543

OPINION BRYNER, Chief Judge. Lance D. Linton was convicted of first-degree murder by a jury. Linton appeals, contending that the trial court erred in admitting hearsay evidence at trial and in denying Linton's pretrial motions to suppress evidence and to dismiss his mdictment. We affirm. FACTS In 1972, Linton married Elfriede Goltz in Germany, where Linton was stationed with the Army. In the years that followed, Linton and Elfriede had two children. Linton was eventually transferred to Fort Wainwright, Alaska. In 1980, as a means of obtaining a hardship discharge, Linton convinced Elfriede to dissolve their marriage and give him sole custody of their children. After the Army discharged Linton, Elfriede joined Linton again; the couple occupied a trailer • near Fairbanks. Linton's father, John Linton, and John's domestic partner, Stephen Pieroni, lived in another trailer a short distance away. By all accounts, Linton's relationship with Elfriede deteriorated after the dissolution of their marriage. In early June of 1982, Elfr-iede disappeared from home. Because Elfr-iede had few friends in Alaska, her disappearance drew little attention. After the disappearance, various people, including the police, inquired of Linton about Elfriede's whereabouts. Linton gave conflicting explanations, telling some people that she had gone home to Germany and others that she had run off with another man. Approximately seven years later, in August of 1989, Linton's father died, apparently of natural causes. Several months afterward, in November of 1989, Pieroni and Lance Linton came under investigation as a result of their involvement in a fraudulent pull-tab scheme. The Alaska State Troopers obtained and executed a search warrant for Pieroni's trailer. Trooper Sergeant James McCann interviewed Pieroni during the search. At the conclusion of the interview, McCann urged Pieroni to contact the troopers if Pieroni had anything else to tell them. A short time later, Pieroni contacted the troopers with information indicating that Linton had murdered Elfriede in 1982. Among other things, Pieroni reported having a conversation with John Linton one morning in June of 1989, about two months before John's death. According to Pieroni, he and John had been drinking and celebrating Pier-oni's birthday the night before the conversation. In the morning, Pieroni noticed that John was upset: "Tears were coming down [John's] face." John said that he had something to tell Pieroni, but "it's.going to be rough." John went on to say that "Lance killed Elfie and . I helped transport the body." Pieroni responded, "what are you telling me this for? I don't want to hear this." John answered, "to get it off my chest. I've got to tell you." Pieroni told • John to "just calm down and tell me anything you want." John then told Pieroni that, in the summer of 1982, Linton had come over in the evening hours and asked to borrow John's van; John asked why, and Linton told him that he needed to transport Elfriede. Linton said that he had poisoned Elfriede by placing cyanide in either her milk or tea. He needed John's help because Elfriede was a large woman. John helped Linton load Elfriede into the van. According to Pieroni, John said that, "[j]ust as they were lifting her into the van her arm flopped out of the wrapper." John also told Pieroni that Linton had buried Elfriede on their property, somewhere behind the trailer. John warned that "if Lance learned [that John told Pieroni] he would kill both of us." After telling the troopers about his conversation with John, Pieroni agreed to testify before a magistrate for a warrant authorizing electronic monitoring of conversations between Pieroni and Linton. .Based on Piero- ni's testimony, Magistrate John C. Hessin granted the warrant. The troopers subsequently monitored and recorded a telephone call between Pieroni and Linton in which Pieroni brought up the topic of Elfriede's disappearance. During the call, Linton was reluctant to discuss Elfriede but made several arguably inculpatory statements. In particular, when Pieroni informed Linton that he knew Elfriede was "buried out back," Linton became "quite angry" and asked Pieroni, "if that's true, how much do you value your life?" The troopers later obtained a warrant to search the property around Linton's residence. On June 30,1990, searchers discovered a human cranium — the upper portion of a skull — embedded in moss in a thickly vegetated area; the cranium had apparently been moved to its resting place by animals long before its discovery. Extensive searching yielded no other evidence. Forensic examination positively identified the cranium as Elfriede's and established that Elfriede had died between five and twenty years previously. Linton was eventually indicted for first-degree murder. Prior to trial, he moved to dismiss his indictment, contending that the state had presented the grand jury with inadmissible hearsay: Pieroni's testimony relating John Linton's description of the disposal of Elfriede's body and the testimony of several witnesses stating that, prior to her 1982 disappearance, Elfriede had told them she was afraid of Linton. Linton also moved to suppress all evidence derived from the warrant that authorized electronic monitoring of Pieroni's telephone conversation with him, contending that the warrant was issued without probable cause. Superior Court Judge Niesje J. Steinkruger denied Linton's motions. At trial, much of the disputed hearsay was admitted over Linton's objection, as was the evidence obtained as a result of the contested warrant. Upon conviction, Linton filed this appeal. DISCUSSION A. Suppression On appeal, Linton first contends that the trial court erred in failing to suppress evidence seized pursuant to the warrant authorizing electronic surveillance of Pieroni's telephone call to Linton. Linton argues that the warrant was issued without probable cause because the state failed to establish Pieroni's credibility in accordance with the Aguilar-Spinelli doctrine. Linton's challenge to the state's failure to establish Pieroni's credibility lacks merit, since it fails to recognize that the Aguilar-Spinelli test deals exclusively with situations in which the police seek to obtain a warrant by presenting the magistrate with the hearsay statements of an informant; the truthfulness of a witness who personally appears before the issuing magistrate and testifies under oath need not be corroborated under the Aguilar-Spinelli test. See Kvasnikoff v. State, 804 P.2d 1302, 1306 n. 3 (Alaska App.1991); Hodsdon v. State, 698 P.2d 1224, 1226-27 (Alaska App.1985). As with any other similarly situated witness, the informant's willingness to submit to an oath, and his personal presence and the availability for questioning by the magistrate provided adequate procedural safeguards to assure a sound basis for assessing veracity and reliability. No independent corroboration was required under the circumstances. McLaughlin v. State, 818 P.2d 683, 686 (Alaska App.1991). Here, Pieroni appeared personally before Magistrate Hessin and testified under oath in support of the disputed warrant. The magistrate was presented with pertinent information relating to Pieroni's credibility and had an ample basis to determine the truthfulness of his testimony. The magistrate did not abuse his discretion in accepting Pieroni's testimony as credible and in issuing the warrant in reliance thereon. B. Hearsay 1. John Linton's confession Linton next argues that the trial court erred in admitting the hearsay statement of John Linton via Pieroni's testimony at trial. In allowing Pieroni to testify about John Linton's statement, Judge Steinkruger reasoned that, by telling Pieroni about the assistance he gave his son in the disposal of Elfriede's body, John Linton had essentially admitted committing the offense of tampering with evidence. The judge found this statement to be substantially against John Linton's penal interest and, accordingly, concluded that it was admissible under Alaska Rule of Evidence 804(b)(3) as a statement against penal interest. a. ARE. 80Mb) (3) Alaska Rule of Evidence 804(b)(3) creates an exception to the hearsay rule when an unavailable declarant makes [a] statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. On appeal, Linton concedes John Linton's unavailability but disputes the trial court's hearsay ruling on several grounds. Linton notes that, by the time John Linton made his statement to Pieroni in 1989, approximately seven years had elapsed since Elfriede's death. Linton asserts that the five-year statute of limitations for tampering with evidence had thus expired and that, for this reason, John Linton's statement did not tend to subject him to criminal liability and was not against his penal interest. As a matter of law, however, it is far from clear that the applicable statute of limitations for tampering with evidence had already expired when John Linton made the disputed statement to Pieroni. More to the point, nothing in the record suggests that John Linton was aware of or influenced by the possible expiration of the statute of limitations when he spoke to Pieroni. Nor do we think it fair to say that a reasonable person in John Linton's position, even if aware of the possibility of a statute of limitations defense, would have felt free to speak to others about participating in the disposal of a murder victim's body. Linton also maintains that John Linton's statements exposed him to no realistic threat of criminal liability, because the statements were made to an intimate companion who was unlikely to divulge them to the authorities. Linton analogizes his situation to that in Shakespeare v. State, 827 P.2d 454, 458-60 (Alaska App.1992), where we held A.R.E. 804(b)(3) inapplicable to a statement made to the police by an arrestee admitting participation in a crime and implicating the defendant. In Shakespeare, we reasoned that, once an arrest occurs and police questioning begins, the arrestee is likely to see little to lose in admitting the offense and much to gain in falsely impheating another person as an accomplice. Id. at 459-60. We concluded that, under such circumstances, it was unrealistic to view the disputed statements as being against the declarant's penal interest. Id. The situation in the current case is obviously distinguishable from Shakespeare, since there is utterly no reason to suppose that John Linton was motivated to fabricate a claim against his own son when he spoke to Pieroni. Moreover, unlike the situation in Shakespeare, John Linton had no reason to believe that the information he disclosed to Pieroni was already known to the police. While it is true that John Linton may not have had much reason to fear that an intimate companion like Pieroni would actually report John Linton's confession to the police, neither did John Linton have any assurance that Pieroni would safeguard his confidences. Most courts have been willing to find a sufficient risk of incrimination under such circumstances to trigger the statement against penal interest exception: A relation of trust and confidence between speaker and listener arguably militates against awareness that the making of the statement might be against declarant's in-terest_ [However], [t]he always-existent possibility of disclosure appears to be enough. In fact, the existence of a friendly relationship is on occasion mentioned as a factor supporting admissibility. 2 John W. Strong, McCormick On Evidence § 319 at 345-46 (4th ed. 1992) (footnotes omitted). See, e.g., United States v. Goins, 593 F.2d 88, 92 (8th Cir.1979) (statement to daughter could be against declarant's penal interest); United States v. Lang, 589 F.2d 92, 97 (2d Cir.1978) (statement to cellmate could be against declarant's penal interest); United States v. Bagley, 537 F.2d 162, 165 (5th Cir.1976) (same); People v. Petros, 198 Mich.App. 401, 499 N.W.2d 784, 791 (1993) (statement to friend qualifies as a statement against penal interest). But see United States v. Battiste, 834 F.Supp. 995, 1006-07 & n. 11 (N.D.Ill.1993) (statement to brother did not qualify as a statement against penal interest). In short, the trial court could properly find that, despite the potential statute of limitations problem and despite the fact that John Linton made his disclosures to an intimate companion, his statements "so far tended to subject [him] to . criminal liability . that a reasonable person in [his] position would not have made the statement unless believing it to be true." A.R.E. 804(b)(3). b. Confrontation Linton separately asserts that the admission of John Linton's statements violat ed his constitutional right to confrontation. U.S. Const, amend. VI; Alaska Const, art. I, § 11. Even when admissible under an exception to the hearsay rule, an out-of-court statement offered against the accused in a criminal prosecution must be excluded if it impinges upon the accused's right of confrontation. Under the confrontation clause, a hearsay statement is admissible against the accused only if it bears adequate "indicia of reliability." Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness. Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980); see also Hawley v. State, 614 P.2d 1349, 1358 (Alaska 1980); Charles v. State, 780 P.2d 377, 382 (Alaska App.1989). There currently appears to be much confusion as to whether the declarations against penal interest exception to the hearsay rule is "firmly rooted" for confrontation clause purposes. Compare, e.g., United States v. Flores, 985 F.2d 770, 780 (5th Cir.1993), and United States v. Battiste, 834 F.Supp. 995, 1001 (N.D.Ill.1993), with United States v. York, 933 F.2d 1343, 1363 (7th Cir.1991), and United States v. Innamorati, 996 F.2d 456, 474 n. 4 (1st Cir.1993). At least as to the confession of an accomplice implicating a criminal defendant, the issue appears settled that the exception is not firmly rooted. See Lee v. Illinois, 476 U.S. 530, 544 n. 5, 106 S.Ct. 2056, 2064 n. 5, 90 L.Ed.2d 514 (1986). In the present case, the prudent choice is clearly to assume that declarations against penal interest do not comprise a firmly rooted exception to the hearsay rule and that "particularized guarantees of trustworthiness" must be shown before the requirements of the confrontation clause can be met. For purposes of determining whether "particularized guarantees of trustworthiness" exist in a given case, the totality of the circumstances must be considered, but "the relevant circumstances include only those that surround the making of the statement and that render the declarant particularly worthy of belief." Idaho v. Wright, 497 U.S. 805, 819, 110 S.Ct. 3139, 3148, 111 L.Ed.2d 638 (1990). Evidence that is not intrinsically related to the circumstances in which a hearsay statement was made but merely corroborates the statement's truthfulness cannot properly be considered, since "the use of corroborating evidence to support a hearsay statement's 'particularized guarantees of trustworthiness' would permit admission of a presumptively unreliable statement by bootstrapping on the trustworthiness of other evidence at trial." Id. at 823,110 S.Ct. at 3150. Here, the circumstances surrounding John Linton's statement provide ample assurance of the reliability of his statement implicating Linton as Elfriede's murderer. John Linton's statement to Pieroni was in the nature of a spontaneous confession and was from all appearances prompted by Linton's inability to cope with the guilt he felt for his role in the incident. The statement was made to an intimate and trusted companion in the absence of any apparent reason for deception. Although the events related by John Linton were not recent, they were not the kind of events that would ordinarily fade or become confused with the passage of time. Moreover, while John Linton's account of his own actions implicated another person in the commission of a crime, there is no indication that he attempted to minimize his own role or shift blame. Significantly, the person John Linton implicated was his own son. The record reveals no basis for believing that John Linton had even the slightest reason to accuse his son falsely. To the contrary, all of the evidence at trial established that John Linton and his son enjoyed a close and harmonious relationship throughout the course of John's life. Of course, the truthfulness and accuracy of Pieroni's testimony concerning John Linton's out-of-court statement was open to question. But Pieroni testified personally and was thoroughly cross-examined; his credibility was an issue " 'exclusively within the province' of the trier of fact." Broderick v. Kings Way Assembly of God Church, 808 P.2d 1211, 1220 (Alaska 1991) (quoting Grasle Electric v. Clark, 525 P.2d 1081, 1083 (Alaska 1974). The jury obviously found his testimony believable. Accepting Pieroni's testimony as true, we think it fair to say that "the declarant's [that is, John Linton's] truthfulness is so clear from the surrounding circumstances that the test of cross-examination [as to John Linton] would be of marginal utility" and would add little to his reliability. Wright, 497 U.S. at 820, 110 S.Ct. at 3149. Under these circumstances, admission of the hearsay statement did not violate Linton's right to confrontation. 2. Elfriede's State of Mind Linton next contends that the trial court erred in allowing the jury to hear the testimony of three witnesses describing Elfriede's fear of Linton prior to her disappearance. The disputed testimony was elicited from three of Elfriede's friends, Ingrid Pierce, Ann Schuyler and Linda Castor. At trial, over Linton's objection, Pierce testified that Elfriede was afraid of Linton and had expressed a desire to leave him. Pierce told the jury that she purchased an airline ticket for Elfriede to come to Michigan and that, although Elfriede initially agreed to come, she called Pierce back and said "She couldn't leave because she . couldn't leave her kids." Ann Schuyler testified that Elfriede was at times afraid of Linton and slept with a knife under her pillow. Elfriede particularly feared that Linton might have her deported and keep custody of their children. According to Schuyler, Elfriede would never have left the children voluntarily. Linda Castor, another friend of Elftiede, testified that Elfr-iede told her that Linton had "offered to pay her ticket, [to] go back to Germany but she wasn't allowed to take the children with her." According to Castor, Elfriede remarked that Linton "would get the kids over her dead body." Judge Steinkruger ruled this evidence admissible to show Elfriede's state of mind under A.R.E. 803(3), which allows admission of [a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health) offered to prove his present condition or future action, but not including a statement of memory or belief to prove the fact remembered or believed[.] Linton contends that the court erred in relying on this rule to justify the admission of this evidence. Linton points to authorities holding that evidence of a murder victim's expressions of fear of the accused is generally inadmissible to prove the accused's identity as the murderer or to establish the accused's motive. See State v. Charo, 156 Ariz. 561, 754 P.2d 288 (1988); People v. Ruiz, 44 Cal.3d 589, 244 Cal.Rptr. 200, 749 P.2d 854 (1988). These authorities, however, merely recognize the general proposition that, even when evidence of a victim's state of mind qualifies under A.R.E. 803(3), the evidence must be directly relevant to some genuinely disputed issue before it is properly admissible. The corollary proposition is that such state-of-mind evidence is inadmissible if its only relevance is as circumstantial evidence of the accused's conduct, that is, if its probative value depends on the impermissible inference that, because the victim feared the accused, the accused likely did something or planned to do something to justify the fear. Both of these propositions flow in turn from the explicit language of A.R.E. 803(3) prohibiting the use of "a statement of memory or belief to prove the fact remembered or believed," a limitation "necessary to avoid the virtual destruction of the hearsay rule which would otherwise result from allowing state of mind, provable by a hearsay statement, to serve as the basis for an inference of the happening of the event which produced the state of mind." Alaska Evidence Rules Commentary 803(3). As the state correctly points out, courts have had little difficulty admitting evidence of a murder victim's fear of the accused when the victim's fear was relevant to a material issue other than "the happening of the event which produced the state of mind." See, e.g., State v. Christensen, 129 Ariz. 32, 628 P.2d 580, 584 (1981). Here, the disputed evidence relating to Elfriede's fear of Linton was not used to prove "the happening of the event that produced the state of mind." In the aftermath of Elfriede's disappearance, Linton made a number of conflicting statements indicating that Elfriede had left him for another man or that she had returned home to Germany. At trial, the state attempted to establish the falsity of these explanations by proving that Elfriede would never have considered leaving Linton without her two children. Indeed, under the state's theory of the ease, Elfr-iede's refusal to leave provided Linton with the motive to kill her. In support of this theory, the state introduced evidence to show that Linton's marriage to Elfriede had deteriorated and was failing by the time Linton was discharged from the Army. The state's evidence indicated that Linton wanted Elfriede to return home to Germany and that he wanted to retain sole custody of their two children; Elfriede, however, refused to leave her children behind. The state's evidence further tended to show that, during the year preceding Elfriede's disappearance, Linton engaged in conduct aimed at frightening Elfriede away; despite these efforts, Elfriede would not leave. Various prosecution witnesses, including Ingrid Pierce, Ann Schuyler and Linda Castor, insisted that, although Elfriede had in fact become frightened of Linton, she would never have considered leaving him without taking her children. Viewing the disputed state-of-mind evidence against this evidentiary backdrop makes it apparent that the state did not offer the testimony concerning Elfriede's fear of Linton to prove that Linton had in fact previously harmed her or to support the impermissible subsidiary inference that Linton's past acts of harm toward Elfriede made it more likely that he was her killer. Rather, the state offered this evidence to suggest a plausible motive for Linton's commission of the alleged crime: that Linton resorted to murder when his attempts to talk Elfriede into leaving and his attempts to drive her away — including his apparent success at frightening her — had failed. For this purpose, the disputed evidence was admissible under A.R.E. 803(3). The trial court's decision to admit it did not amount to an abuse of discretion. C. Dismissal Linton lastly argues that the trial court erred in denying his motion to dismiss his indictment. Linton's dismissal motion, however, was largely predicated on his contention that Pieroni's testimony concerning John Linton's confession and the testimony of Ingrid Pierce, Ann Schuyler and Linda Castor concerning Elfriede's fear of Linton amounted to inadmissible hearsay. Our holding that the testimony of these witnesses was admissible at trial thus disposes of Linton's challenge to the validity of his indictment. CONCLUSION Finding no error, we AFFIRM the conviction. . Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). . Linton separately argues that the magistrate erred in relying on Pieroni's description of John Linton's statements concerning the disposal of Elfriede's body. Linton contends that his fa ther's statements were inadmissible hearsay and should have been disregarded. This argument, however, loses sight of the fact that the rules of evidence do not apply in the context of search warrant proceedings. See A.R.E. 101(c)(2). Moreover, as we conclude in subsequent portions of this decision, Pieroni's testimony concerning John Linton's statements was not objectionable on hearsay grounds. . See AS 12.10.010. . See AS 12.10.020(a). This statute allows an extension of the usual five-year statute of limitations for up to three years for the prosecution of an undiscovered offense that includes a material element of fraud. As the state notes in its brief, the crime of tampering with evidence arguably includes a material element of fraud. Cf. Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir.1978). It is thus conceivable that John Linton remained vulnerable to prosecution for tampering with evidence when he made his statement to Pieroni. . Linton suggests that it was Pieroni, not John Linton, who had the strong motivation to fabricate in this case and that, for this reason, addi-. tional scrutiny should have been given to his testimony before it was admitted. In evaluating the reliability of out-of-court declarations for hearsay purposes, however, the proper focus is on the motivations of the out-of-court declarant, not on the witness who testifies about the out-of-court statement. Because the person who witnesses the out-of-court statement appears personally, testifies under oath, and is subject to cross-examination, the jury can gauge for itself the truthfulness of the witness' claims: "The fact that the witnesses to [the] statements . may be unreliable or motivated by selfish interests is irrelevant to evaluation of the reliability of the [out-of-court] statements themselves." Broderick v. Kings Way Assembly of God Church, 808 P.2d 1211, 1220 (Alaska 1991). See United States v. Seeley, 892 F.2d 1, 3 (1st Cir.1989); United States v. Katsougrakis, 715 F.2d 769, 777 (2d Cir.1983); United States v. Atkins, 558 F.2d 133, 135 (3d Cir.1977). See generally, 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence ¶ 804(b)(3)[02] at 804-147-48 (1994). To the extent Linton suggests that additional scrutiny should be given to statements against penal interest implicating third parties when, as here, admission is sought against the third parties, his point may have merit. A number of cases dealing with Federal Rule of Evidence 804(b)(3) indicate that the trustworthiness of a statement against penal interest should be corroborated before the statement is admitted against a third party collaterally implicated therein. See, e.g., United States v. Flores, 985 F.2d 770, 774 n. 10 (5th Cir.1993); United States v. Taggart, 944 F.2d 837, 840 (11th Cir.1991); United States v. Garcia, 897 F.2d 1413, 1420 (7th Cir.1990); United States v. Boyce, 849 F.2d 833, 836 (3d Cir.1988); United States v. Stratton, 779 F.2d 820, 828 n. 7 (2d Cir.1985); United States v. Riley, 657 F.2d 1377, 1384 (8th Cir.1981). Such a requirement would in effect parallel the requirement of "corroborating circumstances clearly indicating] the trustworthiness of the statement" that A.R.E. 804(b)(3) expressly imposes as a condition of admitting statements against penal interest by third parties exculpating the accused. Assuming such a corroboration requirement applies to the present case, we find abundant corroboration of the trustworthiness of John Linton's out-of-court statement, including, most notably, the discovery of Elfriede's cranium on Linton's property. . It is equally apparent that the state did not attempt to use the evidence of Elfriede's state of mind as proof of Linton's state of mind in order to establish his likely conduct — that is, the state did not attempt to prove that Elfriede's fear of Linton indicated that Linton was in fact planning to harm her and that he therefore probably did so. Such use would have been equally impermissible under A.R.E. 803(3). See Alaska Evidence Rules Commentary 803(3) ("For the statements of one person as to his mental or emotional condition to be used against another, Subdivision (23) [A.R.E. 803(23)] must be satisfied.") Notably, Judge Steinkruger offered Linton a cautionary instruction to inform the jury that the testimony of Pierce, Schulyer, and Castor could not be considered for the truth of the matters asserted therein. . To a certain extent, the grand jury testimony of Pierce, Schuyler and Castor was broader than their trial testimony and included statements that are arguably objectionable. In denying the motion to dismiss, however. Judge Steinkruger found that, any error was harmless, since, even if the entirety of the testimony offered by these witnesses were excised, sufficient evidence would remain in the grand jury record to support Linton's indictment. Although Linton's failure to include a transcript of the grand jury hearing as part of the record on appeal precludes definitive review of Judge Steinkruger's harmless error finding, nothing in the record currently before this court or in the briefs submitted by the parties provides a basis for questioning this finding.

10382251

Francis Juanita SMITH, by her guardian, Dennis R. SMITH, Appellant, v. MARCHANT ENTERPRISES, INC., Industrial Indemnity Company of Alaska, Inc., and Alaska Workers' Compensation Board, Appellees

Smith ex rel. Smith v. Marchant Enterprises, Inc.

1990-04-27

No. S-3060

354

359

791 P.2d 354

791

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:36:10.625449+00:00

CAP

Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

Francis Juanita SMITH, by her guardian, Dennis R. SMITH, Appellant, v. MARCHANT ENTERPRISES, INC., Industrial Indemnity Company of Alaska, Inc., and Alaska Workers’ Compensation Board, Appellees.

Francis Juanita SMITH, by her guardian, Dennis R. SMITH, Appellant, v. MARCHANT ENTERPRISES, INC., Industrial Indemnity Company of Alaska, Inc., and Alaska Workers’ Compensation Board, Appellees. No. S-3060. Supreme Court of Alaska. April 27, 1990. Peter W. Giannini, Law Offices of Giannini & Associates, Anchorage, for appellant. Mark L. Figura, Rose & Figura, Anchorage, for appellees.

2489

16070

OPINION Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ. MATTHEWS, Chief Justice. Appellant Juanita Smith seeks to have reversed the superior court's dismissal of her Workers' Compensation Board decision. She asserts that contrary to the superior court's decision, her claim against one party is not inconsistent with her settlement with another party. We reverse the decision of the court below and remand for a hearing on the merits of Smith's appeal. I. Smith was employed by Glacier Sales Ltd. (Glacier), and allegedly by Marchant Enterprises Inc. (MEI) as well, as a sales representative selling a variety of goods, including jewelry, souvenirs and decorated T-shirts. Her employment required visiting various businesses throughout south-central Alaska. In November 1983, Smith suffered severe injuries in an automobile accident in Soldotna, where several of her buyers were located. Smith's conservator filed with the Workers' Compensation Board a claim against 1) Glacier, an uninsured corporation, 2) MEI, an insured corporation, and its insurance carrier, Industrial Indemnity Company of Alaska, Inc. (Industrial), and 3) two individuals, Jack Stockton and Richard Marchant, who each owned approximately half of Glacier's shares and were its officers. Mar-chant was also the chief officer of MEI; he and his wife each owned half of MEI's shares. Prior to the Board hearing, Smith and Stockton reached a Board-approved settlement. At the hearing, the Board found that Smith was a Glacier employee and that the accident had occurred in the course and scope of her employment. Glacier, therefore, was found liable for compensation and benefits owed to Smith. The Board also determined that Marchant had the implied authority to insure Glacier's workers' compensation liability. Having failed to maintain insurance for Glacier, Marchant was held personally liable. MEI was found not liable. At the Board hearing, Smith had presented arguments for . MEI liability based on the close ties between MEI and Glacier and MEI and Smith. Under the theories argued, MEI and Glacier could be held jointly or severally liable for Smith's claims. Following the Board's decision, Smith and Marchant executed a Board-approved "Partial Compromise and Release" under which Marchant paid Smith $245,000 and agreed not to appeal the decision regarding his personal liability. The document states that settlement "in no way constitute[s] any statement, admission, or position of [Marchant or Glacier] with respect to the liability . of [MEI].... " It further states that this "Compromise and Release shall not discharge any liability or obligation of [MEI] or [Industrial]." Smith subsequently filed her appellant's brief in superior court, alleging substantial ly the same bases for MEI liability as those argued before the Board. Industrial and MEI filed a motion to dismiss on the grounds that, by accepting Marchant's settlement, Smith had accepted the benefits of the Board's decision and was therefore es-topped from pursuing her appeal. The superior court granted Industrial's motion stating: [MEI and Industrial] have moved the court to dismiss this appeal on the ground that appellant is estopped to continue prosecuting the appeal because she accepted the benefits of the Compensation Board decision of which she seeks review. Good cause appearing therefore, the motion is granted. Appellant cannot enforce the Workers' Compensation Board order and collect $245,000 from E.Z. Marchant on the basis that there was no compensation insurance, then prosecute an appeal claiming that compensation insurance was provided. II. This case presents but one issue. Did the court below correctly apply quasi estop-pel to Smith's appeal? That is, does Smith's appeal raise claims inconsistent with the Board's decision and subsequent enforcement by settlement? Smith makes three claims. First, Smith alleges that MEI and Glacier were her "joint employers." Under this doctrine, an employee is considered to have joint employers when she "simultaneously engages in work for more than one employer and the work performed for each employer is identical or nearly identical to that performed for the other employer." Laborers & Hod Carriers Union v. Groothuis, 494 P.2d 808, 813 (Alaska 1972). Very similar is the doctrine of "dual employment" which occurs when "an employee of two employers who is under the separate control of each performs services which are more closely related to the business of one than of the other." Id. Both doctrines trigger joint liability except when, with regard to dual employment, "it is possible to ascribe the service of the employee at the time of his injury or death to a particular employer...." Id. The final doctrine pled by Smith is the doctrine of "corporate disregard." Here, Smith would have to demonstrate that MEI and Glacier were so closely intertwined that they do not merit separate treatment. Husky Oil N.P.R. Operations, Inc. v. Sea Airmotive, Inc., 724 P.2d 531, 534 (Alaska 1986) (applying corporate disregard doctrine to "brother/sister corporations," which share a common nucleus of shareholders); see also, Jackson v. General Electric Co., 514 P.2d 1170 (Alaska 1973) (applying doctrine to "parent/subsidiary corporations"). Industrial argues that Smith took advantage of the Board's finding that Marchant was personally liable in order to obtain a lucrative settlement. As Marchant was held personally liable for failing to obtain workers' compensation insurance for Smith, and as settlement was obtained on the basis of that holding, Smith should be estopped from now arguing that she was covered by the workers' compensation insurance that Marchant had obtained for MEI. The doctrine Industrial relies on was explicitly adopted by this court, under the rubric of "quasi estoppel," in Jamison v. Consolidated Utilities, Inc., 576 P.2d 97 (Alaska 1978). The doctrine applies where the "existence of facts and circumstances mak[es] the assertion of an inconsistent position unconscionable." Id. at 102. The doctrine has been described as serving two functions. First, the doctrine protects the "sanctity of the oath." See Konstantinidis v. Chen, 626 F.2d 933, 937 (D.C.Cir.1980). Second, it "protects] the integrity of the judicial process." Edwards v. Aetna Life Insurance Co., 690 F.2d 595, 598 (6th Cir.1982). See Comment, "Precluding Inconsistent Statements: The Doctrine of Judicial Estoppel," 80 Nw.U.L.Rev. 1244, 1245 (1986). The first consideration focuses our attention on the consistency of the pleadings and evidence offered by the party to be estopped, the second on the involvement of the courts in promoting or permitting inconsistent results. Neither applies here. Smith has not contradicted herself, and the settlement with Marchant rebuts concerns about the integrity of the process. Smith originally took two positions: (1) Marchant was personally liable for Glacier's lack of insurance because he had the authority to obtain it; (2) MEI's insurance could be construed to cover Smith because MEI was Smith's joint/dual employer, or alternatively, because Glacier's separate corporate status should be disregarded. The Board found the former argument persuasive and the latter not. The Board could have decided in Smith's favor on both. The two arguments are not based on inconsistent pleadings or inconsistent evidence. This is immediately evident with regard to Smith's joint/dual employer claims as they require evaluating only Smith's connection to MEI and Marchant. Marchant's personal liability for Glacier's workers' compensation coverage is completely irrelevant to these issues. To say that Smith's claim against Mar-chant is not inconsistent with her corporate disregard claim is less obvious, but not less accurate. Much of the evidence introduced by Smith regarding Marchant's involvement with Glacier supports finding Mar-chant personally liable and indicates Glacier's separate corporate status was merely formal. But mere formal existence could trigger Glacier's — and thereby Marchant's —liability. Glacier was registered as a corporation under Alaska law. It therefore has the legal duty to maintain workers' eompensation insurance. The legislature sought to strongly promote corporate compliance with the workers' compensation statute by making those with the authority to ensure that their corporation complies with this law personally liable if it does not. The Board found Marchant to have the authority to insure Glacier. He did not exercise this authority and therefore was found personally liable. The fact that he had succeeded in fulfilling this duty as an officer of MEI is irrelevant to his failure to do so for Glacier. Even were Glacier ultimately determined to be MEI's alter ego, Glacier would still have had a duty to maintain its own workers' compensation insurance. Indeed, the Board would look behind the corporate veil precisely because such coverage is lacking. That is, corporate disregard might apply not because Marchant had fulfilled his duty but only because he has not. If the Board had determined that the uninsured corporation was the alter ego of the insured one, that would not imply that the uninsured corporation was rightfully without insurance, or that Marchant was not liable. In short, nothing in the Board's decision makes Smith's settlement with Marchant inconsistent with appeal of the decision favoring MEI. None of Smith's pleadings or evidence support personal liability inconsistent with application of Smith's alter-ego doctrine. Thus, the first of our two policy considerations, "the sanctity of the oath," does not apply here. Hoss v. Purinton, 229 F.2d 104 (9th Cir.1955), cert. denied, 350 U.S. 997, 76 S.Ct. 547, 100 L.Ed. 861 (1956), is an instructive case in which the question presented was whether estoppel should apply where a statutory remedy overlaps one available under equity's alter-ego doctrine. Sullens & Hoss Inc. (S & H) was a closely held corporation with the two named persons its only shareholders and officers. Purinton entered a contract with Timber, Inc., which was owned jointly by Hoss and S & H. The contract provided that, in exchange for money advanced to Timber, Inc., Purinton would receive a share of its profits. Purin-ton brought suit to recover the amount he had advanced. He alleged that the contract was voidable at his will on the strength of a territorial statute requiring corporations to file annual reports; if they failed to do so, all contracts made in Alaska with Alaskan residents were voidable. Timber, Inc. had failed to file reports, and the trial court had instructed the jury that the contract had been effectively voided by Purinton. Id. at 107. Purinton also sought to hold Hoss and S & H liable for the amount advanced. Hoss argued that this was inconsistent with Pu-rinton's position as to voidability. The alleged inconsistency was described by the Ninth Circuit as asserting, on the one hand, "a right to avoid the joint venture contract with Timber, Inc., on the ground that it had failed to file the required annual reports" and, on the other hand, "a right to a personal judgment against Hoss on the ground that Timber, Inc. was only his alter ego." Id. at 108. The court held: There is no inconsistency. Such a suggestion ignores the reasons for the doctrine of looking through the corporate entity and for the penalty imposed by the Alaska statute for failure to file annual reports. The suggestion assumes that either the corporation exists or does not exist for any and all legal purposes. This is not so_ The Timber, Inc.-Purinton joint venture contract was voidable under Alaska law. Hoss cannot assert that Timber, Inc. did not exist and therefore was under no obligation to file reports. Hoss selected this method of operating his business and must take the consequences. On the other hand, the jury was free to award a judgment against Hoss to avoid the injustice of allowing him to hide behind the undercapitalized corporate entity of Timber, Inc. Id. Purinton supports our conclusion. Just as it was not inconsistent for Purinton to attack the joint venture contract as voidable and still collect a personal judgment against Hoss on alter-ego grounds, Smith may settle with Marchant on the grounds that Marchant failed to adequately insure Glacier and still seek a judgment against MEI and Industrial Indemnity under the joint or dual employer theory or the corporate disregard theory. Smith's recovery from Marchant under the Workers' Compensation statute is not inconsistent with asserting her equitable claim to pierce Glacier's corporate veil. Her oath is unimpaired. The second policy consideration when considering quasi estoppel, preserving the "integrity of the judicial process," also does not apply here. The Board-approved settlement released Marchant from liability. Marchant did not admit personal liability. Moreover, the settlement explicitly reserved Smith's claim against MEI. Mar-chant agreed not to appeal the finding of liability, and paid less than Smith's total claim. Board approval of the settlement "constitutes a decision of the [Board] and is the equivalent of an award by the [Board]." See Department of Transportation v. Grawe, 113 Ill.App.3d 336, 69 Ill.Dec. 250, 447 N.E.2d 467, 472 (1983); see also, 3 A. Larson, The Law of Workmen's Compensation § 82.60 at 15-1225-27 (1983). Thus, the settlement effectively displaced the Board's finding that Marchant was personally liable. III. In summary, Smith offered no inconsistent evidence or pleadings. Nor, in light of Hoss v. Purinton, does the fact that her equitable remedies overlap with her statutory ones make her claims inconsistent. Smith therefore has preserved the sanctity of her oath. Moreover, the Board's approval of the settlement releasing Marchant displaced the earlier finding of personal liability. Thus, in the event Smith were successful in demonstrating MEI's liability, there is nothing such a decision could be inconsistent with. The integrity of the process would remain intact. In short, quasi estoppel does not apply to Smith's claims. REVERSED and REMANDED for further proceedings. . For example, Smith introduced into evidence a Glacier tax document that was signed by Mar-chant. Marchant's signing the documents supports the contention that he had authority to obtain insurance. It also supports application of the corporate disregard doctrine. . At all relevant times, AS 23.30.075(b) stated: An employer who fails to insure and keep insured employees subject to this chapter or fails to obtain a certificate of self-insurance from the board, upon conviction, is punishable by a fine of $1,000, or by imprisonment for not more than one year, or by both. If an employer is a corporation, all persons who, at the time of the injury or death, had authority to insure said corporation or apply for a certificate of self-insurance, and the person actively in charge of the business of such corporation shall be subject to the penalties prescribed herein and shall be personally, jointly, and severally liable together with the corporation for the payment of all compensation or other benefits for which the corporation is liable under this chapter if said corporation at such time is not insured or qualified as a self-insurer. (Emphasis added) This statute has since been modified. From July 1, 1988, conviction for failure to insure engenders a mandatory $10,000 fine. In addition, the court may impose imprisonment for up to one year. . There appears to be no dispute that Smith is entitled to workers' compensation benefits well in excess of the settlement amount.

10386409

Robert J. KEPLEY, Appellant, v. STATE of Alaska, Appellee

Kepley v. State

1990-05-04

No. A-2919

1020

1023

791 P.2d 1020

791

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T19:36:10.625449+00:00

CAP

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

Robert J. KEPLEY, Appellant, v. STATE of Alaska, Appellee.

Robert J. KEPLEY, Appellant, v. STATE of Alaska, Appellee. No. A-2919. Court of Appeals of Alaska. May 4, 1990. Blair McCune, Asst. Public Defender, and John B. Salemi, Public Defender, Anchorage, for appellant. David Mannheimer, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Douglas B. Baily, Atty. Gen., Juneau, for appellee.

1480

9185

OPINION Before BRYNER, C.J., and COATS and SINGLETON, JJ. COATS, Judge. Robert J. Kepley was convicted of two counts of sexual assault in the first degree and one count of attempted sexual assault in the first degree. Former AS 11.41.-410(a)(3); AS 11.31.100(a). Superior Court Judge Mark C. Rowland sentenced Kepley to serve a total sentence of forty-four years of imprisonment. Kepley appealed to this court, and we affirmed in Kepley v. State, Memorandum Opinion and Judgment No. 823 (Alaska App., May 1, 1985). Kep-ley then filed a petition for a writ of habeas corpus in federal court. The federal court denied the petition on the ground that Kep-ley had not exhausted his state remedies by filing an application for post-conviction relief in state court. Kepley next filed a petition for post-conviction relief. The superior court denied that petition, and Kep-ley appealed that denial to this court. We affirm. In his original appeal Kepley argued that the trial court erred in admitting the testimony of social worker Pamela Montgomery and Police Officer Steven Warner regarding J.L.'s extrajudicial complaints of sexual abuse. We concluded that this testimony had been admitted for a proper non-hearsay purpose. In his application for post-conviction relief, Kepley contended that there had been a significant change in the law which entitled him to relief under Criminal Rule 35.1(a)(7). Specifically, Kepley argues that under Nitz v. State, 720 P.2d 55 (Alaska App.1986), which was decided subsequently to his appeal, it was improper for the court to admit testimony of the social worker and police officer. Nitz, however, was not a change in the law regarding the admission of a victim's statements by other witnesses. In Nitz, we indicated that the presentation of the prior statements of a victim to a jury through other witnesses could be prejudicial and that "the indiscriminate admission of this evidence, without appropriate restrictions and prior to [the victim's] having been called to the stand as a witness, amounted to error." Id. at 71. However, in Kepley's appeal, we evaluated the testimony of Montgomery and Warner. We concluded that the testimony was properly admitted and that the testimony concerning J.L.'s prior reports had minimal impact on the case. We have therefore previously decided this issue adversely to Kepley. We do not believe that there has been a significant change in the law, and there is no reason to believe that we erred in applying the law to this ease. In our original decision we applied an analysis consistent with that later explained in Nitz and concluded that there was no error. Our previous decision accordingly governs this issue, and the trial court did not err in denying Kepley's motion for post-conviction relief on this ground. Kepley next raises several issues concerning his sentence. Kepley first contends that his sentence violates double jeopardy because the two acts of sexual penetration with which he was charged constituted a single episode of sexual abuse. The evidence presented at trial showed that Kepley had slightly penetrated J.L.'s vagina one evening and that Kepley discontinued the sexual contact when J.L. pushed herself away. Kepley forced J.L. to perform fellatio on him the next morning. Kepley contends that the two acts should be treated as a single offense. This argument is answered by our recent holding in Newsome v. State, 782 P.2d 689, 691-92 (Alaska App.1989). In Newsome, we were asked whether multiple convictions for several acts of sexual abuse constituted double jeopardy. Newsome had sexually abused his victim at night, left, and returned the next morning when he began to abuse the victim again. We held that the various acts which took place during the evening episode merged into one count as did those which occurred during the morning. However, we concluded that Newsome could be properly convicted of two separate offenses since there were two distinct incidents of abuse: one in the evening and one in the morning. Id. See also Rodriguez v. State, 741 P.2d 1200, 1206-08 (Alaska App.1987); Oswald v. State, 715 P.2d 276, 280-81 (Alaska App.1986). Similarly, the two acts for which Kepley was convicted were sufficiently distinct to support convictions for two separate offenses. Kepley next contends that even if his separate convictions were proper, the court erred in imposing consecutive sentences. Kepley was convicted of two counts of what was then first-degree sexual assault, former AS 11.41.410(a)(3), and one count of attempted first-degree sexual assault. Judge Rowland imposed a sentence of eighteen years on each of the assault offenses and an eight-year sentence on the attempt offense. Judge Rowland made all of the sentences consecutive. Thus, Kepley's total period of incarceration is forty-four years. Kepley contends that since the time of his conviction, this court has significantly changed the rules regarding the imposition of consecutive sentences and has established bench mark sentences to be imposed on people who sexually assault children. Kepley cites State v. Andrews, 707 P.2d 900 (Alaska App.1985), aff'd 723 P.2d 85 (Alaska 1986), arguing that in light of the new law, his sentence is excessive. Alaska R.Crim.P. 35.1(a)(7). Andrews represented a significant change in the law in one respect: it overruled Griffith v. State, 675 P.2d 662 (Alaska App.1984). In Griffith, we concluded that under AS 12.55.025(g) a court would be obligated to impose consecutive sentences under certain circumstances. 675 P.2d at 664. We reinterpreted the statute in Andrews, concluding that AS 12.55.-025(g) did not require the court to impose consecutive sentences under AS 12.55.-025(g)(4), (5), and (6) as we had held in Griffith. Andrews, 707 P.2d at 907-08. However, the record shows that Judge Rowland was not under the impression that he was under any legal requirement to impose consecutive sentences. Moreover, it is clear that Griffith did not influence Judge Rowland. Kepley was sentenced on September 21, 1983, and filed his notice of appeal on December 6, 1983; Griffith was published on January 13, 1984. Kepley argues that Andrews established certain bench mark sentences which indicate that he should receive a lower sentence. He argues that the Andrews bench marks constitute a significant change in law. There are two answers to Kepley's contention. First, Andrews dealt with cases involving first felony offenders, and Kepley is a third felony offender. Second, Andrews did not constitute a change in the law. Rather, it was an attempt to organize and explain former sentencing decisions, thereby clarifying sentencing ranges. 707 P.2d at 913-17. Except for overruling Griffith, Andrews did not constitute a change in the law. In his notice to the defendant that he intended to dismiss the application for post-conviction relief, Judge Rowland indicated that he did not find that there had been a significant change in the law regarding sentencing. We conclude that Judge Rowland was correct in making this finding. In his notice of intent to dismiss, Judge Rowland also reevaluated Kepley's sentence. Judge Rowland concluded that the defendant was a worst offender and that the forty-four-year sentence was not excessive. From the sentencing record which we have before us, we find that the sentence was not clearly mistaken. At the time of sentencing, Kepley was forty-seven years old. He had an extensive history of felony violations and had spent much of his life in prison. He also had a history of sexual offenses. In 1974, he was originally charged with rape; this charge was reduced to third-degree assault and Kepley spent three months in jail. In 1977, Kepley was convicted of second-degree rape and was sentenced to ten years of imprisonment. He was paroled on March 9, 1982, and was under parole supervision at the time of his present offense in September 1982. When he originally sentenced Kepley, Judge Rowland concluded that Kepley was a worst offender and that rehabilitation was impossible. He found that Kepley was a dangerous offender who needed to be isolated from society for the rest of his life. See Lacquement v. State, 644 P.2d 856 (Alaska App.1982). The record which we have before us supports Judge Rowland's conclusion. The sentence was not clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). AFFIRMED. . Criminal Rule 35.1(a)(7) states that: [a]ny person who has been convicted of, or sentenced for, a crime and who claims . that there has been a significant change in law, whether substantive or procedural, applied in the process leading to applicant's conviction or sentence, when sufficient reasons exist to allow retroactive application of the changed legal standards; may institute a proceeding under this rule to secure relief.

10328842

Celeste S. MARISCAL, Appellant, v. Derek A. WATKINS, Appellee

Mariscal v. Watkins

1996-04-12

No. S-6808

219

224

914 P.2d 219

914

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:39:06.081692+00:00

CAP

Before RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

Celeste S. MARISCAL, Appellant, v. Derek A. WATKINS, Appellee.

Celeste S. MARISCAL, Appellant, v. Derek A. WATKINS, Appellee. No. S-6808. Supreme Court of Alaska. April 12, 1996. Melvin M. Stephens, II, Kodiak, for Appellant. No appearance for Appellee. Before RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

2520

16127

OPINION RABINOWITZ, Justice. I. INTRODUCTION Pursuant to the superior court's final orders regarding child custody and support, Celeste Mariscal was awarded primary legal custody of her three-year old son Zachory. Mariscal now appeals several aspects of the superior court's orders regarding child support and custody. These include provisions prohibiting the consumption of alcohol and engaging in "inappropriate sexual conduct," the superior court's calculation of Mariscal's Civil Rule 90.3 income, and the contingent visitation schedule fashioned by the superior court. II. FACTS & PROCEEDINGS Mariscal met Zachory's father, Derek Watkins, in Kodiak in 1989. They began living together in August of that year. Zachory was born in December of 1991. Mariscal and Watkins separated and reconciled several times between 1989 and July 1993, when they permanently separated. In early 1994 Mariscal filed a petition, pursuant to AS 25.20.060, seeking child support and full custody of Zachory. In his answer, Watkins also sought full custody of Zachory. The parties agreed to an interim custody arrangement in which Zachory would live roughly half the week with each of his parents. The parties also agreed to divide evenly Zachory's day care expenses. The superior court held a trial in the fall of 1994. At trial Mariscal presented evidence of several incidents in which Watkins was verbally abusive to her and engaged in harassing behavior — for example, calling her repeatedly at work and ransacking her apartment. In some of these incidents, either Zachory was present or Watkins actively sought to interject Zachory into the dispute between himself and Mariscal. However, Mariscal also testified that Watkins had never physically abused her. The superior court ordered that a custody investigator be appointed. The investigator prepared a report and testified at trial. The report was based on meetings with both parents with Zachory present, as well as telephonic interviews with various personal and professional references. At trial, the custody investigator testified that the parties' parenting styles complemented each other with Mariscal being more "parental" and Watkins being more of a "buddy" to Zachory. Because Zachory would benefit from significant contact with both parents, the custody investigator recommended that shared physical and legal custody be continued and recommended that the parents enter co-parenting counseling to work out the emotional issues between them. The superior court awarded sole legal custody of Zachory to Mariscal. As to physical custody, the superior court concluded that "Zachory needs to be exposed to the value systems of both parents so that he can learn and grow to become a responsible adult." However, at trial Watkins testified that he planned to move to the Wasilla area and Mariscal testified that she might relocate to Anchorage sometime in the future. Because of this uncertainty as to the parents' future locations, the superior court fashioned elaborate alternative visitation schedules contingent on whether Mariscal and Watkins lived within one hundred driving miles of each other. If Mariscal and Watkins live within one hundred miles of each other, the superior court ordered that the visitation schedule established in the interim custody order be continued. Thus, Watkins would have physical custody from 7:45 a.m. on Monday through 5:00 p.m. on Thursday. The parties would split transportation expenses with each being responsible for transporting Za-chory once a week. If the parties lived more than one hundred miles from each other but both within Alaska, Watkins would have custody the first week and third weekend of every month. The full cost of transportation would be borne by the parent who moved more than one hundred miles from the other. In either case, the court-imposed schedule would continue until Zachory begins to attend school, at which point the parents were to agree on a new schedule. Finally, if either party moved outside of Alaska then the parties would have to agree on custody arrangements, submitting to mediation if no agreement could be reached. The superior court's findings of fact and conclusions of law also contained numerous conditions of custody. These included, inter alia, (1) that "[n]either party shall expose Zachory to inappropriate sexual behavior"; (2) that "[n]either party shall use or be under the influence of alcohol or illegal drugs while Zachory is in his or her custody"; and (3) that "[n]either party shall drive with the child as a passenger within 12 hours after having consumed alcohol." Additionally, the superior court established a child support order pursuant to Alaska Civil Rule 90.3 and ordered that Watkins reimburse Mariscal for half of certain medical and day care expenses which she previously incurred. Subsequently, the superior court denied Mariscal's motion to amend and supplement its findings of fact and conclusions of law. The superior court then entered a final judgment in the matter. Mariscal now appeals. III. DISCUSSION A. The Superior Court's Restrictions Regarding Alcohol Consumption and Sexual Behavior Mariscal challenges three conditions of custody which were included in the superior court's order. As noted above, the superior court imposed the following conditions regarding the consumption of alcohol: (1) that "[n]either party shall use . alcohol . while Zachory is in his or her custody"; and (2) that "[n]either party shall drive with the child as a passenger within 12 hours after having consumed alcohol." Mariscal first notes that the superior court found "that there is no evidence of alcohol abuse. She's an occasional, moderate, and social drinker. There's no abuse. Her consumption is limited and controlled.... " In light of these findings, Mariscal argues that it was an abuse of discretion to impose such stringent limitations on her use of alcohol. She argues that the conditions would prohibit her from even having a single glass of wine with dinner so long as Zachory was in her custody. Further, the conditions are arbitrary because the twelve hour waiting period between having a drink and driving would, for example, prevent her from driving with Zachory in the car the morning after she had a single drink the night before. As to the superior court's provision that neither parent expose Zachory to "inappropriate sexual behavior," Mariscal argues that the provision is "demeaning" and that it is "entirely inappropriate for a court gratuitously to incorporate such a condition into a custody order in the complete absence of any evidence suggesting the existence of a problem." Provisions of a custody award must be supported by findings of fact demonstrating that the superior court properly considered the best interests of the child. We have previously stated that such factors as a parent's sexual conduct are only relevant insofar as "it may be shown to affect the person's relationship to the child." Further, absent evidence of such an effect, we have cautioned trial courts against reference to such factors "[t]o avoid even the suggestion that a custody award stems from a life style conflict between a trial judge and a parent." This caution reflects not only a concern that the superior court consider proper factors in making a custody decision, but also that the superior court not unnecessarily impose its moral values upon a litigant. These principles are applicable to the superior court's imposition of the questioned conditions of custody. In the instant case, the superior court made no findings with respect to Mariscal's sexual conduct, and specifically found that there was no evidence of alcohol abuse on her part. Additionally, we are of the view that the conditions prohibiting use of alcohol when Zachory is in her custody, as well as driving with Zachory within 12 hours after having consumed alcohol, are unreasonably burdensome and insufficiently related to Zachory's best interests. We therefore conclude that the imposition of these conditions was an abuse of discretion, and therefore all three conditions should be vacated. B. The Superior Court's Civil Rule 90.3 Calculation Mariscal argues that the superior court erred in calculating her Civil Rule 90.3 child support obligation because it included income from a second part-time job. According to Mariscal she took this waitressing job in January 1994 to pay off approximately $7,000 in outstanding bills from Zachory's birth. She testified that although she was working as much as three times a week earlier in the year, she had cut back her schedule recently because at the time of trial, business was slow. Mariscal argues that this amount should be excluded. However, this issue is not ripe for our consideration. After Mariscal filed this appeal, Watkins moved to Oregon. He does not presently have physical custody of Zacho-ry for at least thirty percent of the year. Thus, the parties do not have "shared physical custody" as defined in Civil Rule 90.3(f)(1). As a result, child support is calculated pursuant to Civil Rule 90.3(a) rather than 90.3(b), and Mariscal's Rule 90.3 income is irrelevant for purposes of determining Watkins' child support obligation. The superior court's order provides for this contingency in that it provides that the appropriate section of Rule 90.3 should be applied based on whether the actual physical custody is primary or shared. Since presently there is not shared physical custody, Watkins' support obligations are calculated according to only his own income. If and when Watkins assumes shared physical custody, then support will be calculated in accordance with 90.3(b) under the order and the court's determination of Mariscal's income will become ripe for review. Because Mariscal's income is irrelevant to a determination of Watkins' support obligations, and may not ever become relevant, we do not reach the issue of whether Mariscal's adjusted annual income should include income from her second job. C. The Superior Court's Contingent Visitation Schedule According to Mariscal, Watkins has not indicated when and if he plans to move back to Alaska from Oregon. Because one of the parties has moved outside of Alaska, the superior court order directs the parties to agree on custody arrangements and submit to mediation if they cannot agree. As such, the superior court's detailed and potentially burdensome provisions regarding visitation, which Mariscal challenges, are not presently applicable. Because none of these challenged provisions is presently operative, we conclude that Mariseal's appeal of these visitation provisions is not ripe for adjudication. Therefore we do not address Mariscal's various challenges to the superior court's visitation provisions. There is one aspect of the superior court's visitation decision which should be addressed at this time. Mariscal argues that in granting Watkins visitation, the superior court gave insufficient weight to the evidence of Watkins' abusive and anti-social conduct. The superior court's findings reveal that the superior court did consider this conduct. However, Mariscal argues that in light of these findings it was an abuse of discretion on the superior court's part to grant Watkins extensive visitation. Mariscal gives an incomplete picture as to the superior court's assessment of the situation. The superior court noted that there remained a "substantial amount of intran-quility . between Zachory's parents." For Watkins this had manifested itself in extreme jealousy resulting in "yelling and accusations, inappropriate phone messages, and the involvement of Zachory in those instances." However, the problems were not unilateral. The superior court also noted that Mariscal was "immature in how she conducts her relationships" and "uses Zaek as a weapon against [Watkins]." Despite these problems between each other, the superior court observed that there was an "excellent relationship between Zachory and each of his parents." Relying on the testimony of the custody investigator, the court found that the parenting styles of Watkins and Mariscal were complementary and that Zachory would benefit by exposure to both. The superior court particularly commended Watkins for his "willingness to learn parenting skills" and his work to develop a support network. Thus, it appears from the record that most of the problems resulted from the parties' inability to cope with their separation. However, noting that the parties had demonstrated an ability to improve themselves individually, the superior court indicated its hope that the parties could improve their ability to cooperate with each other. The record includes testimony that Watkins loves his child and shows a "genuine concern for Zachory's care and upbringing"; Mariscal's testimony that despite Watkins' jealous behavior, he never physically abused her; and an evaluation from the custody investigator that Watkins was a fit parent. In view of the record, we conclude that the superior court did not abuse its discretion in ordering divided physical custody of Zaehory until he reaches school age. IV. CONCLUSION The superior court abused its discretion by including provisions in its final orders prohibiting Mariscal from engaging in inappropriate sexual conduct, prohibiting Mariscal from consuming any alcohol while Zaehory is in her custody, and prohibiting Mariscal from driving with Zaehory as a passenger within 12 hours after having consumed alcohol. These provisions are VACATED. The superior court's order that Watkins have substantial visitation with Zaehory until he reaches school age was not an abuse of discretion, and is AFFIRMED. . For example, at trial, Mariscal presented an audio tape from her answering machine. During the course of a series of calls, Watkins first accused Mariscal of sleeping with several other men. In the later calls, Watkins put Zachory on the phone and is heard whispering in the back ground, "Say 'Why don't you want to talk to me?' . Ask Mama why she doesn't want to talk to you." Additionally, Mariscal testified that during the course of one argument, Watkins went to his room and put a gun in his pocket. He then picked Zachory up out of his crib and returned to the living room. . The superior court is vested with broad discretion in making child custody determinations. Gratrix v. Gratrix, 652 P.2d 76, 79 (Alaska 1982). This court will reverse the superior court's resolution of custody issues only if this court is convinced that the record shows an abuse of discretion or if controlling factual findings are clearly erroneous. Abuse of discretion is established if the trial court considered improper factors or failed to consider statutorily-mandated factors, or improperly weighted certain factors in making its determination. McQuade v. McQuade, 901 P.2d 421, 426 n. 9 (Alaska 1995) (citations omitted). . See Hakas v. Bergenthal, 843 P.2d 642, 644-45 (Alaska 1992). . Britt V. Britt, 567 P.2d 308, 311 (Alaska 1977). . Craig v. McBride, 639 P.2d 303, 306 (Alaska 1982). . See Bowers Office Prod. v. University of Alaska, 755 P.2d 1095, 1098-99 (Alaska 1988); cf. Tulkisarmute Native Community Council v. Heinze, 898 P.2d 935, 940 n. 7 (Alaska 1995). . See Bowers, 755 P.2d at 1096; Lamoreux v. Langlotz, 757 P.2d 584, 585 (Alaska 1988). .In its oral and written findings, the court noted that Watkins had used various controlled substances, had threatened other men who he believed were involved with Mariscal, and had generally been verbally abusive toward Mariscal. . The superior court concluded that once Zacho-ry reaches school age, his parents are to agree to a new visitation schedule. Because Zaehory was almost three years old at the time the superior court entered its December 1994 custody order, it is by its own provisions relatively short-term.

9399209

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

Alexander v. State

2001-12-28

No. A-7839

543

545

38 P.3d 543

38

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T19:39:17.831913+00:00

CAP

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

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

Donald L. ALEXANDER, Appellant, v. STATE of Alaska, Appellee. No. A-7839. Court of Appeals of Alaska. Dec. 28, 2001. G. Blair McCune, Deputy Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant. Michael J. Stark, Assistant Attorney General, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

664

4386

OPINION COATS, Chief Judge. Donald L. Alexander was convicted of sexual assault in the first degree and sexual abuse of a minor in the second degree. Superior Court Judge Thomas M. Jahnke ordered the two convictions to merge, and imposed a fifteen-year sentence with five years suspended. As part of his sentence, Judge Jahnke ordered "defendant [to] take advantage of sex offender . programs that are available in the facility unless an evaluator in the facility indicates that it's not necessary." Within a few months of his projected release date, Alexander was transferred from Arizona to Lemon Creek Correctional Center near Juneau and enrolled in the pre-treatment sex offender program. This program was for prisoners who were within six months of release as preparation for treatment outside the prison as part of their probation or parole. Alexander was removed from the program on the ground that he was not in compliance with the program's requirements. As a result of his discharge from the program, the parole board revoked Alexander's parole because of his failure to comply with Judge Jahnke's order requiring him to take advantage of sex offender treatment programs in the facility. Alexander then filed an application for post-conviction relief challenging the parole board's decision. Superior Court Judge Trevor N. Stephens granted the state's motion for summary disposition. Alexander appeals from this decision. We affirm. Alexander first contends that Judge Jahnke's order requiring him to "take advantage of sex offender . programs that are available in the facility" was insufficient to support his parole revocation. Alaska Statute 12.55.015(a)(10) authorizes a court to "order the defendant, while incarcerated, to participate or comply with the treatment plan of a rehabilitative program that is related to the defendant's offense or to the defendant's rehabilitation if the program is made available to the defendant by the Department of Corrections." - Alexander essentially contends that "take advantage of" has a materially different meaning than "participate in or comply with." - In granting the state's motion for summary disposition, Judge Stephens ruled that "take advantage of" meant that Alexander had to "enroll in and fully participate" in the treatment program. Despite the parole board's reference to Alexander's failure to complete the treatment program, Judge Stephens found that the parole board's decision was that Alexander had failed to meaningfully participate in the program. We agree. In his judgment, Judge Jahnke ordered, rather than recommended, Alexander to take advantage of all sex offender programs. It seems clear that Judge Jahnke was issuing an order that derived its authority from AS 12.55.015(a)(10) and that he was requiring Alexander "to participate in . the treatment plan." We believe that Judge Jahnke's order gave Alexander sufficient notice that he was to make meaningful efforts to participate in the treatment program. Alexander next contends the parole board's decision to revoke his parole for noncompliance with the treatment program was based on insufficient evidence. The parole board's factual determinations are reviewed "to determine whether the decision was supported by substantial evidence," while its discretionary authority "is reviewed under the 'reasonable basis' standard to insure that [the board's] determinations are supported by evidence in the record as a whole and there is no[t] abuse of discretion." Stephens found that "though Mr. Alexander did not refuse to participate in all aspects of 'the' program, it is clear that he chose not to fully participate . [and it was] reasonably determined that his removal was appropriate." This finding is supported by the record. We affirm Judge Stephens's order granting the state's motion for summary disposition. Judge AFFIRMED. . AS 11.41.410. . AS 11.41.436. . Covington v. State, 938 P.2d 1085, 1090-91 (Alaska App.1997) (citations omitted).

10383859

HOMEWARD BOUND, INC., Appellant, v. ANCHORAGE SCHOOL DISTRICT and Municipality of Anchorage, Appellees

Homeward Bound, Inc. v. Anchorage School District

1990-04-27

No. S-2880

610

615

791 P.2d 610

791

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:36:10.625449+00:00

CAP

Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON, and MOORE, JJ.

HOMEWARD BOUND, INC., Appellant, v. ANCHORAGE SCHOOL DISTRICT and Municipality of Anchorage, Appellees.

HOMEWARD BOUND, INC., Appellant, v. ANCHORAGE SCHOOL DISTRICT and Municipality of Anchorage, Appellees. No. S-2880. Supreme Court of Alaska. April 27, 1990. William M. Bankston and Paul D. Sey-ferth, Bankston, McCollum & Fossey, Anchorage, for appellant. Howard S. Trickey and Toby N. Stein-berger, Jermain, Dunnagan & Owens, P.C., Anchorage, for appellee Anchorage School Dist. James E. Ramsey, Deputy Mun. Atty., Scott A. Brandt-Erichsen, Asst. Mun. Atty., and Richard D. Kibbey, Mun. Atty., Anchorage, for appellee Municipality of Anchorage. Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON, and MOORE, JJ.

2770

17539

OPINION MOORE, Justice. This appeal presents two questions. The first is whether the owner of land designated a school site by the Anchorage Municipal Assembly may compel the Anchorage School District to consummate the purchase. If not, the' second question is whether the property owner may recover from the Municipality of Anchorage damages equal to the property's diminution in value resulting from the temporary designation. I. FACTUAL AND PROCEDURAL BACKGROUND Homeward Bound owned a twenty-five acre parcel of land in east central Anchorage. Homeward Bound initially sought to rezone the property to permit a wider variety of land uses. When neighboring landowners objected, Homeward Bound decided to target the School Board and the Municipal Parks Department as potential purchasers. The Parks Department purchased 10 acres of land. In August 1985, Homeward Bound through its agent DOWL Engineers requested in writing that the Anchorage School District consider the remainder of its land as a possible elementary school site. Neighboring landowners agreed to support the school site acquisition campaign in exchange for Homeward Bound's agreement to postpone efforts to rezone the remaining property or to sell individual lots. Since that time, Homeward Bound has not actively pursued other development or sales opportunities. In May 1986, the School District and the Municipal Planning Department issued a joint study of three proposed school sites, including that owned by Homeward Bound. The joint study recommended that the Anchorage Municipal Assembly designate one of the other two sites. Following a public hearing in September, however, the Municipal Assembly passed a resolution selecting Homeward Bound's property for an elementary school site. Assembly Res. 86-192(S). The School Board did not purchase the property. A year later, the Municipal Assembly passed a second resolution authorizing the purchase. Assembly Res. 87-224(S). The School District again did not purchase the property, maintaining that it had no immediate need for a new school in east central Anchorage. Homeward Bound sued the Municipality and the School District seeking either to force the School District to purchase its property or to recover damages equal to the diminution in value of its property since the September 1986 school site designation. Homeward Bound moved for summary judgment against both defendants. The School District cross-moved for summary judgment, and the superior court entered judgment for the District. The Municipality moved to dismiss Homeward Bound's claims against it for failure to state a claim upon which relief can be granted. See Alaska R.Civ.P. 12(b)(6). The superior court granted the motion and entered judgment for the Municipality. Homeward Bound appeals. II. STANDARD OF REVIEW Because the first amended complaint asserts identical claims for relief against the School District and the Municipality, the superior court effectively ruled that the claims against both entities could be disposed of under either Civil Rule 12(b)(6) or Civil Rule 56. The superior court may enter summary judgment if the evidence in the record fails to present a genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Alaska R.Civ.P. 56(c). The court must draw all reasonable inferences of fact against the moving party and in favor of the non-moving party. Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985). In contrast, the superior court may grant a Rule 12(b)(6) motion to dismiss for failure to state a claim only if the complaint sets forth no factual allegations supporting any enforceable cause of action. Knight v. American Guard & Alert, 714 P.2d 788, 791 (Alaska 1986). If the parties present materials outside the pleadings, the court must state affirmatively whether or not it considered the materials presented. Reed v. Municipality of Anchorage, 741 P.2d 1181, 1184 (Alaska 1987). If the court considers matters outside the pleadings, it must treat the motion to dismiss as a motion for summary judgment pursuant to Civil Rule 56. Id.; Alaska R.Civ.P. 12(b)(6). When the superi- or court does not state whether or not it excluded the evidence outside the pleadings, we may remand for proper consideration, review the decision as if the Rule 12(b)(6) motion was granted after exclusion of the outside materials, or review the decision as if the court granted a motion for summary judgment. Reed, 741 P.2d at 1184. In this case, the superior court did not indicate whether or not it was considering evidence outside the pleadings. We elect to review the entire decision as if the court entered summary judgment for each defendant pursuant to Civil Rule 56. III. HOMEWARD BOUND CANNOT COMPEL THE SCHOOL DISTRICT TO CONSUMMATE THE SALE BECAUSE THE SCHOOL DISTRICT HAS DISCRETION WHETHER TO ACQUIRE PROPERTY SELECTED BY THE MUNICIPAL ASSEMBLY AS A POTENTIAL SCHOOL SITE Homeward Bound argues that once the Municipal Assembly designates a school site, the School District must consummate the purchase within a reasonable period of time. The Municipality and the School District contend that the District has discretion whether or not to acquire Assembly-selected sites. The scope of the School Board's authority is a question of statutory interpretation upon which we must exercise our independent judgment. Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 904 (Alaska 1987). We look first at the language of the state and local statutes construed in light of the purposes for which they were enacted. Id.; Concerned Citizens v. Kenai Peninsula Borough, 527 P.2d 447, 454 (Alaska 1974). The relationship between the School District and the Municipal Assembly consists of a number of checks and balances. The School Board has primary management authority over the municipal school system. Although the Assembly determines the total amount of the School District budget, it cannot make appropriations for specific items. While the Assembly determines the location of school buildings and provides for construction and major rehabilitation and repair, AS 14.14.060(d), (f), the School Board, establishes design criteria and is responsible for routine maintenance and custodial services, AS 14.14.060(e), (f). In contrast, the Municipal Assembly has a much more direct interest in the acquisi tion of real property. All municipal land, including school sites, is held in the name of the Municipality. AMC 25.10.040. The Municipal Assembly must approve all acquisitions of real property unless the purchase of a specific site was authorized in a capital improvement budget. AMC 25.20.-020(A)(1). The Assembly must approve the commencement of eminent domain proceedings on behalf of the Municipality. AS 29.35.030; AMC 25.20.020(b). No contract for the acquisition of land is enforceable against the Municipality unless it complies with AMC 25.10.010-.080. In Tunley v. Municipality of Anchorage School District, 631 P.2d 67, 70 (Alaska 1981), parents of the school-age children sued to enjoin the School District from closing two elementary schools. The parents argued that the Municipal Assembly's statutory authority to "determine the location of schools" necessarily included the exclusive power to close schools. 631 P.2d at 74. We ruled that as between the School Board and the Municipal Assembly, the Board has ultimate authority to decide whether to close a school. 631 P.2d at 77. We reasoned that the School Board is an elected legislative body with legal responsibilities distinct from those exercised by the Assembly, particularly with respect to school system budgetary matters. 631 P.2d 75. While we recognized that AS 14.14.060(d) gives the Assembly a direct interest in the selection of new sites based on its power of eminent domain and its obligation to compensate the owners of condemned property, we concluded that AS 14.12.020(b) authorizes the School Board to make school closure decisions. 631 P.2d at 76-77. We do not believe, that the Assembly's designation of land as a potential school site is sufficient to allow the owner of the land to force the School District to consummate the purchase. Because the School District budget is the source of money to purchase a school site, and the Assembly is unable to appropriate School District funds for specific items, and the School District has management authority over the budget as well as district operations, the Assembly may not force the District to spend money to acquire a particular site. The Assembly's authority is limited to the decision which site, if any, may be acquired. All the hearings and recommendations by the Assembly and the School Board were preliminary and conditional. Homeward Bound has no right to compel a sale by virtue of the Assembly designation. IV. THE MUNICIPAL ASSEMBLY'S DESIGNATION OF HOMEWARD BOUND'S PROPERTY AS A POTENTIAL SCHOOL SITE DID NOT CONSTITUTE A COMPEN-SABLE TAKING Homeward Bound argues in the alternative that the designation of its property as a potential school site is a taking for which Homeward Bound may recover just compensation under article I, section 18 of the Alaska Constitution. Specifically, Homeward Bound contends that it is enti- tied to- recover damages for the diminution in value of its property while the designation was in effect. The School Board and the Assembly contend that the designation does not require the payment of just compensation as a matter of law. "Private property shall not be taken or damaged for public use without just compensation." Alaska Const, art. I, § 18. Article I, section 18 is liberally construed in favor of the property owner. Bakke v. State, 744 P.2d 655, 657 (Alaska 1987). The requirement that the condemnor pay just compensation when property is damaged provides broader protection for private property rights than the fifth amendment to the United States Constitution. Id.; State v. Doyle, 735 P.2d 733, 736 (Alaska 1987). Private property is taken or damaged for constitutional purposes if the government deprives the owner of the economic advantages of ownership. Once private property is taken or damaged, the owner is entitled to be placed in the same position as he would have occupied absent the governmental interference. Id.; see also State v. Doyle, 735 P.2d 733, 735-36 (Alaska 1987) (awarding just compensation for loss of appreciation in value). It is irrelevant whether the taking was intentional or whether the government benefit-ted from it. Bakke, 744 P.2d at 657. However, in cases such as this one where the alleged taking is based on precondem-nation decisions concerning the subject property, the objective manifestations of the government's intention to take the property are critical to the decision whether there was a taking. This is because the government's indications of its intention to condemn the property are the source of the owner's claimed damages. In Klopping v. City of Whittier, 8 Cal.3d 39, 104 Cal.Rptr. 1, 500 P.2d 1345 (1972), the California Supreme Court held that when the government publicly expresses its intention to condemn property, a condemnee must be provided with the opportunity to demonstrate that (1) the public authority acted improperly either by unreasonably delaying eminent domain action following an announcement of intent to condemn or by other unreasonable conduct prior to condemnation; and (2) as a result of such action the property in question suffered a diminution in market value. 104 Cal.Rptr. at 11, 500 P.2d at 1355. Later, in Selby Realty Co. v. City of San Buenaventura, 10 Cal.3d 110, 109 Cal. Rptr. 799, 514 P.2d 111 (1973) the court held that the mere enactment of a general plan showing proposed streets extending through private property did not constitute a taking because there was "no present concrete indication that the county either intends to use plaintiff's property for the proposed streets or that it intends to acquire the property by condemnation." The court distinguished Klopping on the ground that "the adoption of a general plan is several leagues short of a firm declaration of an intention to condemn property." 109 Cal.Rptr. at 806, 514 P.2d at 117. Here, the Assembly's designation of Homeward Bound's property as a potential school site did not amount to a concrete indication that it intended to condemn the property. Whether the Municipality would condemn the property depended entirely on the decision of an independent agency, the School District. The District never indicated that it intended to choose Homeward Bound's property to build its school. In fact, in its joint study with the Municipal Planning Department of three proposed school sites, the School District recommended that the Assembly designate a different site. Since the district indicated that it did not intend to choose Homeward Bound's property to build its school, the Assembly's mere designation of the property as a school site was not a concrete indication that the Municipality intended to condemn the property. The decision of the superior court is AFFIRMED. . AS 14.12.020(b) ("Each borough or city school district shall be operated on a district-wide basis under the management and control of a school board."); Anch.Mun. Charter § 6.03. Among other things, the School Board has the power to formulate policy, appoint- and remove personnel, serve as a board of personnel appeals, and supervise the fiscal affairs of the district. Anch. Mun. Charter § 6.03. . Anch.Mun. Charter § 6.05(b) ("The Assembly may increase or decrease the budget of the School District only as to total amount."); see also AS 14.14.060(c). AS 14.14.060 provides in part: (c)The borough school board shall submit the school budget for the following school year to the borough assembly by April 1 for approval of the total amount. Within 30 days after receipt of the budget the assembly shall determine the total amount of money to be made available from local sources for school purposes and shall furnish the school board with a statement of the sum to be made available. . (d) The borough assembly shall determine the location of school buildings with due consideration to the recommendations of the borough school board. (e) The borough school board is responsible for the design criteria of school build-ings_ The school board shall submit preliminary and subsequent designs for a school building to the assembly for approval or disapproval . (f) The borough school board shall provide custodial services and routine maintenance for school buildings and shall appoint, compensate, and otherwise control personnel for these purposes. The borough assembly through the borough administrator, shall provide for all major rehabilitation, all construction and major repair of school buildings. The recommendations of the school board shall be considered in carrying out of the provisions of this section. Under AS 14.14.065, AS 14.14.060 also applies to the relationship between the Anchorage School District and the Anchorage Municipal Assembly. Tunley v. Municipality of Anchorage School Dist., 631 P.2d 67, 74 & n. 14 (Alaska 1981). . Anch.Mun.Code ("AMC") 25.10.010 defines "municipal land" as "any real property owned by the Municipality of Anchorage, including real property to which the Anchorage School District has been granted management authority pursuant to section 25.10.050." . AMC 25.10.020(B). It provides: "No contract, lease or conveyance pertaining to the acquisition or disposal of real property by the municipality may be enforced against the municipality, unless the contract, lease or conveyance was awarded, approved and executed in accordance with this title." .The requirement that the Assembly designate a school site serves two salutary purposes. First, it provides an early opportunity for Assembly participation in the site selection process. Second, the designation of a specific site in the School District's capital improvement budget obviates the need for subsequent Assembly approval of the acquisition under AMC 25.-20.020(A)(1). Should the School Board reject a site approved by the Assembly, the Assembly may exercise the power of eminent domain to acquire the property for a public purpose pursuant to AS 29.35.030 and AMC 25.20.020(B). . The economic advantages incident to the ownership of unimproved property are the potential for appreciation and the opportunity for development. Stewart & Grindle, Inc. v. State, 524 P.2d 1242, 1247 (Alaska 1974). . 109 Cal.Rptr. at 805, 514 P.2d at 116. The court also held that the plaintiff failed to state a justiciable claim for declaratory relief on the ground that he has "no greater right to secure a declaration as to the validity of the plan or its effect upon his land than that available to any other citizen whose property is included within the plan." 109 Cal.Rptr. at 798, 514 P.2d at 115.

10348682

John BINDER, Appellant, v. FAIRBANKS HISTORICAL PRESERVATION FOUNDATION and Alaska National Insurance Company, Appellees

Binder v. Fairbanks Historical Preservation Foundation

1994-08-26

No. S-5501

117

123

880 P.2d 117

880

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:36:47.580427+00:00

CAP

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

John BINDER, Appellant, v. FAIRBANKS HISTORICAL PRESERVATION FOUNDATION and Alaska National Insurance Company, Appellees.

John BINDER, Appellant, v. FAIRBANKS HISTORICAL PRESERVATION FOUNDATION and Alaska National Insurance Company, Appellees. No. S-5501. Supreme Court of Alaska. Aug. 26, 1994. Michael A. Stepovich, Fairbanks, for appellant. Theresa Hennemann and Elizabeth D. Goudreau, Faulkner, Banfield, Doogan & Holmes, Anchorage, for appellees. Before MOORE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ., and BRYNER, J. Pro Tern. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

3444

21747

OPINION MOORE, Chief Justice. This workers' compensation case concerns the extent of an employer's liability for reemployment benefits pursuant to AS 23.30.041. John Binder (Binder) seeks a ruling permitting the Alaska Workers' Compensation Board (Board) to require that his employer pay for a second reemployment plan after Binder's first plan failed to meet the expectations of all involved parties. Binder asserts that, although he completed all of the training contemplated by his first plan, the plan did not adequately prepare him to compete in his chosen field. The Board awarded Binder a second reemployment plan. Binder's employer, the Fairbanks Historical Preservation Foundation, and its insurance carrier, Alaska National Insurance Company (collectively referenced as FHPF), contend that AS 23.30.041(k) and (0 set forth the maximum amount of time and money available for any number of reemployment plans which Binder pursues. Because the aggregate cost of Binder's first and second plans will exceed the $10,000 limitation of AS 23.30.041(0, and their total time will exceed the two year time limit of AS 23.30.041(k), FHPF asserts that the Board erred as a matter of law in approving Binder's proposed new plan. The superior court agreed with FHPF, ruling that the statutory time and cost constraints set forth in AS 23.30.041(k) and (l) limit the Board's authority to extend Binder's reemployment benefits. We affirm. I. Facts and Proceedings Most of the operative facts in this ease are uncontested. In 1988 Binder worked for the Fairbanks Historical Preservation Foundation on the restoration project of the riverboat "Nenana." In August 1988 Binder lost four fingers on his left hand while performing carpentry work. . FHPF accepted Binder's worker's compensation claim. In the fall of 1988, Binder .was determined to be eligible for reemployment benefits pursuant to AS 23.30.041. Binder and the rehabilitation counselor of his choice agreed upon a written reemployment plan that would provide Binder with on-the-job training in the field of videotape editing. FHPF agreed to this plan, which went into effect around January 13, 1989. The goal of the written plan was to provide sixteen weeks of training between January and May 1989, after which Binder would be able to control video consoles and television monitors and "edit[] video tapes, graphics and computerized effects in order to create a variety of productions such as television commercials, special broadcast segments and corporate training films." To acquire these skills, Binder received two weeks of technical training in the area of basic video editing from Alaska Video Productions of Fairbanks. Binder then traveled to California for two weeks of intensive training with CMX Corporation, and he returned to Fairbanks for an additional twelve weeks of on-the-job training with Alaska Video Productions. Binder completed his training around May 5, 1989. FHPF expended $6,058.12 to implement Binder's reemployment plan. Shortly after his completion of the plan, Alaska Video Productions terminated Binder because he lacked the technical skills necessary for the job. Binder then requested that his training period be extended so that he could obtain the necessary skills for videotape editing. In the alternative, Binder requested a new reemployment plan that would return him to remunerative employability as set forth in AS 23.30.041(i) and (p)(7). The Rehabilitation Benefits Administrator designee (RBA) determined that Binder's reemployment plan had failed because it had not provided him with the skills necessary to compete in the video editing labor market. The RBA concluded that the plan could not be successfully modified to provide Binder with' adequate skills in video editing within the two year time span mandated by AS 23.30.041(k), and that Binder therefore was entitled to a new reemployment plan. Pursuant to the RBA's decision, Binder and a new rehabilitation specialist developed a second reemployment plan. The proposed second plan was designed to train Binder in the field of nondestructive testing. The plan required eighteen months of out-of-state schooling in nondestructive testing and was projected to cost approximately $9,913. FHPF appealed the RBA's decision awarding Binder a second plan. FHPF agreed that the first plan had failed to meet the expectations of the parties in that it did not provide Binder with all of the skills he had hoped to acquire. However, FHPF claimed that it should not be held responsible for Binder's disappointment in the outcome of his plan, particularly when Binder had developed and pursued the plan with knowledge of the limited broadcasting market in Fairbanks. More significantly, Binder had not expressed dissatisfaction with his plan until its completion. Accordingly, FHPF argued to the Board that (1) AS 23.30.041 provides for only one reemployment plan; (2) even if additional plans are authorized, FHPF could only be hable for a maximum of two years of reemployment benefits and a total $10,000 in cost for any number of plans; and (3) Binder was already "remuneratively employable" as defined in AS 23.30.041(p)(7) because he had returned to work for greater than 60% of his gross wages at the time of injury. The Board reviewed the RBA's decision for an abuse of discretion. It found that "[i]f the video plan was fatally flawed from its inception, it was not a valid 'plan' under the statute and the employee is still entitled to one (and only one) valid plan." The Board concluded that the RBA had not abused her discretion in finding the first plan invalid because it could not provide Binder with adequate skills within the time constraints provided by AS 23.30.041(k). The Board therefore upheld the RBA's order requiring FHPF to pay for a second reemployment plan which could cost up to $10,000 and could take up to two years. The superior court reversed the Board's decision. The court determined that the issue to be resolved was one of statutory interpretation, which is not entitled to deferential review. It then found that Binder's first reemployment plan was valid at the time it was prepared; there was no evidence to suggest that the procedures set forth in .AS 23.30.041(h) were not followed in developing the plan, or that the plan was premised on an unreasonable expectation that Binder would acquire sufficient skills to be remuneratively employable in the video editing field after a sixteen week training period. Upon concluding that the plan comported with the procedural aspects of the statute, the court determined that the Board's award of a second rehabilitation plan violated the express terms of AS 23.30.041(k) and (l) because it exposed FHPF to aggregate reemployment training costs greater than $10,000 and extended benefits past the statutory two year time limit. Binder appeals. II. Standard of Review The issue in this appeal is one of statutory interpretation: whether the Board violated mandatory statutory limitations on available reemployment benefits by ordering FHPF to finance a second reemployment plan that, in conjunction with Binder's first plan, will exceed the $10,000 cost limitation and the two year time limit set forth in AS 23.30.041© and (k). This question is a legal one which does not involve any administrative expertise or the formulation of fundamental policy. We therefore apply the independent judgment standard of review. Flisock v. State, Div. of Retirement & Benefits, 818 P.2d 640, 642 (Alaska 1991). Exercising our independent judgment, we will adopt the statutory interpretation that is "most persuasive in light of precedent, reason and policy." Langdon v. Champion, 745 P.2d 1371, 1372 n. 2 (Alaska 1987). Binder argues that application of the reasonable basis standard of review is appropriate. He asserts that "how a particular injured worker is evaluated, how a reemployment plan is devised, and put into effect, and whether or not it ultimately succeeds or fails" are vocational rehabilitation issues best determined by experts in the field. Moreover, since the statute does not address "failed" reemployment plans, Binder argues that AS 23.30.041 is ambiguous, and that the Board made a policy determination placing the financial risk of failed plans on employers. According to Binder, this policy determination should be accorded deferential review. We disagree. The question in this case is not whether the Board reasonably determined that Binder could not successfully perform in the video editing field within the statute's two year time limit. Nor is there any question about the particular reemployment training that would be most appropriate for Binder. Accordingly, the Board's expertise in vocational rehabilitation is not implicated in this case. The fundamental question is one of statutory interpretation, to which we apply our independent judgment. III. Discussion The Board's order for a second reemployment plan violated AS 28. 80. 04.1(1). Alaska Statute 23.30.041 provides for workers' compensation reemployment benefits. Pursuant to subsection (h) of the statute, an eligible injured worker must cooperate with a rehabilitation specialist to formulate a reemployment plan which contains a variety of information, including the occupational goal of the plan, a detailed schedule for achieving the goal, an estimation of time and cost, and an assessment of the worker's skills and capabilities. See AS 23.30.041(h). As part of the plan, the rehabilitation counselor must determine that, in light of the worker's skills and capabilities, the worker "can be reasonably expected to satisfactorily complete the plan and perform in a new occupation within the time and cost limitations of the plan." AS 23.30.041(h)(9). The statutory time and cost limitations for the reemployment plan are set forth in AS 23.30.041(k) and (Z), which provide: (k) Benefits related to the reemployment plan may not extend past two years from the date of plan approval or acceptance, whichever date occurs first, at which time the benefits expire.... (Z) The cost of the reemployment plan incurred under this section shall be the responsibility of the employer, shall be paid on an expense incurred basis, and may not exceed $10,000. Binder argues that the time and cost ceilings of subsections (k) and (Z) only begin to accrue when a reemployment plan is in fact successful, i.e., when the injured worker is successfully restored to remunerative em-ployability as envisioned by the plan. Binder asserts that, when a plan is not in fact successful, the time and cost limitations of AS 23.30.041(k) and (Z) are not set in motion, and the employee still has the full two years and $10,000 to use as part of a new, valid plan. Thus, Binder argues, the term "reemployment plan" includes only valid or successful plans, and employers must bear the financial risks associated with failed plans. As a result, Binder claims that FHPF may be lawfully required to bear the cost of his second plan. The definition of a "reemployment plan" urged by Binder is inconsistent with a reasonable reading of the statute's language. Binder proposes a very technical definition which is not only unsupported by the language of the statute or its legislative history, but would create unsound policy. Binder's argument to recognize only "successful" plans would encourage employees to bring hindsight challenges to their plans, thereby undermining efficiency and finality in the implementation of AS 23.30.041. This construction would also transform employers into insurers of every rehabilitation effort, a result the Legislature surely did not intend. We therefore reject Binder's argument and conclude that any time and money spent on Binder's first reemployment plan must be counted toward the statutory máximums for which FHPF may be liable. A number of circumstances support this conclusion. First, there is nothing to suggest that Binder's first reemployment plan was not valid. From the record, it appears that all of the procedural requirements of AS 23.30.041(h) were satisfied in developing the plan. Further, all the parties agreed to the plan, thereby satisfying the acceptance or approval provision of AS 23.-30.041(j). Significantly, had there been any disagreement about the terms of the plan, any party could have submitted the plan to the RBA for approval. AS 23.30.041(j). The RBA's decision could be reviewed in a hearing before the Board, Id. The Board's resulting order would operate as a final adjudication of the issue. We view the parties' agreement on a plan in a similar perspective. That is, once the plan has been formulated and approved by the parties and the rehabilitation specialist, see AS 23.30.041(h), (j), their agreement acts as an adjudication which may be altered only for limited reasons, such as a showing of fraud, misrepresentation, or a failure to meaningfully or substantially comply with the statutory requirements. There is no evidence of such circumstances in this case. Prior to signing the plan, FHPF's obligation was to review it for compliance with the statute and, if reasonable, to agree to the employee's desired reemployment training. FHPF met this obligation here. It had no obligation to insure the ultimate success of every aspect of or expectation associated with the plan. Similarly, no evidence in the record suggests that Binder's chosen rehabilitation counselor failed to comply with AS 23.30.041(h) in designing and approving the video editing plan. One aspect of the counselor's approval was his finding that Binder could "be reasonably expected to satisfactorily complete the plan and perform in a new occupation within the time and cost limitations of the plan." AS 23.30.041(h)(9). There has been no determination that this finding was unreasonable at the time it was made. Standing alone, Bind er's apparent misperception either of his own skills and interests, or of the nature of the video editing market in Fairbanks is insufficient to invalidate his plan. Given that Binder's first plan was valid, we next review the language of AS 2S.30.041(k) and (l). In doing so, we find that the unambiguous language of these subsections states that an employer's total exposure for any number of reemployment plans an employee pursues must be capped at $10,-000 and two years in time. We therefore reject Binder's arguments in favor of a contrary ruling. See Yahara v. Construction & Rigging, Inc., 851 P.2d 69, 72 (Alaska 1993) (this court "will neither modify nor extend a statute if its language is unambiguous and expresses the legislature's intent, and if its legislative history reveals no ambiguity"); Zoerb v. Chugach Elec. Ass'n, 798 P.2d 1258, 1260 (Alaska 1990) (where a statute's meaning appears clear and unambiguous, the party asserting a different meaning bears a heavy burden of demonstrating contrary legislative intent). In addition to the express language of the statute, our conclusion is compelled by the legislative history of the 1988 amendments to the act. Numerous committee hearing records reflect that one of the primary goals in revising the vocational rehabilitation system was to control the costs of rehabilitation. This was accomplished by a number of measures, including making reemployment training voluntary and limiting the time and money available for that training. See, e.g., An Act Relating to Workers' Compensation, and Providing for an Effective Date: Hearings on SB 322 before the House Judiciary Comm., 15th State Leg. (April 16, 1988) (statement of Committee Chairperson John Sund that the revisions to the vocational rehabilitation system attempted to remedy the problems of the act by making the system voluntary, and by limiting rehabilitation to two years and a maximum. $10,000); id. (statement of Dick Cattanach, member of the task force recommending changes to AS 23.-30.041, that the intent of the task force was to cut the cost of reemployment benefits); id. (April. 15, 1988) (statement of Committee Chairperson John Sund that the bill attempted to control costs' by measures including the $10,000 cap on vocational rehabilitation); see also House Judiciary Comm., 15th State Leg., Sectional Analysis of House Judiciary Comm. Substitute for Senate Bill 322, at 5 (April 6, 1988) [hereafter House Analysis] (indicating that the purpose of the two year and $10,000 limitations was "to encourage efficient and realistic use of rehabilitation monies by placing .a reasonable limit on them," and noting that the overall goal of the revisions to the vocational rehabilitation system' was to promote a system that is more prompt, more efficient, more cost-effective and less-litigated). The legislative history also indicates that the two year time limitation was intended to return injured workers to the work force as expeditiously as possible. This goal was premised on studies showing that the longer an employee is out of the work force, the less likely it becomes that the worker will successfully return to it. See House Analysis at 4-5 (noting that all known rehabilitation studies conclude that early rehabilitation is much more likely than later efforts to result in a return to work). Allowing a new or substantially revised reemployment plan to restart the two year clock would impede this" objective. Similarly, interpreting the $10,000 limitation to apply independently to every new reemployment plan would undermine the goal of cost control. It would also adversely affect the efficiency and certainty of the reemployment training program, since there would always be a possibility that an employee could have his or her first plan declared unsuccessful, and obtain a new plan for which the employer would have entirely new responsibility. For these reasons, we conclude that any time or money spent on the implementation of a reemployment plan agreed upon or approved pursuant to AS 23.30.041(j) must be counted toward the statutory máximums set forth in AS 23.30.041(k) and (l). In this case, the Board clearly violated AS 23.30.041(0 by ordering that FHPF must pay for a second reemployment plan that, in conjunction with the cost of Binder's video editing plan, certainly will exceed the $10,000 limitation. IV. Conclusion In sum, based on the express language of the statute as well as all indications gleaned from its legislative history, we conclude that subsections (k) and (0 set forth an employer's total liability for any number of reemployment plans that an employee pursues. As FHPF notes, the Board's holding to the contrary could subject an employer to unlimited exposure for multiple reemployment plans, in violation of the statute's language as well as the Legislature's intention. Because the Board's order clearly exposes FHPF to reemployment training costs in excess of $10,000, we AFFIRM the ruling of the superior court which reversed the Board's decision. . Following his termination from Alaska Video Productions, Binder was employed for various intervals by FHPF as a painter and sander, by the Fairbanks North Star Borough as a parks laborer, and by a car wash as an attendant. . When the superior court acts as an intermediate court of appeal, we will directly and independently review the merits of the administrative determination. Flisock, 818 P.2d at 642. . We reject FHPF's claim that AS 23.30.041 rigidly authorizes only one reemployment plan which, once accepted or approved, cannot for any reason be modified in favor of a different plan. We see very little in the statutory language or in its legislative history to suggest that a plan may not be modified or terminated in favor of a more suitable plan if circumstances arising during reemployment training so warrant and if approval is obtained pursuant to AS 23.30.041(j). To find otherwise would remove all flexibility from the statute and could hinder the goal of providing effective reemployment training. We find only- that any time or money expended toward prior reemployment efforts must be counted toward the employer's total liability under subsections (k) and (/). . Moreover, the revisions making reemployment training voluntary were designed to promote an employee's active participation in selecting his or her rehabilitation specialist and in designing the reemployment plan. AS 23.30.041(g), (h). Given this, there is little justification for allowing the employee to later challenge the plan as unsuccessful and obtain a new plan with no offset for the time and money expended toward the earlier plan. . In conjunction with Binder's first plan, the actual training time taken by his proposed second plan would total 22 months. The parties do not specifically address whether this time period violates AS 23.30.041(k), since they do not discuss whether the two year time limitation may be tolled by interruptions in an employee's actual training. Because the parties focus primarily on the Board's violation of the cost limitation of AS 23.30.041(1), and because this violation is clear, we do not address whether subsection (k) was violated in this case. .In light of our decision, we need not address FHPF's argument that the Board failed to select reemployment benefits consistent with AS 23.30.-041 (i).

10348605

Pauline DOUGLAS, Appellant, v. STATE OF ALASKA, DEPARTMENT OF REVENUE, Appellee

Douglas v. State, Department of Revenue

1994-08-05

No. S-5360

113

117

880 P.2d 113

880

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:36:47.580427+00:00

CAP

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

Pauline DOUGLAS, Appellant, v. STATE OF ALASKA, DEPARTMENT OF REVENUE, Appellee.

Pauline DOUGLAS, Appellant, v. STATE OF ALASKA, DEPARTMENT OF REVENUE, Appellee. No. S-5360. Supreme Court of Alaska. Aug. 5, 1994. Rehearing Denied Sept. 9, 1994. James A. Gasper and Mark P. Melchert, Jermain, Dunnagan & Owens, P.C., Anchorage, for appellant. Linda L. Kesterson, Asst. Atty. Gen., Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before MOORE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ., and BRYNER, Justice, Pro Tern. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

2160

13229

OPINION MOORE, Chief Justice. At issue in this appeal is whether, pursuant to a Department of Revenue (DOR) regulation adopting Alaska Civil Rule 90.3 as DOR's child support guidelines, DOR may assess a $50 monthly child support obligation against an incarcerated parent who has no assets and earns less than $50 per month. The superior court ruled that Pauline Douglas should be assessed ongoing child support of $50 per month while she is incarcerated, and that Douglas owes an accrued debt of $600 for public assistance paid to support her minor children during the year preceding the initiation of this' action. We affirm. I. The facts of this ease are not in dispute. For all times relevant to this appeal, Douglas has been incarcerated in California for a crime unrelated to the nonpayment of child support. Douglas' seven children are living with Douglas' sister, who receives public assistance in the form of Aid to Families with Dependent Children (AFDC) for the care of one or more of the children. In July 1991 the Department of Revenue's Child Support Enforcement Division (CSED) informed Douglas of its informal conference decision (1) to impose on her a monthly child support obligation of $50, and (2) to assess her $600 for the twelve month period, August 1990 through July 1991, for public assistance paid to support Douglas' children. CSED arrived at the $50 monthly support figure under its interpretation of Rule 90.3, which DOR has adopted as its child support guidelines. 15 Alaska Administrative Code (AAC) 125.010 (1994). Douglas appealed CSED's decision to DOR. For the purposes of the appeal, DOR accepted Douglas' assertion that she had no assets and an income of less than $50 per month. DOR granted CSED's motion for summary adjudication of the case. The superior court affirmed. Douglas appeals to this court. II. The issues in this appeal present questions of law which do not require agency expertise. Therefore, we will apply the substitution of judgment standard of review. Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903-04 (Alaska 1987). A. Douglas is subject to the minimum support obligation under Civil Rule 90.2. It is well established in this state that parents have a duty to support their children, even in the absence of a court order to do so. Matthews v. Matthews, 739 P.2d 1298, 1299 (Alaska 1987); AS 25.20.030. Accordingly, even while she is incarcerated, Douglas has a common law and statutory duty to support her children regardless of whether a court order exists. As we stated in Matthews, "[a] parent's duty of support encompasses a duty to reimburse other persons who provide the support the parent owes." 739 P.2d at 1299. A claim for reimbursement thus "belongs to whomever supported the children, and is simply an action on a debt." Id. Alaska Statute 25.27.120 codifies Douglas' liability to the state for public assistance provided for her minor children. That statute provides in part: Obligor liable for public assistance furnished obligee, (a) An obligor is liable to the state in the amount of assistance granted under [the Aid to Families with Dependent Children Act] 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 may not exceed the amount of support provided for in the support order. AS 25.27.120(a). Pursuant to her duty to support her children, Douglas is an "obligor" parent. AS 25.27.900(6) ("obligor" means a person owing a duty of child support). Moreover, as no support order existed at the time CSED initiated the proceedings in this case, Douglas' liability to the state was for the entire amount of public assistance paid on her children's behalf. To facilitate the process of pursuing the state's right of reimbursement, DOR has adopted Civil Rule 90.3 as its child support guidelines. 15 AAC 125.010. Pursuant to Rule 90.3(c)(1)(B), CSED determined that Douglas owes the minimum monthly child support obligation of $50, regardless of her incarceration and lack of income. Rule 90.-3(e)(1)(B) provides that "a parent who would be required to pay child support . must be ordered to pay a minimum child support amount of no less than $50.00 per month." The Commentary to Rule 90.3 adds: "Even if the obligor has an income of less than the poverty level, or no income at all, a minimum support of $50.00 per month applies. This $50.00 minimum support applies for all children, not to each child separately." Civil Rule 90.3 cmt. VI.C. Douglas argues that Rule 90.3 should not be applied in her situation. Douglas' claim is essentially that Rule 90.3 does not apply outside of the divorce context or other situations in which parents have "voluntarily" separated from their children. She contends that, by the rule's own terms, it does not pertain to situations in which parents are "involuntarily" separated from their children, such as in cases of incarceration. Douglas also argues that application of Rule 90.3 in her case would not serve the rule's primary purpose of meeting the needs of children. We find these arguments unpersuasive, and we conclude that Rule 90.3 was properly applied to Douglas' circumstances. The crucial fact overlooked by Douglas' argument is that DOR adopted Rule 90.3 to apply to situations in which it seeks reimbursement from parents who owe a duty of child support. The present case is such a situation. Thus, the question is not whether Rule 90.3 independently applies to Douglas' circumstances, but whether it may be applied in the context of a DOR child support adjudication. There is no dispute that DOR had the authority to adopt the rule as its support guidelines. Douglas conceded this point at oral argument. DOR adopted Rule 90.3 to further its specific purposes, and the rule therefore may be applied to all cases under its jurisdiction involving child support. As a result, the rule was properly applied in this case. Explicit in Rule 90.3 is language indicating that, with very limited exceptions, every noncustodial obligor parent is subject to a minimum support obligation of $50 per month. Civil Rule 90.3(c)(1). The rule expressly states that a parent's indigence does not excuse this minimum obligation. Id.; see also Civil Rule 90.3 cmt. VI.C. This language derives from the policy decision that all parents should be held accountable for at least a minimal contribution to their children's care. Cf. State, Child Support Enforcement Div. v. Gammons, 774 P.2d 181, 184 (Alaska 1989) ("[T]he fundamental public policy of this state is that parents should bear the primary and continuing obligation to support their children."). Douglas nonetheless argues that her incarceration should constitute an exception to Rule 90.3 because, unlike most other indigent parents, she has no real capability of obtaining employment to pay her support obligation while she is in prison. Moreover, because Douglas is incarcerated in California, she does not receive a permanent fund dividend from which she could pay child support. Nor is she personally eligible for any public assistance payments at the present time from which she could satisfy her support obligation. Douglas therefore urges us to interpret Rule 90.3 in a manner consistent with the outcome in Clemans v. Collins, 679 P.2d 1041 (Alaska 1984). In Clemans, this court stated that a " 'parent is not liable for [support] payments while incarcerated unless it is affirmatively shown that- he or she has income or assets, to make such payments.' " Id. at 1041-42 (citation'omitted). We reject this argument as contrary to the express language and purpose of Civil Rule 90.3, which superseded Clemans as of August 1, 1987. Thus, the relevant question is not whether Douglas has prospective sources of income from which to pay support, but whether there is any basis in Rule 90.3 for treating indigent incarcerated parents differently from other indigent parents who are also subject to the rule. We conclude that there is not. Accordingly, both Rule 90.3 and its minimum monthly support provision were properly applied to establish Douglas' child support obligation. We recognize that Douglas' incarceration may limit her present ability to meet her ongoing support obligation. However, we see no basis in Rule 90.3 for concluding that her incarceration should, excuse that obligation, just as it will not excuse any other debt Douglas owes.' Rather, as is true for any other indigent parent who owes a duty of child support, the debt will continue to accrue. As a practical matter, the state's ability to collect on that debt may be impaired at the present time. However, this fact does not justify excusing the basic obligation, which Douglas may be able to satisfy upon her release from prison and reentry into the work force, or upon any improvement in her financial circumstances. See Ohler v. Ohler, 220 Neb. 272, 369 N.W.2d 615, 618 (1985) ("There is no reason those who have had to step in and assume the applicant's [child support] obligation should not be reimbursed by the applicant should his future position enable him to do so."). Moreover, despite Douglas' arguments, we note that Douglas substantially benefits from the application of Rule 90.3 to her circumstances. As discussed above, Douglas' liability to the state was for the full amount of public assistance paid to support her minor children. AS 25.27.120. As a result of DOR's adoption of Rule 90.3 and the court's entry of a support order fixing Douglas' obligation at $50 per month, Douglas' liability to the state is drastically reduced. Pursuant to AS 25.27.120, the court's ordered support constitutes a ceiling on Douglas' liability, and DOR cannot pursue her for any more than the ordered amount. For the foregoing reasons, we conclude that Civil Rule 90.3 was properly applied to assess Douglas' ongoing child support obligation, which will continue to accrue regardless of Douglas' incarceration and presumed lack of financial resources. B. DOR did not deny Douglas procedural due process. Douglas claims that DOR violated her due process rights when it assessed the $50 monthly support obligation' against her without holding an evidentiary hearing so that she could establish her inability to pay. To support this claim, Douglas again relies on Clemans, 679 P.2d 1041. As noted previously, Clemans was superseded by Rule 90.3 and its mandatory minimum support provision. Since we affirm DOR's conclusion that the minimum support obligation will exist regardless of Douglas' present inability to pay, there were no factual issues to resolve in an evidentiary hearing. DOR assumed Douglas had no assets and income less than $50 per month, and it addressed purely legal issues in assessing Douglas' child support obligation. Accordingly, there was no error in refusing Douglas an evidentiary hearing. See Smith v. State, Dep't of Revenue, 790 P.2d 1352, 1353 (Alaska 1990) (there is no right to an evidentiary hearing in the absence of a factual dispute). III. DOR's adoption of Civil Rule 90.3 to govern its child support actions was permissible. The rule specifies a mandatory minimum $50 per month obligation regardless of the obli-gor's financial circumstances, and it applies to Douglas like any other obligor parent. Further, there were no factual issues to resolve in an evidentiary hearing. Therefore, DOR did not violate Douglas' due process rights by failing to hold a hearing. AFFIRMED. . The administrative support order underlying this case addresses support for only one child. However, it appears from the record that Douglas' sister has received public assistance for all seven of Douglas' children. This fact does not affect the legal issues before this court, since the minimum support provision of Rule 90.3 applies for all children of a non-custodial parent, not to each child separately. See Civil Rule 90.3 cmt. VI.C. . The Commentary to Rule 90.3 has not been adopted or approved by this court. See Civil Rule 90.3 cmt. I.A. However, it may provide useful evidence of the purposes and considerations underlying the provisions of the rule. . Moreover, the Commentary to Rule 90.3 clarifies that the rule "applies to all proceedings involving child support." Civil Rule 90.3 cmt. I.C. The present action is a "proceeding involving child support," which brings it under the purview of the rule. See Hertz v. Hertz, 847 P.2d 71, 72 (Alaska), cert. denied, -U.S. -, 113 S.Ct. 2453, 124 L.Ed.2d 669 (1993) (minimum support provision of Civil Rule 90.3 applied to incarcerated parent); Cox v. Cox, 776 P.2d 1045, 1047 (Alaska 1989) (Rule 90.3 was designed to apply to all awards of child support).

10386252

ALASKA PULP CORPORATION, Appellant, v. UNITED PAPERWORKERS INTERNATIONAL UNION; United Paperworkers International Union, Silver Bay Local 962; Leo Gernandt; and Alaska Workers' Compensation Board, Appellees

Alaska Pulp Corp. v. United Paperworkers International Union

1990-05-11

No. S-3007

1008

1013

791 P.2d 1008

791

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:36:10.625449+00:00

CAP

Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

ALASKA PULP CORPORATION, Appellant, v. UNITED PAPERWORKERS INTERNATIONAL UNION; United Paperworkers International Union, Silver Bay Local 962; Leo Gernandt; and Alaska Workers’ Compensation Board, Appellees.

ALASKA PULP CORPORATION, Appellant, v. UNITED PAPERWORKERS INTERNATIONAL UNION; United Paperworkers International Union, Silver Bay Local 962; Leo Gernandt; and Alaska Workers’ Compensation Board, Appellees. No. S-3007. Supreme Court of Alaska. May 11, 1990. T.G. Batchelor, Batchelor, Murphy & Brinkman, Juneau, for appellant. Bradley D. Owens, Jermain, Dunnagañ & Owens, Anchorage, for appellees. Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

3120

19466

OPINION MATTHEWS, Chief Justice. Leo Gernandt suffered a heart attack while participating in a labor union demonstration. In this workers' compensation appeal, the question is whether he was acting as an employee of the union at the time. I. FACTUAL AND PROCEDURAL BACKGROUND Mr. Gernandt was employed by Alaska Pulp Corporation (APC) in 1967. His work involved operating machinery at APC's pulp mill in Sitka. In 1984, he sustained a back injury while working at the mill. For this injury, Mr. Gernandt received temporary total disability benefits as provided for by the Alaska Workers' Compensation Act (the Act). While receiving workers' compensation benefits, Mr. Gernandt continued to be an active member of the United Paperworkers International Union, Local 962 (Local 962). Local 962 is organized under a charter from United Paperworkers International Union (International). During July 1986, while Local 962 was on strike, Mr. Ger-nandt and other Local 962 members held a demonstration on APC's premises. During the demonstration, the president of Local 962 sustained a broken leg when he was hit by a pickup truck driven by a non-union employee who was attempting to leave APC's premises. Shortly after a commotion created by this incident, Mr. Gernandt had a heart attack. In November 1986, Mr. Gernandt filed an Application for Adjustment of Claim seeking permanent total disability compensation. The claim was based only on his back injury. APC answered, denying Mr. Ger-nandt's claim and obtained joinder of the Unions. APC claimed that Mr. Gernandt's heart attack was a subsequent intervening injury which occurred while employed with the Unions, thus making the Unions responsible for workers' compensation benefits under the last injurious exposure rule. The Board rejected APC's argument and dismissed all claims against the Unions. It found that Mr. Gernandt participated in the demonstration without compensation and, therefore, there existed no employee-employer relationship between Mr. Gernandt and the Unions. The superior court affirmed, and APC appeals to this court. II. DISCUSSION The Act extends coverage to "employee[s]." AS 23.30.010. It defines an employee as a person employed by an employer, and an employer, in part, as "a person employing one or more persons in connection with a business or industry." In interpreting these provisions, we have recognized that "before an employee-employer relationship exists under the Act, an express or implied contract of employment must exist." Childs v. Kalgin Island Lodge, 779 P.2d 310, 313 (Alaska 1989) (citing Whitney-Fidalgo Seafoods, Inc. v. Beukers, 554 P.2d 250, 252 (Alaska 1976)). In Childs, we further explained that formation of such a contract generally requires mutual assent and consideration. Id. at 313-314. APC does not suggest that an express contract for hire existed between Mr. Gernandt and either of the Unions. Instead, its position seems to be that Mr. Gernandt's participation in the union demonstration, and the availability of strike benefits to union members, gave rise to an implied contract of employment. The Board found no such contract, stating: [Mr. Gernandt] was not on either union's payroll, he was not a union officer or official_ [APC] argues that [Mr. Ger-nandt's] $55 per week strike benefit was, in fact, wages paid for work performed as a picket. We do not agree. The strike benefit was available to all striking union members who remained in good standing. It was not paid in proportion to the amount of time spent on the picket line, but was a flat weekly benefit paid by [International] out of a fund created for that purpose. (Emphasis added) Unless these factual findings are erroneous, the Board correctly found that Mr. Gernandt "was not under a contract of employment, either express or implied." If Mr. Gernandt had a right to a fixed strike benefit regardless of whether he picketed, his picketing was not bargained for or remunerated and thus not supported by consideration. The voluntary nature of such activity would also fall short of the requirement that the parties to an implied contract of employment manifest agreement to a binding obligation. See Childs, 779 P.2d at 314 ("An implied employment contract is formed by a relation resulting from 'the manifestation of consent by one party to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.' ") (citations omitted); see also Fox v. Mayfield, 43 Ohio App.3d 12, 538 N.E.2d 1077, 1079-80 (1988) (holding that a union member who received strike benefits was not an employee of the union while picketing because the benefits were fixed, having no relationship to hours served, and thus were not wages paid by the union). APC argues that strike benefits were paid for participation in the demonstration, contending that "it was expected and required that [Mr. Gernandt] pull picket duty or return strike benefits." The Board's contrary findings of fact will withstand this claim of error if supported by substantial evidence. See Bailey v. Litwin Corp., 713 P.2d 249, 252 (Alaska 1986). Thus, these findings must be upheld if supported by "such relevant evidence as a reasonable mind might accept as adequate to support such a conclusion." Black v. Universal Services, Inc., 627 P.2d 1073, 1075 (Alaska 1981) (quoting Miller v. ITT Arctic Servs., 577 P.2d 1044, 1049 (Alaska 1978)). The Board's finding that picketing was not a condition to receipt of strike benefits was supported by adequate evidence. Wayne Glenn, president of International, testified by affidavit that "Mr. Gernandt's later strike relief payments were in no way related to whether or not he attended [the union demonstration], Mr. Gernandt would have received the same benefit even if he had not attended_" Jesse Jones, president of Local 962, testified by affidavit that Mr. Gernandt "has not received any wages from the Local Union. He has not been required to picket or carry out any duties for the Local Union." During his deposition, David Hiebert, another officer of Local 962 was asked, "Was there any requirement that anyone from the Union attend [the demonstration]?" He re sponded, "Absolutely not." Such evidence provides reasonable support for the Board's finding that picketing was not a condition to receipt of strike benefits. Other depositions indicate that a practice developed among a majority of Local 962 members whereby those who did not pull picket duty assigned their strike checks to those who did. From this practice, APC argues that we should infer a requirement that members picket or return strike benefits. We decline to do so. These depositions also indicate that the practice of assigning checks to those who picketed was not mandatory. Thus, the inference that APC would have us draw is not a strong one. Even if considered a reasonable inference, the record lends it no more support than the opposite conclusion reached by the Board. Under such circumstances, we will defer to the Board's findings of fact, rather than reweigh the evidence or choose between competing reasonable inferences. See Bailey, 713 P.2d at 252. APC also contends that the presumption of compensability of AS 23.30.120(1) "creates the presumption that Gernandt was an 'employee' for the purposes of the Act," and that the Board's failure to address this presumption was an independent error requiring reversal. We disagree. Under AS 23.30.120(1), a workers' compensation claim is presumed to come within the provisions of the Act, absent substantial evidence to the contrary. We have recognized the propriety of applying this presumption and the last injurious exposure rule against a subsequent employer in a dispute between successive employers. See Veco, Inc. v. Wolfer, 693 P.2d 865, 868 (Alaska 1985); Providence Washington Ins. Co. v. Bonner, 680 P.2d 96, 100 (Alaska 1984) (Rabinowitz, J., concurring). However, these cases involved application of the presumption to the question of the relatedness of, or the causal connection between, the worker's injury and work done for the subsequent employer. See Veco, 693 P.2d at 870-72; Bonner, 680 P.2d at 98-99. We have not considered application of the presumption where the subsequent party contests the existence of an employee-employer relationship. We hold that the presumption of AS 23.30.-120(1) does not apply to inter-employer disputes on the question of whether an employment relationship existed between the worker and the subsequent party. The purpose served by judicial extension of the presumption of AS 23.30.120(1) to inter-employer disputes is only minimally furthered when the issue is whether there existed an employment contract between the subsequent party and the worker. We have reasoned that application of the presumption to inter-employer disputes simplifies workers' compensation proceedings, thus reducing the "hazards" such disputes pose for the injured workers. See Veco, 693 P.2d at 868 (citing Bonner, 680 P.2d at 100). As indicated, these cases involved disputes over the relatedness of, or causal connection between, the injury and work done for the subsequent employer. Such disputes can raise complex factual issues, and thus pose risks of delay in recovery for the injured worker. However, whether there existed an employment contract between the worker and the subsequent employer is a much more straight-forward question, generally not requiring technical evidence. Thus, the need for simplification and avoidance of delay is of much less concern when successive employers contest the latter issue. Moreover, we do not think that the pro-worker presumption of AS 23.30.120(1) was intended to facilitate proof of an employee status contrary to that asserted by the worker. An important purpose underlying the contract of employment requirement is to avoid "thrustfing] upon a worker an employee status to which he has never consented . [since doing so] might well deprive him of valuable rights...." 1C A. Larson, The Law of Workmen's Compen sation § 47.10 at 287-289 (1986). In a dispute between purported employers, a presumption that the subsequent party was indeed the worker's employer contravenes this purpose. Such use of the presumption risks thrusting upon a worker an employee status to which he never consented, and could deprive him of valuable rights. For example, once deemed to have had an employment relationship, any common law rights the worker may have had against the subsequent party are terminated. We do not believe that the presumption of AS 23.30.120(1) was intended to adversely affect workers' rights in this manner. Finally, APC argues that the Board erred by not applying the "relative nature of the work" test to determine Mr. Ger-nandt's employee status. We adopted this test to distinguish between employees and independent contractors for the purpose of determining whether an individual is an "employee," and thus eligible for workers' compensation benefits, under the Act. Kroll v. Reeser, 655 P.2d 753, 755 (Alaska 1982). However, both relationships presuppose a contractual undertaking. Therefore, in the absence of a contract for hire, the Board was not required to make this distinction. AFFIRMED. . Where appropriate, Local 962 and International will be referred to collectively as the "Unions." . The last injurious exposure rule applies when work for successive employers combines to produce an employee's disability. The rule imposes full liability on the most recent employer. See, 4 A. Larson, The Law of Workmen's Compensation § 95.20 (1986). . The Board also decided that even if the demonstration was employment activity, it was nevertheless excluded from coverage under the part-time help exclusion of AS 23.30.230. We need not decide whether the Board's ruling on this ground was correct, since its decision can be affirmed on the ground that there existed no employee-employer relationship. We reject APC's contention that the lack of employee status was not an alternative ground for the Board's ruling and thus cannot serve as a basis for affirmance. "An appellee may seek to defend a judgment on any basis established by the record, whether or not it was relied on by the trial court or even raised before the trial court." Demoski v. New, 737 P.2d 780, 786 (Alaska 1987) (citation omitted). .AS 23.30.265 provides in part: (12) "employee" means an employee employed by an employer as defined in (13) of this section; (13) "employer" means the state or its political subdivision or a person employing one or more persons in connection with a business or industry coming within the scope of this chapter and carried on in this state[.] . There was no live testimony before the Board. . To establish work relatedness of the disability to employment is often a complex question requiring presentation of scientific evidence. Thornton v. Alaska Workmen's Compensation Board, 411 P.2d 209, 210 (Alaska 1966). Thornton did not involve prior and subsequent employers. . Under AS 23.30.055, recovery under the Act "is exclusive and in the place of all other liability of the employer_" Thus, a worker who recovers under the Act against one deemed to be his employer cannot also recover common law damages against this same person.

10409707

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

Covington v. State

1985-07-26

No. A-203

436

442

703 P.2d 436

703

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T19:38:10.444640+00:00

CAP

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

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

Charles COVINGTON, Appellant, v. STATE of Alaska, Appellee. No. A-203. Court of Appeals of Alaska. July 26, 1985. Larry Cohn and Carl Forsberg, Birch, Horton, Bittner, Pestinger & Anderson, Anchorage, for appellant. John A. Scukanec, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

3179

19334

OPINION SINGLETON, Judge. Charles Covington was convicted of two counts of lewd and lascivious acts towards a child, former AS 11.15.134, and four counts of sexual assault in the first degree, former AS 11.41.410(a)(4)(B). He received a composite sentence of forty years with ten years suspended. Covington appeals, challenging his conviction and sentence. We reverse Covington's conviction and remand for a new trial. FACTS Covington's victim was his natural daughter, D.C.O. She testified at trial that Covington began sexually abusing her when she was nine or ten years old. D.C.O. was eighteen years old at the time of trial. D.C.O. testified that Covington slept with her, touched her breasts, and penetrated her vagina with his finger. After D.C.O.'s mother's death in November 1977 when D.C.O. was thirteen years old, Covington told her that she reminded him of her mother and had D.C.O. sleep with him in his bed. Shortly before D.C.O.'s sixteenth birthday, Covington began having sexual intercourse with her. D.C.O. testified that she had sexual intercourse with Covington "practically every night," until she moved out in March 1983. Covington allegedly told her that he did not want her to "grow up naive like [her] mother." C.C., D.C.O.'s brother, the thirteen-year-old son of the defendant, also corroborated D.C.O., testifying that on Mother's Day 1982 he saw an empty condom package on the night table next to the bed in which Covington and D.C.O. were sleeping but that he could not see if they had clothes on, nor could he remember if the door of the bedroom had been shut. He also testified that throughout 1982 his father and sister were sleeping in the same bed. Covington testified in his own defense. He conceded that he had slept in the same bed with D.C.O. from August or September 1979 until D.C.O. moved out in March 1983, but contended that he had never fondled or penetrated her with his fingers or penis. He stated that the bedroom door was always open and that D.C.O. had slept with him at her own request and not because of anything he said or did. He also denied the truth of earlier out-of-court tape recorded statements in which he admitted having had sexual intercourse with D.C.O. after her sixteenth birthday. Covington's testimony also suggested that D.C.O. was motivated to lie in order to obtain custody of her younger sister and prevent Covington from moving out of state with her. I. Covington challenges the indictment and the trial court's refusal to grant him a bill of particulars. The indictment charged Covington as follows: Count I charged lewd or lascivious acts occurring "from on or about the month" of July 1978 through December 4, 1978, "at or near Fairbanks." Count II charged lewd or lascivious acts "from on or about" January 1, 1979, through December 4, 1979, "at or near Fairbanks." Count III charged sexual penetration "on or about" October 1, 1981, through December 4, 1981, "at or near Fairbanks." Count IV charged sexual penetration "on or about" January 1, 1982, through October 1, 1982, "at or near Fairbanks." Count V charged sexual penetration "on or about" October 2, 1982, through November 1, 1982, "at or near Fairbanks." Count VI charged sexual penetration "on or about" November 2, 1982, through December 4, 1982, "at or near Fairbanks." Covington argues that the trial court abused its discretion in denying his pretrial motion for a bill of particulars or, in the alternative, his motion to dismiss the indictment. He contends that the indictment violated due process because it was not sufficiently specific to inform him of the nature and cause of the accusation. Ak. Const, art. 1, § 11; U.S. Const, amend. VI; see also AS 12.40.100; Alaska R.Crim.P. 7(c). Covington argues that the indictments must be sufficiently clear to avoid surprise as to the specific acts and specific dates upon which those acts occurred. He argues that he was prejudiced because D.C.O. testified for the first time at trial that sexual intercourse had begun in October 1980, a year earlier than alleged before the grand jury or in the indictment. He points out that D.C.O. testified before the grand jury that sexual intercourse began in 1981. The state argues that no bill of particulars was necessary and the indictment was sufficient in this case. It relies on authorities which hold that leeway is necessary in charging sexual abuse and sexual intercourse with minors because children who are the victims of abuse may find it difficult to recall precisely the dates of offenses against them months or even years after the offense has occurred. See People v. Fritts, 72 Cal.App.3d 319, 140 Cal.Rptr. 94 (1977); State v. Roberts, 101 Idaho 199, 610 P.2d 558, 559 (1980); State v. Wonser, 217 Kan. 406, 537 P.2d 197 (1975); Commonwealth v. Lamory, 14 Mass.App. 925, 436 N.E.2d 992 (1982); Commonwealth v. Vernazzarro, 10 Mass. App. 897, 409 N.E.2d 1326 (1980); State v. Healey, 562 S.W.2d 118, 129-30 (Mo.App. 1978); State v. Davis, 6 N.J.Super. 162, 70 A.2d 761 (1950). The state quotes State v. Roberts, 101 Idaho 199, 610 P.2d 558 (1980), for the proposition that allegations of lewd and lascivious conduct with a minor "on or about the months between June and September 1976," and "on or about the months of May, 1976 [and] June, 1976" were: set forth with sufficient specificity to allow [the defendant] to prepare his defense and to protect him from double jeopardy. 610 P.2d at 559. The state reasons that this is particularly true where the defense is a "blanket denial" of sexual activity with the victim as opposed to an alibi defense as to specific dates. State v. Roberts, 610 P.2d at 559; People v. Fritts, 140 Cal.Rptr. at 97. See also People v. Long, 55 Ill. App.3d 764, 13 Ill.Dec. 288, 370 N.E.2d 1315 (1977). A review of the transcript bears out the state's contention that no unfairness occurred here. In the instant case, D.C.O. testified at trial that her father began having sexual intercourse with her shortly before her sixteenth birthday. She became confused about whether it was 1980 or 1981 but remembered that it had started in October because her father later celebrated the occasion as their "anniversary." D.C.O. told the grand jury that the defendant began having sexual intercourse with her in October 1981. Covington testified that he had never had sexual intercourse or sexual contact with his daughter at any time. He admitted, however, that he had been sleeping with her on an almost nightly basis since 1979. Thus Covington's denial, in the state's view, was just as effective as it would have been if the indictment had been more specific. State v. Roberts, 610 P.2d at 559; People v. Long, 13 Ill.Dec. at 295, 370 N.E.2d at 1322. We generally agree with the state, and the authorities cited by the state, that the indictment was sufficient to alert Covington to the elements of the offenses he allegedly committed and sufficiently informed him so that he could defend himself and protect himself against further prosecutions for the same offense. See, e.g., Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1046-47, 8 L.Ed.2d 240, 250-51 (1962); Price v. State, 437 P.2d 330, 331 (Alaska 1968); Adkins v. State, 389 P.2d 915, 916 (Alaska 1964). We also agree with the state that the broad rights to discovery granted a criminal defendant under the Alaska Rules will render a bill of particulars unnecessary in most cases. See Alaska R.Crim.P. 16; Lupro v. State, 603 P.2d 468, 472 (Alaska 1979). The facts of this case, however, raise a more significant issue — that of Cov-ington's right to a unanimous verdict. In considering this issue, we start with the premise that the accused has a right to a unanimous verdict: a conviction may properly be entered only if the jury unanimously finds that all essential elements of the offense charged were proved beyond a reasonable doubt. Thus all jurors must agree that the defendant committed a single offense. State v. James, 698 P.2d 1161 (Alaska 1985). Where one jury instruction may encompass two separate incidents, the trial judge must instruct the jury that if a guilty verdict is returned, the jurors must be unanimous as to the incident or incidents of which they find the defendant guilty. James, 698 P.2d at 1166, citing Burrell v. United States, 455 A.2d 1373, 1379 (D.C.App.1983). See also Johnson v. Louisiana, 406 U.S. 356, 362, 92 S.Ct. 1620, 1624, 32 L.Ed.2d 152, 159 (1972). In James, the supreme court was concerned with the application of this rule to a charge of a single offense where the state introduced evidence indicating different means of committing the same offense. The court held that the jury need not be unanimous regarding the means used to commit a single offense, reversing James v. State, 671 P.2d 885 (Alaska App.1983). The situation is substantially different here. The state charged Covington with separate counts of lewd and lascivious acts and sexual assault but proceeded at trial to present evidence of numerous separate criminal acts. D.C.O. was unable to recall any specific events or dates which would distinguish the circumstances of one assault from another. C.C. did corroborate, in part, a separate incident on Mother's Day of 1982 when he observed the empty condom package. Under these circumstances, there is substantial doubt that the jury convicting Covington of each count had a specific incident in mind. While we agree with the state's authorities that an indictment is sufficient which charges a specific incident, the precise date of which the witness is uncertain, the witness must nevertheless have a specific incident in mind. Sexual abuse of a minor is not a "continuing offense." See State v. Petrich, 101 Wash.2d 566, 683 P.2d 173, 176-77 (1984) (where a number of sexual incidents occur at separate times and places, and the only connection between incidents is identity of the victim, a continuing offense has not been proved). In Petrich, the court reached the following conclusions regarding protection of the defendant's right to unanimous verdict: When the evidence indicates that several distinct criminal acts have been committed, but defendant is charged with only one count of criminal conduct, jury unanimity must be protected. We therefore adhere to the Workman rule, [State v. Workman, 66 Wash. 292, 119 P. 751 (1911) (where the evidence tends to show two separate commissions of the crime, prosecutor must elect between them)] with the following modification. The State may, in its discretion, elect the act upon which it will rely for conviction. Alternatively, if the jury is instructed that all 12 jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt, a unanimous verdict on one criminal act will be assured. When the state chooses not to elect, this jury instruction must be given to ensure the jury's understanding of the unanimity requirement. 683 P.2d at 178. We also agree with the Washington court's reasons for adopting this rule: These options are allowed because, in the majority of cases in which this issue will arise, the charge will involve crimes against children. Multiple instances of criminal conduct with the same child victim is a frequent, if not the usual, pattern. Note, The Crime of Incest Against the Minor Child and the States' Statutory Response, 17 J.Fam.Law 93, 99 (1978-79). Whether the incidents are to be charged separately or brought as one charge is a decision within prosecutorial discretion. Many factors are weighed in making that decision, including the victim's ability to testify to specific times and places. Our decision in this case is not intended to hamper that discretion or encourage the bringing of multiple charges when, in the prosecutor's judgment, they are not warranted. The criteria used to determine that only a single charge should be brought, may indicate that the election of one particular act for conviction is impractical. In such circumstances, defendant's right to a unanimous verdict will be protected' with proper jury instructions. Id. In the instant case, the state did not elect' specific incidents, nor was a clarifying instruction given. Under these circumstances, we find reversible error and remand for new trial. II. Covington filed a motion for a protective order prohibiting the state from introducing evidence of alleged sexual relations between Covington and D.C.O., occurring prior to July 1978 and after December 1982. The trial court denied Covington's motion in reliance on Burke v. State, 624 P.2d 1240 (Alaska 1980). In Burke, the supreme court considered this issue in the context of Evidence Rule 404(b) and Evidence Rule 403. The court noted that where the specific crime charged was sexual abuse of a minor, the common law position supported by an overwhelming majority of states is that evidence of prior similar conduct with the same victim is admissible. 624 P.2d at 1247. The court affirmed admissibility of the evidence stressing that all of the acts involved the same victim. The court accepted two closely related rationales: first, the evidence tended to establish the ongoing relationship between the accused and the victim and explained, in part, the victim's inability to specifically describe separate incidents; and, secondly, it served to explain the victim's testimony in its context, particularly indicating why she might acquiesce in the defendant's demands. 624 P.2d at 1249-50. We believe both of those rationales are applicable here and justify the admission of the evidence. Given our holding today that the prosecution must either elect to prove a particular incident or that the jury must be instructed that it must unanimously agree on a particular incident, we believe the evidence is highly material to explain the witness' difficulties in specifying incidents so that her testimony may be considered in the context in which it arose. We find no error. III. Covington argues that the trial court erred in refusing to permit extrinsic evidence that D.C.O. had made false charges of sexual assault. During voir dire, D.C.O. admitted that she had made accusations against her grandfather and a man by the name of J.D. The trial court precluded the defense from calling the grandfather to deny the accuracy of the charges. Coving-ton contends that the evidence was admissi ble to challenge D.C.O.'s credibility and its exclusion violated his sixth amendment right to confront the witnesses against him. See, e.g., Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347, 353-54 (1974). The state argues that the evidence was irrelevant since past incidents had nothing to do with whether the victim had been sexually assaulted by Covington. Further, the state argues that a swearing contest between the victim and her grandfather would not have assisted the jury in evaluating her credibility. See, e.g., A.R.E. 403; Dyer v. State, 666 P.2d 438 (Alaska App.1983). This issue has received substantial attention in the reported eases. See, e.g., 3A Wigmore on Evidence § 963 (Chadbourn rev. ed. 1970). The state does not contend, and the trial court did not hold, that the evidence of prior accusations by D.C.O. was precluded by Alaska's rape-shield statute. See, e.g., AS 12.45.045; A.R.E. 404(a)(2). See Commonwealth v. Bohannon, 376 Mass. 90, 378 N.E.2d 987 (1978). A majority of the courts which have considered the issue permit such evidence only if the defendant makes a showing out of the presence of the jury that the witness' prior allegations of sexual assault were false, as, for example, where the charges somehow had been disproved or where the witness had conceded their falsity. See, e.g., State v. Hutchinson, 141 Ariz. 583, 688 P.2d 209, 211-13 (App.1984); People v. Alexander, 116 Ill.App.3d 855, 72 Ill.Dec. 338, 452 N.E.2d 591 (1st Dist.1983); Commonwealth v. Bohannon, 378 N.E.2d at 991-92; State v. Anderson, 686 P.2d 193, 198-201 (Mont.1984); State v. Demos, 94 Wash.2d 733, 619 P.2d 968, 970 (1980). We find this approach appropriate and adopt this rule for Alaska. We hold that a defendant who wishes to use this kind of evidence at trial must obtain a preliminary ruling from the trial court that it is admissible. The matter should be brought up out of the jury's presence. In the instant case, defendant's offer of proof did not establish the falsity of the alleged prior complaints. We assume that on remand Covington will be given a reasonable opportunity to attempt to show the falsity of the prior accusations. The judgment of the superior court is REVERSED. This case is REMANDED for new trial. . Alaska Statute 12.40.100 states: Contents of Indictment, (a) The indictment shall be direct and certain as it regards (1) the party charged; (2) the crime charged; and (3)the particular circumstances of the crime charged when they are necessary to constitute a complete crime. (b) The statement of the facts constituting the offense shall be in ordinary and concise language, without repetition, and in a manner which will enable a person of common understanding to know what is intended. Alaska Rule of Criminal Procedure 7(c) states in pertinent part: The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.... . Covington was not convicted of any acts of sexual penetration of D.C.O. prior to October 1980. . A number of courts have reached similar results utilizing slightly different legal theories. See, e.g., People v. Creighton, 57 Cal.App.3d 314, 129 Cal.Rptr. 249 (1976); People v. Abdullah, 134 Cal.App. 155, 25 P.2d 40 (1933); State v. Pace, 187 Or. 498, 212 P.2d 755 (Or.1949). Cf. People v. Pries, 81 A.D.2d 1039, 440 N.Y.S.2d 116 (1981); People v. MacAfee, 76 A.D.2d 157, 431 N.Y.S.2d 149 (1980) (requiring specific acts and dates to be spelled out in the indictment). . Alaska Rule of Evidence 404(b) provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person or to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. .Alaska Rule of Evidence 403 provides: Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. . Covington raises three other issues which our disposition makes it unnecessary to reach. He contends that, first, the trial court abused its discretion in denying him the opportunity to depose witnesses prior to trial; second, the trial court abused its discretion in denying a new trial; and third, the trial court imposed an excessive sentence.

10419713

Mitchell E. ABOOD, Jr., Ramona L. Barnes, Robert H. Bettisworth, Charlie Bussell, John Cowdery, Milo Fritz, Walter R. Furnace, Joe L. Hayes, Vernon L. Hurlbert, John Lindauer, John J. Liska, Terry Martin, John Ringstad, Richard Shultz, Mae Tischer, and Jerry Ward, on behalf of the People of the State of Alaska, Appellants, v. Norman C. GORSUCH, et al., Appellees

Abood v. Gorsuch

1985-08-02

No. S-706

1158

1165

703 P.2d 1158

703

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:38:10.444640+00:00

CAP

Before BURKE, MATTHEWS, COMPTON and MOORE, JJ.

Mitchell E. ABOOD, Jr., Ramona L. Barnes, Robert H. Bettisworth, Charlie Bussell, John Cowdery, Milo Fritz, Walter R. Furnace, Joe L. Hayes, Vernon L. Hurlbert, John Lindauer, John J. Liska, Terry Martin, John Ringstad, Richard Shultz, Mae Tischer, and Jerry Ward, on behalf of the People of the State of Alaska, Appellants, v. Norman C. GORSUCH, et al., Appellees.

Mitchell E. ABOOD, Jr., Ramona L. Barnes, Robert H. Bettisworth, Charlie Bussell, John Cowdery, Milo Fritz, Walter R. Furnace, Joe L. Hayes, Vernon L. Hurlbert, John Lindauer, John J. Liska, Terry Martin, John Ringstad, Richard Shultz, Mae Tischer, and Jerry Ward, on behalf of the People of the State of Alaska, Appellants, v. Norman C. GORSUCH, et al., Appellees. No. S-706. Supreme Court of Alaska. Aug. 2, 1985. James T. Robinson and David A. Devine, Smith, Robinson & Gruening, Anchorage, for appellants. James L. Baldwin, Jonathan B. Rubini, Asst. Attys. Gen., Norman C. Gorsuch, Atty. Gen., Juneau, for appellees. Before BURKE, MATTHEWS, COMPTON and MOORE, JJ.

3929

23604

OPINION MATTHEWS, Justice. The Speaker of the House and twenty-two other members of the Alaska House of Representatives brought this action for declaratory relief against certain state officials who, it is claimed, were not properly confirmed by the Legislature. The superi- or court granted summary judgment for the officials. We affirm. I. The underlying facts are as follows. On May 24, 1983, the President of the Senate requested that the House attend a joint session on May 30 for the purpose of confirming officers who had been appointed by the Governor. In response, the Speaker of the House declined, but offered to meet for the same purpose on June 10. On May 30, the Senate President suggested a joint session no later than June 2. On May 31, the Speaker rejected this suggestion, noting that a number of confirmation hearings were scheduled in the House for the period between June 1 and June 4. On June 1, the House adjourned the regular session of the legislature until January 9, 1984, and on June 2 the Speaker sent a letter to the Governor and the Senate President asserting that all executive appointments were denied confirmation by operation of law. The Senate did not concur in the House adjournment. This meant that the House recess could not last more than three days. On June 3, 1983, the Governor issued a proclamation calling a joint session for 2:00 p.m. on Tuesday, June 7, 1983. The proclamation was immediately published and widely disseminated. On June 6, the House met and again adjourned. Again, the Senate did not concur in the adjournment. On June 7, the Senate President called a joint session to order pursuant to the Governor's proclamation. In attendance were thirty-seven legislators: all twenty members of the Senate and seventeen of the forty members of the House. The joint session adjourned until June 8 with the expectation that the attendance of at least some of the missing members of the House could by then be compelled. On the 8th, the Senate President again called the joint session to order. A call of the roll indicated that all Senators and twenty-one members of the House were present. At least two of the Representatives had been escorted from their offices in the state capítol to the session by state troopers acting pursuant to a request for assistance executed by the Senate President. A roll call vote was begun on the question of confirmation of the principal department heads. Just after the voting was commenced, a call of the House was made, and the session was placed at ease. At 2:14 p.m., the joint session was again called to order. A roll call vote was taken on the question of confirmation of the principal department heads. They were confirmed by thirty-eight affirmative votes. The Legislature next confirmed the Alcoholic Beverage Control Board by unanimous consent. A motion to confirm members of the State Board of Registration for Architects, Engineers and Land Surveyors followed. One Senator objected, observing that the joint session lacked a quorum from the members of the House. It was evident from the roll call vote taken on the confirmation of the principal department heads that there were then only twenty members of the House present. A debate followed concerning the quorum necessary for the joint session. Senators Josephson and Ray argued that after the Senate and House had been convened in joint session, the Legislature became a unicameral body in which the quorum is a majority of the members of both houses. The Senate President accepted this point of view and ruled that a quorum was present. This ruling was not appealed to the joint session and the Legislature continued to confirm the remaining appointees, except for three appointees to the Board of Fisheries. In this, the ensuing lawsuit, the plaintiffs contend that: (1) a quorum was not present at the joint session when the confirmation votes were taken; (2) the joint session was invalid because the Speaker of the House was not present; (3) the Governor's act of convening the joint session was an unconstitutional encroachment on the right of the House to investigate and hold hearings regarding the qualifications of appointees; and (4) the actions taken at the joint session were void for lack of notice required by the public meeting law. The trial court, in a written decision following cross-motions for summary judgment, concluded that none of these claims were justiciable. The court also made alternative rulings on the merits of each of the claims, except that concerning the presence of the Speaker. II. We turn first to the question of justicia-bility. There are certain questions involving coordinate branches of the government, sometimes unhelpfully called political questions, that the judiciary will decline to adjudicate. In Malone v. Meekins, 650 P.2d 351, 357 (Alaska 1982), we discussed the leading federal case on justiciability, Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), stating that the Supreme Court of the United States had identified, various elements, one or more of which is '[pjrominent on the surface of any case held to involve a political question.... ' These elements included: (1) a textually demonstrable commitment of the issue to a coordinate political department; (2) the impossibility of a court's undertaking an independent resolution of the case without expressing lack of respect due coordinate branches of government; and (3) the need for adherence to a political decision already made. Malone 650 P.2d at 357 (citations omitted). In Malone we held that the claim that a session of the House of Representatives had been convened in violation of a statute was nonjusticiable. The statute, AS 24.10.-020, related "solely to the internal organization of the legislature, a subject which has been committed by our constitution to each house." Id. at 356. We stated: For the courts to assume responsibility for overseeing the officer selection process of a legislative body would be highly intrusive and, in our opinion, inconsistent with the respect owed the legislature by the judiciary. Of significance too is the need to attribute finality to the action taken by the House. While the June 1981 reorganization did disrupt the legislative processes of the House for a few days, the important point is that the crisis passed, the House reorganized, and has since been engaged in legislative activity, all without judicial intervention. Intervention by a court at this point would be apt once again to disrupt the legislative processes of the House. Nor is it at all clear that judicial intervention during the reorganization would have shortened it or otherwise have been of benefit. Id. at 357. We also held nonjusticiable a question as to whether the rules of the Legislature had been violated, noting that "we can think of few actions which would be more intrusive into the legislative process than for a court to function as a sort of super parliamentarian to decide the varied and often obscure points of parliamentary law which may be raised in the course of a legislative day." Id. at 359. We explained that there could be exceptions to this "in extraordinary circumstances, as where the rights of persons who are not members of the legislature are involved-" Id. And we made it clear that the nonjusticiability doctrine would not apply to cases involving our "constitutionally mandated duty to ensure compliance with the provisions of the Alaska Constitution, including compliance by the legislature." Id. at 356. III. Article III, section 25 states that the head of each principal department of government shall be appointed by the Governor "subject to confirmation by a majority of the members of the legislature in joint session...." Section 26 provides for confirmation of members of boards and commissions in the same language as section 25. What quorum is necessary for confirmation votes is a question of Alaska constitutional law. It is therefore a question to which the nonjusticiability doctrine does not apply. Article II, section 12 of the Alaska Constitution states in part that "[a] majority of the membership of each house constitutes a quorum to do business.... " Article III, section 17 provides that: "[wjhenever the governor considers it in the public interest, he may convene the legislature, either house, or the two houses in joint session." The appellants argue that the quorum requirement of article II, section 12 applies to joint sessions. Consequently, no action could be taken at a joint session unless at least eleven senators and twenty-one representatives were present. The trial court stated, in its alternative holding on the merits of this point: I conclude that joint sessions of the legislature are intended to organize the legislature into a single house for authorized purposes. Confirmation sessions were made joint for the purpose of removing the check each house of the legislature has on the other. I conclude that the quorum for a joint session convened under article III, sections 25 and 26 of the Alaska Constitution is a majority of the members of the legislature, or 31 legislators from either house of the legislature. To conclude otherwise would frustrate the purpose of joint sessions. We agree with the trial court. The quorum requirement set forth in article II, section 12 can only reasonably be read as applying to the business of each house, not to the business of the Legislature in joint session. In joint session, the Legislature is a unicameral body. This conclusion is in accord with the prevailing concept of what a legislative joint session is, as reflected in decisions in other jurisdictions. In Anderson v. Krupsak, 40 N.Y.2d 397, 386 N.Y.S.2d 859, 353 N.E.2d 822 (1976), the question was whether a quorum was present for the election of Regents by a joint session of the Legislature of the State of New York. The New York Legislature consisted of a Senate having sixty members and an Assembly of 150 members. When the joint session acted, 148 assemblymen but only twenty-six senators were in attendance. The court held that a quorum of the joint session was a majority of all legislators, and thus that a quorum was present: Turning to the issue of whether there was a quorum present for the election of Regents, we reject the claim that in order for there to be a quorum of the joint session there must be present a majority of the total number of Senators and also a majority of the total number of Assemblymen. Once the joint session had been convened, the Senate and Assembly were no longer separate bodies of the Legislature, but were instead merged into a unicameral body, where a quorum was simply a majority of the total membership of the unicameral body, without regard to whether those members come from the Senate or the Assembly. 386 N.Y.S.2d at 864, 353 N.E.2d at 827. To the same effect is Richardson v. Young, 122 Tenn. 471, 125 S.W. 664, 680 (1910): These conventions [joint sessions] are deliberative bodies, and, their organization and proceedings not being regulated by any statute, it would seem, like all other such bodies, they would have the power to elect their own officers, and adopt their own rules and be governed by established parliamentary usages and laws, one of which is that a majority of the members constitute a quorum to do business . Joint conventions are not composed of the Senate and the House of Representatives, but of the members of the General Assembly, without regard to the house to which they were elected. The Senate, while acting as a separate body, although its members number only one-third of the House, has equal power with the latter, and can reject any measure passed or proposed by it. Thus each Senator exercises in all legislation the power of three Representatives; but this power is lost in a joint convention. There they meet the members of the House upon an equality, as members of the convention; all having the same authority and only one vote. In Young, the court also reviewed a decision of the United States Senate made at a time when United States senators were selected by state legislatures acting in joint session. The case, Call v. Davidson, arose from the State of Florida. Call received the votes of a majority of the members of the Legislature in joint session, but at the time of the vote a quorum of the Senate was absent. The Governor was of the opinion that the election was therefore invalid and appointed Davidson as Senator. The credentials of the two contestants were referred to a committee of the United States Senate which concluded that a quorum of the joint session of the Florida Legislature had been present even though a quorum of the state Senate was absent. Call was thus declared to be duly elected. 125 S.W. at 683. The unicameral nature of the Legislature when sitting in joint session is underscored by language in the 1976 amendment to article II, section 16, set forth su-pra at note 4. The subject of that article is a joint session to consider whether to override gubernatorial vetoes. The new language refers to such sessions as "the legislature sitting as one body." It is true, as the appellants have argued, that under the unicameral view of joint sessions, the thirty-one members of the Legislature necessary to constitute a quorum may well be thirty-one members of the House of Representatives. There is nothing inherently undemocratic about this result. At a joint session, each legislator's vote is equal, notwithstanding the fact that there are twice as many representatives as senators. In view of this it would be anomalous to impose a quorum requirement under which the absence of one senator would count for more than the absence of one representative. [I]t is frequently the case that some or many members are absent, often for legitimate reasons, and just in proportion to their absence is the power of the minority increased. To be absent has the practical effect of voting against every bill considered in the course of the absence [T]o require more than a majority for a quorum is in effect to give the rule to the minority, instead of the majority; and thus to subvert the fundamental principle of representative government. R. Luce, Legislative Procedure 47 (1922). Appellants' argument would mean that ten senators by failing to appear at a joint session could prevent action by the other fifty legislators. This would subvert the rule of sections 25 and 26 of article III that a majority of the members of the Legislature in joint session suffices to take confirmatory action. " IV. Uniform Legislative Rule 51 states in part: "The president of the senate in the presence of the speaker of the house presides over joint sessions and the joint sessions are governed by the uniform rules." The Speaker of the House was absent dur ing the confirmation voting, a fact which, according to the appellants, means that the appellees were not confirmed. As noted, the trial court held this claim to be nonjus-ticiable finding that it arose out of "the rulemaking powers of the legislature." The trial court stated that "out of respect owed to a coordinate branch of state government, [it] defers to the wisdom of the legislature concerning violations of legislative rules which govern the internal workings of the legislature." We agree with the trial court's conclusion that this claim was nonjusticiable. Our holding in Malone v. Meekins concerning the nonjusticiability of violations of the legislative rules is fully applicable here. Appellants' attempt to distinguish Malone by arguing that Rule 51 is in effect a rule of constitutional law based on the bicameral nature of the Legislature. The appellants assert: "To permit a joint session to take place which is presided over only by the leader of one house would allow an unprecedented attack upon the bicameral nature of the Alaska Legislature." This argument is without merit. The Legislature is a bicameral body for some purposes and a unicameral body for others. When it acts in joint session it acts as a unicameral body. The checks and balances that are present between the houses in a bicameral legislature do not exist in a unicameral setting, and it is a contradiction in terms to suggest that they do. Rule 51 is not a rule of constitutional law and its violation does not give rise to a justiciable claim. V. The appellants also argue that the Governor called the joint session for the purpose of preventing the House from conducting hearings on some of the appointees. They contend that this amounts to an unconstitutional invasion of the powers and prerogatives of the House. Article III, section 17 of the Alaska Constitution provides: Whenever the governor considers it in the public interest, he may convene the legislature, either house, or the two houses in joint session. Although each house of the legislature may conduct such inquiry as it thinks desirable into the suitability of appointees whose confirmation is required, this power does not serve as a limitation on the power of the Governor to call a joint session. The plain text of the constitution grants convening power to the executive. However, the constitution does not leave the Legislature powerless to defend its own prerogatives. While the Governor may call a joint session, his call does not determine the vote. Whether a joint session has been called prematurely is a question that can be readily decided by a majority of the legislators. VI. Appellants' final contention is that reasonable public notice of the joint session was not given. This claim is based on the Alaska Public Meetings Act, AS 44.62.310-312. We need not consider whether this presents a justiciable controversy because it is clear that there is a constitutional requirement of reasonable notice of legislative meetings. Malone v. Meekins, 650 P.2d 351, 358 n. 14 (Alaska 1982). It is also evident that reasonable notice was given in this ease. The Governor's proclamation of June 3 called the joint session for 2:00 p.m. on June 7. The proclamation was immediately published and delivered to the clerks of each house of the Legislature, to the office of each legislator, and was disseminated by the broadcast and print news media. None of the appellants claim that they were unaware of the joint session or that the notice afforded was so short that they were incapable, in fact, of attending. Although the House was not in session on June 3, it convened on June 6 and all representatives could easily have attended the session on the 7th, had they wished to do so. This is not a case where legislators are called away from their usual occupations many hundreds of miles away from the capítol without time to rearrange their work schedules or an opportunity to prepare for the subject of the session at hand. The judgment of the superior court is AFFIRMED. RABINOWITZ, C.J., not participating. . Art. II, § 10 of the Alaska Constitution provides: "Neither house may adjourn or recess for longer than three days unless the other concurs." . "The purpose of a call of the house is to compel the attendance of absent members." P. Mason, Manual of Legislative Procedure § 190, at 167 (1979). . AS 24.10.020 provides: The majority leader of each house serves as the presiding officer pro tempore of that house if the elected presiding officer resigns, becomes incapacitated, or dies. The presiding officer pro tempore is authorized to perform the duties of that office until the house elects a regular presiding officer, and the election shall be made the order of business of the house at the earliest appropriate hour. . Other actions committed to the legislature in joint session are confirmation of certain military officers of the state, art. Ill, § 19; approval of an extended period of martial law, art. Ill, § 20; disapproval of executive branch organizational changes, art. Ill, § 23; confirmation of the non-attorney members of the judicial council, art. IV, § 8; confirmation of the members of the Commission on Judicial Qualifications, art. IV, § 10; confirmation of the members of the University of Alaska Board of Regents, art. VII, § 3. Article II, § 16 provides that the legislature shall meet in joint session to reconsider passage of any bill vetoed by the governor. Section 16 was amended in 1976 and it now reads as follows; the amended language is underlined: Upon receipt of a veto message during a regular session of the legislature, the legislature shall meet immediately in joint session and reconsider passage of the vetoed bill or item. Bills to raise revenue and appropriation bills or items, although vetoed, become law by affirmative votes of three-fourths of the membership of the legislature. Other vetoed bills become law by affirmative vote of two-thirds of the membership of the legislature. Bills vetoed after adjournment of the first regular session of the legislature shall be reconsidered by the legislature sitting as one body no later than the fifth day of the next regular or special session of that legislature. Bills vetoed after adjournment of the second regular session shall be reconsidered by the legislature sitting as one body no later than the fifth day of a special session of that legislature, if one is called. The vote on reconsideration of a vetoed bill shall be entered on the journals of both houses. By contrast, the general legislative power requires "an affirmative vote of a majority of the membership of each house," art. II, § 14. Similarly, various other acts taken by the legislature require a designated vote of ."each house," e.g. two-thirds of the membership of each house is required to provide for an effective date other than ninety days after an enactment, art. II, § 18; boundary changes made by the local boundary commission are effective unless disapproved "by a majority of the members of each house." Art. X, § 12. . See also Wilson v. Atwood, 270 Mich. 317, 258 N.W. 773, 774 (Mich.1935) ("The number of members elected to the House of Representatives in 1933 was 100; to the Senate, 32. The total combined membership of the two houses was, therefore, 132, and it was necessary that a majority of that number, or 67, be present in order to constitute a quorum for the 'joint convention.' ") . This, of course, does not mean that meetings of a joint session of the legislature can be convened without reasonable notice of the time and place of the meeting. See Malone v. Meekins, 650 P.2d 351, 358 n. 14 (Alaska 1982). . This fact was recognized by implication in the debates of our Constitutional Convention. One delegate objected to the insertion of the language "legislature in joint session" in the confirmation sections stating, "I believe we have adopted a bicameral legislature and we ought to operate as one." 3 Proceedings of the Alaska Constitutional Convention at 2172 (1956). His objection was rejected by the convention.

10419483

George CURTISS and Nancy Curtiss, and all other persons or parties unknown claiming a right, title, estate, lien or other interest in the real estate described in the Complaint in this action, hereby designated as Unknown Defendants, Appellants, v. Thomas H. HUBBARD and Frances H. Hubbard, Appellees

Curtiss v. Hubbard

1985-08-02

No. S-722

1154

1155

703 P.2d 1154

703

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:38:10.444640+00:00

CAP

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

George CURTISS and Nancy Curtiss, and all other persons or parties unknown claiming a right, title, estate, lien or other interest in the real estate described in the Complaint in this action, hereby designated as Unknown Defendants, Appellants, v. Thomas H. HUBBARD and Frances H. Hubbard, Appellees.

George CURTISS and Nancy Curtiss, and all other persons or parties unknown claiming a right, title, estate, lien or other interest in the real estate described in the Complaint in this action, hereby designated as Unknown Defendants, Appellants, v. Thomas H. HUBBARD and Frances H. Hubbard, Appellees. No. S-722 Supreme Court of Alaska. Aug. 2, 1985. Chrystal Sommers Brand and Edward G. King, Ziegler, Cloudy, King, Brown & Peterson, Ketchikan, for appellants. A. Lee Petersen, Anchorage, for appel-lees. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

521

3169

OPINION PER CURIAM. We decided the merits of this case in Hubbard v. Curtiss, 684 P.2d 842 (Alaska 1984), affirming the judgment in part, reversing it in part, and remanding the case for entry of a decree quieting title to a portion of the property involved in favor of the Curtisses. On remand, the Curtisses moved for an award of attorney's fees. The trial court denied the motion on two grounds: first, because awarding attorney's' fees would exceed the scope of the remand from this court, and second, because the Curtisses were not the prevailing parties, even if our decision were considered. The court thus let stand its determination that neither party had prevailed and each should bear his or her own costs and attorney's fees. In our view the scope of the remand on the merits did not preclude the court from addressing once again the question of attorney's fees. Attorney's fees are awarded to the prevailing party under Civil Rule 82. An appellate decision affirming a judgment irj part and reversing it in part may change' important facts on which an earlier prevailing party determination was based. The trial court has the power to reconsider its determination after such a decision so that the goal of awarding partial attorney's fees to the party who has won the lawsuit can be realized. This is consistent with the practice in previous cases that have been remanded by this court to the superior court for further proceedings. See, e.g., Continental Insurance Co. v. United States Fidelity and Guaranty Co., 528 P.2d 430 (Alaska 1974), appeal after remand 552 P.2d 1122 (Alaska 1976); Western Airlines, Inc. v. Lathrop Co., 499 P.2d 1013 (Alaska 1972), appeal after remand 535 P.2d 1209, 1216-17 (Alaska 1975); McCoy v. Alaska Brick Co., 389 P.2d 1009 (Alaska 1964), appeal after remand 400 P.2d 454, 457 (Alaska 1965). The court did not, however, abuse its discretion in determining that neither party had prevailed. The Curtisses claimed that they owned all of Lot 13. At the trial this claim was resolved against them and in favor of the Hubbards. This adjudication was not greatly changed by our decision on appeal. One corner of Lot 13 was ordered transferred to the Curtisses. This appears to be about one-sixteenth of the entire lot. The Curtisses have acknowledged that the superior court's pre-appeal determination that neither party had prevailed was not error. Our decision did not change the underlying judgment so significantly that we are able to say that the court abused its discretion in persisting in the view that neither party won this lawsuit. AFFIRMED.

10328515

Ruth M. BROWN, Appellant, v. Donald BROWN, Jr., Appellee

Brown v. Brown

1996-03-29

No. S-6816

206

212

914 P.2d 206

914

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:39:06.081692+00:00

CAP

Before RABINOWITZ, MATTHEWS, COMPTON, and EASTAUGH, JJ.

Ruth M. BROWN, Appellant, v. Donald BROWN, Jr., Appellee.

Ruth M. BROWN, Appellant, v. Donald BROWN, Jr., Appellee. No. S-6816. Supreme Court of Alaska. March 29, 1996. Dan Allan, Law Office of Dan Allan, Anchorage, for Appellant. Donald Brown, Jr., Pro Se, Kenai. Before RABINOWITZ, MATTHEWS, COMPTON, and EASTAUGH, JJ.

2979

18307

OPINION COMPTON, Justice. I. INTRODUCTION In the parties' divorce proceeding, Ruth Brown was awarded approximately fifty-percent of the marital property, one year of rehabilitative alimony, legal and physical custody of the children, and child support. She appeals issues related to each. II. FACTS AND PROCEEDINGS Ruth Brown and Donald Brown were married in 1981. They have three children. During the marriage Ruth was primarily a homemaker, although she attended college briefly early in the marriage. Donald worked for his parents' construction company. From 1990 to 1993, his wages from this company varied from $58,517.60 to $71,-561.45. In mid-1992 the parties separated. Ruth and the children moved to Anchorage from Soldotna. Ruth began working as a medical receptionist, earning $1,400 per month, and began a training program to become a physician's assistant. She also sued Donald for divorce and other relief. Trial was held in August 1994. The parties agreed that Ruth would have primary physical custody of the children. Following trial the court granted her legal custody. The court awarded Donald the marital home in Soldotna, a 1979 auto, and various personal property, along with the responsibility for payment of two student loans, an auto loan, and several credit card debts. With an equalization payment from Ruth, his property award totaled $17,685. The court awarded Ruth a newer auto, the portion of Donald's retirement accrued during marriage, and various personal property, and also required an equalization payment to Donald. Her property award totaled $17,681. Donald was awarded visitation on alternate weekends, a substantial part of the summer vacation, half of Christmas holidays, alter nate Thanksgivings, Easters, and spring breaks, his birthday, and — if no significant travel is involved — Father's Day. The paternal grandparents were awarded a vacation period with the children covering part of the father's summer visitation. Transportation expenses are to be paid by Donald until 1996, when they are to be divided evenly between Donald and Ruth. The court ordered Donald to pay child support of $1,291 per month. The court also awarded rehabilitative alimony of $1,000 per month for one year. Ruth appeals seven different issues. III. DISCUSSION A. The Superior Court Correctly Determined the Equity in the Marital Home A trial court's determination of the value of the property available for distribution "is a factual determination which will be reversed only if clearly erroneous." Jones v. Jones, 835 P.2d 1173, 1175 (Alaska 1992). Ruth argues that the court erroneously valued the equity of the marital house at $43,100. She argues that uncontested testimony placed the appraisal at $61,000. She argues that only one outstanding loan, for $9,202, existed at the time of trial. She concludes that the equity in the house was therefore $51,798. The appraisal value of the residence was stipulated to be $61,000. Testimony indicated two loans were taken out using the residence as collateral. One was from Donald's parents for $20,000 to purchase the residence. At the time of trial the balance was $9,272.55. In August 1992, the balance was $12,930.71. The second loan was for the purpose of moving the residence and furnishing it with gas. By the time of trial, this loan had been paid off. However, in August 1992 this loan had a balance of $5,749.75. The parties separated in July or August 1992. The court found that the equity value of the property was $43,100; given the figure it arrived at, it is clear that the court valued the property as of the date of separation ($61,000 - $12,930.71 - $5,000 = $43,-069.29), not the date of trial. Ruth argues that the property should be valued as of the date of trial. "Ordinarily . the date of valuation, which may be distinct from the date employed to distinguish marital from post-marital property, should be as close as practicable to the date of trial." Ogard v. Ogard, 808 P.2d 815, 819 (Alaska 1991) (footnote omitted). This is to provide recent rather than stale financial valuations. Id. The date for distinguishing marital from post-marital property, however, is the date of separation. Cox v. Cox, 882 P.2d 909, 917 (Alaska 1994). Since post-separation income is separate property, payments made by Donald that increased the equity in the house are his separate property. Therefore, the trial court appropriately valued the mortgage liability on the house as of the date of separation. B. The Trial Court Did Not Abuse Its Discretion in Dividing the Property Equally Ruth argues that the statutory factors dictate a property division weighted in her favor. She cites the different earning capacities, her lack of training and skills, and her absence from the job market. The court has broad discretion in determining a property division. Laing v. Laing, 741 P.2d 649, 651 (Alaska 1987). By statute, the court is empowered to divide all of the property acquired during the marriage and to invade separate property of either spouse if a balancing of the equities so requires. AS 25.24.160(a)(4). On review, this court will only disturb a property division if it is clearly unjust. Laing, 741 P.2d at 651. A 50/50 property split is presumptively just and is the starting point for application of the factors the court must consider. Hayes v. Hayes, 756 P.2d 298, 300 (Alaska 1988); Wanberg v. Wanberg, 664 P.2d 568, 574-75 (Alaska 1983). An unequal division may be upheld "when it is justified by relevant factors identified in the findings of the court." Hayes, 756 P.2d at 300. In Hayes, we upheld an unequal division because the findings of the trial court indicated "the wife's future need for income during a period when she will be pursuing an advanced professional degree." Id. This was akin to rehabilitative alimony. Where a couple has sufficient assets, "the spouse with the smaller earning capacity can and should receive a larger share in the property distribution to aid him or her in this transition." Dixon v. Dixon, 747 P.2d 1169, 1173 (Alaska 1987). Furthermore, property division is preferable to alimony for providing for parties' needs. Id. The court awarded Donald the marital home, a 1979 auto and various personal property, as well as the responsibility for several debts. His property award totaled $17,685. The court awarded Ruth a newer auto, the portion of Donald's retirement accrued during marriage, and various personal property. Her property award totaled $17,-681. However, her personal property was not valued, though Donald's was, and testimony indicated that she had a piano as well as other goods. We are not persuaded that the court's award was an abuse of discretion. C. The Superior Court's Determination of Child Support Must Be Supported by Findings Ruth argues that the superior court erred in determining the child support award because it improperly calculated Donald's adjusted income under Civil Rule 90.3. She argues that the court did not take into account Donald's permanent fund dividend or his employer-provided transportation. A child support award will not be reversed unless this court has "a definite and firm conviction based on the record as a whole that a mistake has been made." Kowalski v. Kowalski 806 P.2d 1368, 1370 (Alaska 1991). According to the commentary to Rule 90.3, permanent fund dividends are to be included in income. Alaska R.Civ.P. 90.3 cmt. III.A.6. Such an inclusion also finds support in the language of the rule: "total income from all sources." Alaska R.Civ.P. 90.3(a)(1). The commentary also suggests inclusion of "perquisites or in-kind compensation to the extent that they are significant and reduce living expenses, including . employer provided . transportation benefits." Alaska R.Civ.P. 90.3 cmt. III.A.19. While we have not addressed specifically the inclusion of permanent fund dividends, we have held that transportation expenses need to be considered. In Coghill v. Coghill, 836 P.2d 921, 926 (Alaska 1992), we reviewed the trial court's assessment of the income of a self-employed parent. The parent objected to the trial court's disallowance of a deduction from income for the business expense of transportation, allowed under federal income tax rules. Athough transportation cost is a legitimate business expense, we held it also reduced his living expenses and thus needed to be incorporated into his income. In this case, the court ordered child support of $1,291 per month, apparently calculated according to Rule 90.3. No worksheet was provided, however. It is important that trial courts provide a written analysis of their child support awards. Without such an analysis, we are unable to review their determi nations; a remand becomes necessary in most cases. This is such a case, and we therefore remand for findings setting forth the computations on which the child support award was based. D.The Reduction in Child Support Payments When Donald Has Extended Custody Needed to Be Supported With Findings The court allowed a fifty-percent reduction in child support payments when the children are with Donald for longer than twenty-seven consecutive days. This is scheduled to occur once every summer. Ruth challenges this allowance, alleging that the disparate income of the parties, as well as a minimal reduction in support expenses during the period, make the reduction unfair. Civil Rule 90.3 specifically grants the trial court power to make such an adjustment. Only one case from this court has specifically discussed Rule 90.3(a)(3). In Renfro v. Renfro, 848 P.2d 830, 832 (Alaska 1993), we first observed that "[t]he decision whether to credit the obligor parent's support obligation for these expenses is committed to the superior court's discretion." We then held that the trial court must make specific findings detailing its reasons for declining to apply the adjustment, and remanded the case to the superior court for such findings. Id. We hold that just as a trial court must make specific findings in denying a Civil Rule 90.3(a)(3) reduction, so must it make specific findings in allowing such a reduction. Were we to hold otherwise, Rule 90.3(a)(3) would be transformed into a presumption that child support payments should be reduced, absent express findings to the contrary. We see nothing in the language of Rule 90.3(a)(3) that suggests that it establishes any such presumption. Rather, Rule 90.3(a)(3) only states that the court "may allow" such reductions. We remand this issue to the superior court for specific findings explaining both its decision to reduce the child support award pursuant to Rule 90.3(a)(3), and its decision to reduce this award by the full fifty-percent allowable under the Rule. E. The Superior Court Did Not Abuse its Discretion in Providing Visitation Rights for the Paternal Grandparents Ruth argues that "[i]t was an abuse of discretion for the court to provide the grandparents with specific visitation rights, when such visitation was not ordered pursuant to a finding that it would be in the best interests of the children." "[T]he court may . make, modify, or vacate an order for the custody of or visitation with the minor child . including an order that provides for the visitation by a grandparent or other person if that is in the best interests of the child." AS 25.24.150(a). AS 25.24.150(a) does not require the trial court to specify why such visitation is in the best interests of the children. Instead, it merely states that the trial court may award such rights if they are, in fact, in the best interests of the children. Thus it is implicit in the court's decision that such visitation is in the best interests - of the children. The trial court could have reasonably determined that visitation by the paternal grandparents would be in the best interests of the children; we see no reason to require a precise explanation. Cases cited by Ruth do not support a contrary result. F. The Allocation of Transportation Expenses for the Children Was Proper The superior court ordered Donald to pay transportation expenses for the children's travel until 1996; the expenses would be split after that. It carved out an exception for Father's Day, Mother's Day, and birthday visits; those expenses would be borne by the "honored" parent. Ruth argues that this order was an abuse of discretion, since the method of travel was left to Donald, and he might choose "expensive" air travel. Nothing in the record indicates that Donald has control over the travel method after 1996. While the court ordered Ruth to cooperate with air travel if "the father has arranged for transportation by air to Kenai," the current home of Donald, this statement occurred in the paragraph that ordered Donald to pay for expenses through 1996. Nothing indicates that Donald has sole control over travel method after 1996, and Ruth's argument fails. . G. The Rehabilitative Alimony Award Was Proper The court also awarded rehabilitative alimony of $1,000 per month for one year. The court stated that Ruth "has made a good case for rehabilitative or reorientation alimony. There is no question that all concerned will benefit from the enhanced income that will attend the completion of her studies. I cannot, however, justify such payments beyond October 1995 at $1,000 per month." Ruth's studies were slated to end in September 1995, with a board exam at the end of October. Her expected income would then rise to between $35,000 and $38,000 per year. Ruth argued that the award was insufficient to meet its stated purpose, as it terminated prior to her certification, which was expected in January 1996. She therefore requested that rehabilitative alimony be extended to January 1996. The object of rehabilitative alimony is to rehabilitate the spouse's job skills. Richmond v. Richmond, 779 P.2d 1211, 1215 (Alaska 1989). As we stated in Richmond: Rehabilitative alimony may be awarded for a specific purpose and a short duration even with an adequate property division, but is limited to job training or other means directly related to entry or advancement within the work force. The party seeking rehabilitative alimony must intend to use it for such purposes. Absent such an intent, rehabilitative alimony should not be awarded. Id. (citations omitted); see also Jones v. Jones, 835 P.2d 1173, 1178-79 (Alaska 1992) (rehabilitative alimony is warranted only if it will be used for "job training designed to lead to employment"); Schanck v. Schanck, 717 P.2d 1, 5 (Alaska 1986) (rehabilitative alimony is "properly limited to job training or other means directly related to the end of securing for one party a source of earned income"). The trial court must find that the alimony will be applied to job training. Miller v. Miller, 739 P.2d 163, 165 (Alaska 1987) (remanding for such a finding, and allowing an award "[o]nly if the court finds that she does intend to prepare to re-enter the work force"). By her own testimony, Ruth acknowledged that her training and exams would be fully completed by the end of October 1995. While she alleged that she would not be able to enter the job market in her new profession until the beginning of 1996, nothing prevented her from finding employment for the last part of 1995. She had no additional school expenses and no studies to complete. Understandably she would have liked to be supported for that period; however, nothing prevented her from supporting herself. In our cases upholding rehabilitative alimony awards, no ease identifies a specific time when rehabilitative alimony must terminate. However, in Dixon v. Dixon, 747 P.2d 1169, 1173 (Alaska 1987), we overturned a rehabilitative alimony award, finding that the education plan did not prevent the spouse from working full-time, and thus did not justify the "substantial award." Applying the reasoning of Dixon to the case before us, we conclude that the superior court's termination of rehabilitative alimony at the conclusion of Ruth's studies was well within its discretion. IV. CONCLUSION We REMAND the case to the superior court for findings regarding the child support award, in accordance with parts III.C and D of this opinion. We AFFIRM the decision of the superior court in all other respects. . The court is to consider the following factors: (A) the length of the marriage and station in life of the parties during the marriage; (B) the age and health of the parties; (C) the earning capacity of the parties, including their educational backgrounds, training, employment skills, work experiences, length of absence from the job market, and custodial responsibilities for children during the marriage; (D) the financial condition of the parties, including the availability and cost of health insurance; (E) the conduct of the parties, including whether there has been unreasonable depletion of marital assets; (F) the desirability of awarding the family home, or the right to live in it for a reasonable period of time, to the party who has primary physical custody of children; (G) the circumstances and necessities of each party; (H) the time and manner of acquisition of the property in question; and (I)the income-producing capacity of the property and the value of the property at the time of division. AS 25.24.160(a)(4). . This court has not officially adopted the commentary, but may rely on it for guidance. See Eagley v. Eagley, 849 P.2d 777, 779 (Alaska 1993) (used to aid in determining adjusted annual income for self-employed parent). . "The court may allow the obligor parent to reduce child support payments up to 50% for any period in which that parent has extended visitation of over 27 consecutive days." Alaska R.Civ.P. 90.3(a)(3). . We do not retain jurisdiction over this appeal. In the event either party wishes to appeal the ruling on remand, the party may file, within 30 days after the superior court distributes its ruling, a notice to reinstate the appeal, a supplemental statement of points on appeal, and request a supplemental briefing schedule.

10343690

Robert D. NEILSON, Appellant, v. Judith NEILSON, Appellee

Neilson v. Neilson

1996-04-19

No. S-6209

1268

1276

914 P.2d 1268

914

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T19:39:06.081692+00:00

CAP

Before RABINOWITZ, MATTHEWS and EASTAUGH, JJ.

Robert D. NEILSON, Appellant, v. Judith NEILSON, Appellee.

Robert D. NEILSON, Appellant, v. Judith NEILSON, Appellee. No. S-6209. Supreme Court of Alaska. April 19, 1996. Robert D. Neilson, New Zealand, pro se. Judith Imlach, Anchorage, pro se. Before RABINOWITZ, MATTHEWS and EASTAUGH, JJ.

4735

29494

OPINION RABINOWITZ, Justice. I. INTRODUCTION This appeal raises two issues, both relating to child support: (1) whether the superior court erred in denying a non-custodial parent's Civil Rule 60(b) motion for relief from a child support order; and (2) whether the superior court erred in modifying the noncustodial parent's child support obligation under Civil Rule 90.3. II. FACTS AND PROCEEDINGS Robert Neilson and Judith Imlach, formerly Judith Neilson, were married in Anchorage in 1983. They had two children: Zachary David Neilson, born April 17, 1984, and Aislinn Bridget Neilson, born April 14, 1986. Robert filed for divorce in May 1987, and in April 1988, the superior court granted custody of the children to Judith and ordered Robert to pay child support. Robert moved to California after filing for divorce and resided there through the time that he filed this appeal. Judith and the children have remained in Alaska. The parties' original divorce decree provided that Robert's child support obligation would be the greater of $40 per month per child or 27% of his average monthly income. The Child Support Enforcement Division (CSED) calculated Robert's child support obligation to be $227 per month based on his monthly income. Under the Uniform Reciprocal Enforcement of Support Act (URESA), Robert was also subject to a concurrent California child support order in the amount of $234 per month. In October 1989, after Robert contacted the CSED inquiring about child support ar-rearages and the effect of the two child support orders, the CSED responded to Robert stating: . Because of the complications involved in keeping two separate orders, one based on 90.3 in Alaska and the other one in California set by the California courts, our client [Judith] requested that we accept whatever the California courts decided regarding child support amounts. Effective March 1, 1989, this is what we have done. Thereafter, on July 24, 1990, the CSED filed a motion in the superior court of Alaska to modify child support. Specifically, the motion, supported by an affidavit and memorandum of law, requested that Robert's support obligation be increased to $368 per month. Robert received notice of Judith's motion and hired counsel to represent him. On September 29, 1990, the superior court granted Judith's motion and ordered Robert to pay $368 per month. Robert then filed a Motion for Reconsideration, an Opposition to Motion for Modification of Child Support, and a Motion for Evi-dentiary Hearing, which Judith joined. Robert's principal contention was that the CSED improperly denied some of his business expenses when it calculated his Rule 90.3 support obligation. The superior court granted both of Robert's motions. Robert's attorney had filed a Motion to Withdraw with Cause, which the superior court granted. Before withdrawing, Robert's counsel sent him a letter stating that the "signed Order for Evidentiary Hearing . will need to be calendared by your new attorney." Though the record indicates that Robert hired a new attorney, Robert notes that his new attorney "left the United States promptly after his name appeared on the Substitution of Counsel, and never did anything on Robert's behalf." Consequently, since neither Robert nor his counsel followed up on his previously granted motions, the superior court's September 29, 1990 order stood undisturbed. In May 1993, after more than a two year hiatus in proceedings, Robert, appearing pro se, filed a Civil Rule 60(b) motion for relief from the superior court's 1990 order requiring him to pay $368 per month. Judith filed a response to Robert's motion and a cross motion to modify child support. The superi- or court ordered both parties to file updated child support affidavits, recent tax returns, and pay stubs, and set the case for hearing before a Master. After hearing evidence, the Master issued a report recommending that Robert's Civil Rule 60(b) motion for relief be denied and Judith's motion to modify child support be granted. After he was granted an extension of time, Robert filed his objections to the Master's Report, and Judith replied to his objections. By order dated January 4, 1994, the superior court approved the Master's report, denied Robert's motion, and ordered Robert to pay modified child support in the amount of $535.01 per month. On January 7, 1994, apparently before receiving notice of the superior court's order, Robert filed motions for leave to File Erratum, to Reject Master's Report, and to Grant a Hearing. The superior court denied these motions. Robert appeals the superior court's denial of his Civil Rule 60(b) motion, and his January 7, 1994 motions, and its grant of Judith's motion to modify child support. III. DISCUSSION A. The superior court did not err in denying Robert's Civil Rule 60(b) motion. Robert's motion for relief from the order modifying his child support obligation from $227 per month to $368 per month was not filed until May 1993, over two years after. Robert received notice of it. Accordingly, his motion is limited to grounds (4), (5) and (6) of Rule 60(b). Under Rule 60(b)(4), Robert seems to argue that the Aaska Superior Court order permanently raising support to $368. is void because the California URESA order supersedes the pre-existing Aaska order. In this respect, he observes that "[h]e cannot reasonably be expected to serve or satisfy two masters giving different instructions." To properly address this claim, a short discussion of the URESA is helpful. The original version of URESA, as adopted in Aaska in 1953, contained a provision which explicitly permitted the concurrent existence of more than one valid, binding order of support. The passage was found in section 30 of the 1950 version of the uniform act, and it remained in force in Aaska in substantially the same form until January 1, 1996. It read: 1995 SLA Ch. 57, § 21 & 28. An order of support issued by a court of this state, when acting as a responding state, does not supersede a previous order of support issued in a divorce or separate maintenance action, but the amounts for a particular period paid under either order shall be credited against amounts accruing or accrued for the same period under both. AS 25.25.240 (emphasis added); see also URESA § 30, 9B U.L.A. 553, 600 (1987). When URESA was amended in 1968 by the National Conference of Commissioners on Uniform State Laws, a similar, even more explicit provision replaced ' section 30 — section 31 of the Revised Uniform Reciprocal Enforcement of Support Act (RURESA). Athough RURESA was never adopted in Aaska, California enacted it in 1970. 1970 CahStat. 1126. Section 31 as adopted in California reads: A support order made by a court of this state pursuant to this chapter does not nullify and is not nullified by a support order made by a court of this state pursuant to any other law or by a support order made by a court of any other state pursuant to a substantially similar provision of law, regardless of priority of issuance, unless otherwise specifically provided by the court. Amounts paid for a particular period pursuant to a support order made by the court of another state shall be credited against the amounts accruing or accrued for the same period under a support order made by the court of this state. Cal.Fam.Code § 4840 (emphasis added). Given that the California URESA order in this case did not explicitly modify, nullify, or supersede the pre-existing Aaska support order, we conclude that Civil Rule 60(b)(4) is inapplicable since the September 29, 1990 Aaska order of support was not superseded and thus was not void. Under Rule 60(b)(5), Robert apparently argues that the order "has been satisfied, released, or discharged, or a prior [order] upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the [order] should have prospective application." Aaska R.Civ.P. 60(b)(5). To this effect, Robert states: By breaching her October 16, 1989 agreement nine months after it was made, and by continuing to have California determine and collect child support from Robert, Judith is estopped to deny that the September 29,1990 Order is void. The "October 16, 1989 agreement" referred to is the letter the CSED sent to Robert stating that Judith "accept[s] whatever the California courts decided regarding child support amounts." Judith argues that the intention of the letter was to relieve Robert of the necessity of providing income information every six months. In a May 17, 1993 letter to the CSED, Judith also explained her motivations as follows: In June 22, 1989, a URESA order was entered in California ordering support of $234.00 per month_ I was informed by CSED that they would no longer be making the adjustments to the ongoing support every six months as the Divorce Decree ordered. I would have to request a modification through the courts to have the amount changed. At the time, I felt that the Alaskan and the California URESA orders were close enough in amounts that it would be easiser [sic] to go with the California amount. I later realized that there was a considerable difference between the Alaskan and Californian Child Support Guidelines, so in mid 1990', I requested a modification of my Alaskan order. Whether the parties had an agreement is not determinative. What is determinative is the fact that the parties never precluded future modifications. Therefore, we hold that Robert failed to meet the requirements of Rule 60(b)(5) in that the letter of October 1989 did not constitute a release, satisfaction, or discharge of the superior court's support order of September 29,1990. Robert also argues that he is entitled to relief under Rule 60(b)(6). As we stated in O'Link v. O'Link, 632 P.2d 225, 229 (Alaska 1981), "Clause (6) is reserved for extraordinary circumstances not covered by the preceding clauses." Robert notes several personal factors — bankruptcy, poverty, medical conditions, and his attorneys' performance — to support his claim for relief under Rule 60(b)(6). However, these factors, and especially any neglect on his attorneys' part, fall under the first clause of the Rule 60(b) umbrella: mistake, inadvertence, surprise or excusable neglect. However, since Robert made his motion for relief more than one year after the order was entered, he is not entitled to relief under Rule 60(b)(1). Accordingly, we conclude that the superior court did not abuse its discretion in denying Robert's motion for relief under Rule 60(b)(6). B. The superior court erred in accepting the Master's clearly erroneous child support calculation. After hearing testimony and receiving evidence, the Master concluded that Robert's modified support obligation should be $535.01 per month. In arriving at this figure, the Master disallowed approximately $7,020 worth of claimed expenses submitted by Robert. Robert argues that the Master, as well as the superior court by virtue of its adoption of the Master's report, erred in two ways: (1) as a matter of law, it was improper for the Master to disallow business expenses that are otherwise allowable under the Internal Revenue Code; and (2) in any event, the Master's factual findings were clearly erroneous. In considering Robert's claim that the Master improperly disallowed over two-thirds of his claimed business expenses, the commentary to Civil Rule 90.3 is instructive: Self-Employment Income. Income from self-employment . includes the gross receipts minus the ordinary and necessary expenses required to produce the income. Ordinary and necessary expenses do not include amounts allowable by the IRS for the accelerated component of depreciation expenses, investment tax credits, or other business expenses determined by the court to be inappropriate. Civil Rule 90.3 Commentary, III(B). Robert argues that lacking any guidelines for what constitutes an "ordinary and necessary" expense, or for what constitutes an "inappropriate" expense, the superior court should accept those deductions which the IRS allows self-employed persons pursuant to the Internal Revenue Code, provided there is no evidence of fraud. In this vein, Robert argues that there should be a rebuttable presumption that business expenses reported to the IRS are ordinary and necessary for the production of income for purposes of child support determinations. We have addressed the question of whether it is proper for a parent to deduct business expenses in the context of determining income for purposes of Rule 90.3. In Ogard v. Ogard, 808 P.2d 815 (Alaska 1991), this court, while recognizing that total deference to a parent's tax returns may pose problems, nonetheless held that straightline depreciation is an allowable deduction under Civil Rule 90.3: Furthermore, while we acknowledge the court's concerns regarding the accuracy of an income tax return as a reflection of true income, the technique the court employed did not allow sufficient recognition of appropriate business expenses- Depreciation is a means of reflecting on an annual basis the costs of capital equipment. Such costs are real and should not be disregarded unless it appears that equipment was acquired in order to avoid or reduce the obligor's child support obligation. Id. at 819. See also Eagley, 849 P.2d at 781 ("We therefore hold that in the context of a Civil Rule 90.3 adjusted income determination, the superior court should allow, as ordinary and necessary business expenses, a deduction for straightline depreciation of the parent's business' real estate."). This court also addressed the issue of claimed business expenses in Coghill v. Coghill, 836 P.2d 921 (Alaska 1992): [T]he [superior] court disallowed deductions for certain expenses relating to use of an automobile, work clothing, meals, a home office, and imputed taxes.... In our view [appellant] misunderstands the superior court's denial of his various deductions. The court was not implying that his expenses . were not legitimate business expenses. Rather, the court recognized that such expenses reduced [appellant's] living expenses. Here, where the meals were consumed by [appellant] and where the type of clothing purchased by [appellant] was not significantly different from the clothing purchased by most Alaskans, the superior court properly disallowed deductions for these and other expenses for the purposes of computing Civil Rule 90.3 income. Id. at 926. Though Judith takes this to mean that Rule 90.3 "limits business expenses beyond what is allowed by the IRS," a closer reading of Coghill reveals that the holding was fact specific. Id. at 926 n. 6. The distinguishing factor in Coghill, as illustrated above in reference to clothing, was that the disallowed "business" expenses would have been otherwise incurred. Id. That is, in Rule 90.3 parlance, the expenses were not "ordinary and necessary expenses required to produce . income." Rule 90.3 Commentary, 111(B). In Coghill, the superi- or court made specific findings that the claimed expenses were in fact personal, a distinction lacking in the case at bar. Id. In Zimin, 837 P.2d at 118, this court held that a parent's contribution to a "Capital Construction Fund" was not an allowable deduction for Rule 90.3 purposes. Id. at 122-23. Significantly, the $25,000 contribution at issue, unlike accelerated depreciation, is not the type of expense that the commentary expressly disallows. Furthermore, under federal law, the contribution was deductible from the parent's reportable income. Id. at 120 & n. 2. Nonetheless, we held that "[s]ince the goal of the Rule 90.3 guidelines is to obtain a realistic estimate of an obligor's adjusted annual income, these funds should be included in [the obligor's] 1990 income for the purposes of calculating child support. To hold otherwise would severely understate [appellant's] most current income figures." Id. at 123. Two propositions can be gleaned from these decisions: (1) this court, in contrast to Robert's suggestion, has refrained from adopting a bright line test that all expenses recognized by the IRS are similarly recognized under Rule 90.3; and (2) instead of a hard and fast rule, the determinative factor as to whether a claimed expense is deductible under Rule 90.3 is whether it is an "ordinary and necessary expense[ ] required to produce the income" and whether the allowance of such an expense would defeat the goals of Civil Rule 90.3. Thus, insofar as Robert's claimed expenses are necessary for producing his income, they are deductible under Rule 90.3. In this light, a parent's tax return serves two functions. First, as evidence, it indicates whether a claimed expense was in fact incurred. Second, it may support a parent's claim that a given expense is ordinary and necessary. It does not, however, serve as a proxy for the necessary determination of whether a claimed expense was ordinary and necessary, though there will be significant overlap. In the case at bar, as we previously noted, the Master disallowed over two-thirds of Robert's claimed business expenses. In so doing, the Master deferred to Judith's testimony at hearing and accepted her objections in toto. As the Master stated in his report: Then [Judith] took his claimed business expenses for that eight month period and did her own review of their applicability. Her testimony went through each of his claimed expenses. Her testimony was convincing that his claim of $10,334.98 in business expenses for the eight month period was excessive. She was persuasive that only $3,315.62 of his claimed business expenses would be applicable to the child support computation. Judith's "review" of Robert's claimed expenses consisted of an analysis of Robert's banking records as well as the underlying components of each expense item. Some of her assertions were supported. She noted that Robert claimed $179 for dues and publications expenses, which included a subscription to "Surfer Magazine," and that Robert claimed hundreds of dollars for "professional" expenses that actually consisted of a debt for legal services stemming from his personal bankruptcy. However, most of Judith's assertions amounted to little more than her unsubstantiated opinion as to what constituted a valid expense. For instance, she testified that Robert's claimed rental expense of $3,552.50 should not be allowed "because that is not an allowable expense for self-employed people who work out of their home." Judith "disallowed" Robert's claimed expenses for repairs and maintenance as well as his utility expenses on the same grounds. As for expenses related to Robert's vehicle, the Master endorsed Judith's seemingly arbitrary claim that only one-half of such expenses should be allowed since Robert also uses his vehicle for personal use. On this record, it is clear that the Master erred. For reasons discussed above, Robert's expenses, insofar as they were ordinary and necessary, should be allowed under Rule 90.3. Though deductions for a "home office" should be subject to scrutiny, they should not be categorically disallowed. Accordingly, to disallow all deductions for rent, utilities, and repairs, when the record clearly indicates that such expenses occurred and were necessary, is error. Unlike Coghill, there is no evidence here that Robert's claimed rental and vehicle related expenses would have been incurred in any event. In fact, the only evidence presented indicates that these expenses would have been avoided but for Robert's income producing activities. The basis for holding that Robert is entitled to a rental deduction for his "home office" is not that the IRS recognizes such a deduction. Instead, the basis is that the record clearly demonstrates that his allocated rental expense is ordinary, necessary, and reasonably calculated. Similarly, the Master's adoption of Judith's arbitrary allotment of 50% of Robert's vehicle expenses, in light of the evidence to the contrary, is in error. Accordingly, Robert's rent and vehicle related expenses should be held to be deductible. In addition to erroneously determining Robert's allowed business expenses, the Master erred in his allocation of taxes under Rule 90.3(a)(1)(A), which states: (1) Adjusted annual income as used in this rule means the parent's total income from all sources minus: (A) mandatory deductions such as federal income tax, social security tax, mandatory retirement deductions and mandatory union dues. In short, the Master made two additional errors: (1) he computed Robert's social security tax at 7.65%, though the rate for self-employed persons is 15.3%; (2) he failed to consider Robert's State of California income taxes, an expense no less mandatory than the others listed in Rule 90.3(a)(1)(A). Finally, Robert also claims that the Master erred in computing the income side of his support calculation. Specifically, he argues that it was error for the Master to project his income for eight months of 1993 for the whole year, since he earns less money from September to December. Though Robert did present some evidence that the basis for the Master's projection was flawed, we conclude that the Master's proration of Robert's income was not clearly erroneous and it does not reflect an abuse of discretion. See, e.g., Coghill, 836 P.2d at 926 ("the superior court properly exercised its discretion and, on the basis of the most complete evidence before it, chose the best indicator of [appellant's] future earning capacity"); Renfro v. Renfro, 848 P.2d 830, 833 (Alaska 1993) ("This court has approved of an averaging approach when a parent's future earnings are uncertain."). V. CONCLUSION The superior court properly denied Robert's Civil Rule 60(b) motion for relief from the superior court's order dated September 29, 1990. However, in granting Judith's cross motion for modification of child support under Civil Rule 90.3, the superior court erred in adopting the Master's report since the Master's underlying factual findings concerning Robert's business and tax deductions are clearly erroneous. Accordingly, the superior court is AFFIRMED in part and REVERSED in part. The superior court's modification order dated January 7, 1994 is VACATED and REMANDED for proceedings consistent with this opinion. . We review the superior court's denial of Robert's motion for Rule 60(b) relief for an abuse of discretion, which exists if we are "left with the definite and firm conviction on the whole record that the trial judge has made a mistake." Gregor v. Hodges, 612 P.2d 1008, 1010 (Alaska 1980) (citation omitted). . Alaska Civil Rule 60(b) provides in part: On motion and upon such terms as are just, the court may relieve a party . from a[n] . order . 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. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the date of notice of the judgment or orders as defined in Civil Rule 58.1(c). . Civil Rule 53(d)(2) provides that the superior court "shall accept the master's [factual] findings unless clearly erroneous." However, the master's conclusions of law and recommendations are not controlling, and the superior court is free to disregard them. Headlough v. Headlough, 639 P.2d 1010, 1012 (Alaska 1982). Also, "[c]hild support determinations are within the broad discretion of the trial court and will only-be reversed when we are left with a definite and firm conviction that a mistake has been made." Zimin v. Zimin, 837 P.2d 118, 123 n. 8 (Alaska 1992) (citation omitted). . "While this court has not officially adopted or approved the commentary, [it has] relied on it for guidance in determining adjusted annual income for self-employed parents." Eagley v. Eagley, 849 P.2d 777, 779 (Alaska 1993). . As one commentator has stated, "when determining which business deductions to allow for the purposes of determining child support, a court is not bound by the tax laws." 2 Jeff Atkinson, Modern Child Custody Practice § 10.23, at 525 (1986). Similarly, as the Delaware Supreme Court held: [S]omc aspects of the tax laws are designed to encourage the growth in business enterprises, whereas the child support laws are necessarily concerned with the welfare of the children. When the two approaches to net income conflict, the Family Court is free to depart from tax law accounting, but in doing so the court must show that the departure is reasonable and fair and practical under all the circumstances. R.T. v. R.T., 494 A.2d 150, 154-55 (Del. 1985); see also Otte v. Otte, 368 N.W.2d 293, 297 (Minn. App.1985). .Concerning his work at home, Robert testified: I do all my work out of the home.... I've been in three locations to work . and every one of them, the reason I moved into them to begin with was so that I had room to set up an office. My office is exclusively used for work. My customers come here. The place I just moved into, I had extensive remodeling work done so that I have a place where my clients can come and visit. It is based on the square footage of the office compared to the total square footage of the house. Otherwise, I would be paying rent somewhere else to have an office. I wouldn't be able to work without a separate area to work. I wouldn't be able to earn income. (Emphasis added.) . Again, Robert's testimony is telling: The truck was based on my actual business mileage, and I took 69% of all vehicle expenses, including the interest. Prior to owning the truck, I took the standard deduction based on the mileage. . As one commentator has stated: The deduction of depreciation and other business expenses is a common issue when a par ent owns a closely held company. Like salary, business expenses can be manipulated to affect net income, and some business deductions may have a minimal effect on the business owner's cash flow. 2 Atkinson, § 10.23, at 525. . In Nass v. Seaton, 904 P.2d 412 (Alaska 1995), we said: In Eagley we rejected the commentary's categorical disallowance of all depreciation of real estate, and held that straightline depreciation of business real estate was appropriate. Eag-ley thus requires reversal of the superior court's disallowance of straightline depreciation for that portion of the residence which Fred used in his machinery business. This aspect of the appeal is therefore reversed and remanded with instructions to calculate straightline depreciation limited to the areas of the residence that are in fact used in the conduct of Fred's machinery business. Id.' at 417. Robert's disallowed rent and vehicle expenses were calculated in conformity with this court's directive in Nass. . Specifically, Robert's rent ($3,553), insurance ($87), repair ($144), utility ($205), and vehicle ($502) expenses were improperly disallowed. Also improperly disallowed is $50 in professional dues that Judith acknowledged at hearing as being legitimate, but nonetheless were disallowed by the Master. Thus, Robert's improperly disallowed deductions total $4,541. As for his other disallowed expenses (totaling $2,529), Judith did present evidence which arguably supports the Master's otherwise cursory findings; that is, the Master's findings regarding these expenses are not clearly erroneous. .In his motion to file an Erratum and Addendum, Robert states: The "addendum" part is added to show the factual errors made by the master in calculating Mr. Neilson's gross income, and while those errors did not use his incorrect analysis of Mr. Neilson's gross income directly in recommending an increased child support obligation, Mr. Neilson believes that incorrect analysis and resulting repeated suggestions that Mr. Neilson was less than credible affected the master's blind acceptance of the former Mrs. Neilson's disallowance of deductions from Mr. Neilson's gross income [sic]. Thus, Robert's principal concern was not that the Master erred in analyzing his proffered income information, but rather that the Master's errors led it to conclude that Robert was not credible, and thus served as the basis for disallowing his claimed expenses. However, any concerns on Robert's part have been addressed since, as discussed above, it has been shown that the Master improperly disallowed some of his expenses. . Given this disposition, Robert's contention that the superior court improperly denied his Motion to File Erratum and Addendum to Objections to Master's Report, and for Order Rejecting Master's Report and Granting Evidentiary Hearing is rendered moot. Similarly, Robert's other listed points on appeal are either moot, meritless, or have been expressly waived.

9399164

UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant, v. Sean PRUITT by and through Glenn PRUITT, Appellee

United Services Automobile Ass'n v. Pruitt ex rel. Pruitt

2001-12-28

No. S-9571

528

535

38 P.3d 528

38

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T19:39:17.831913+00:00

CAP

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

UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant, v. Sean PRUITT by and through Glenn PRUITT, Appellee.

UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant, v. Sean PRUITT by and through Glenn PRUITT, Appellee. No. S-9571. Supreme Court of Alaska. Dec. 28, 2001. Kenneth M. Gutsch, Richmond & Quinn, Anchorage, for Appellant. Michaela Kelley Canterbury, Kelley & Kelley, Anchorage, for Appellee. Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

3599

21843

OPINION MATTHEWS, Justice. I. INTRODUCTION The superior court bifurcated this case, addressing separately the coverage and damages issues before it, and eventually awarded separate attorney's fees for each part. The questions presented are whether separate awards were appropriate and whether the amounts awarded were justified. We answer the first question in the affirmative, but vacate the award as to one part of the case because the court did not explain its reasons for deviating from the presumptive award prescribed by Alaska Civil Rule 82(b)(1). II. FACTS AND PROCEEDINGS Sean Pruitt ("Pruitt") was injured while riding as a passenger in a car driven by his older brother Gabriel. Gabriel had insurance coverage with United Services Automobile Association ("USAA"). Pruitt sued Gabriel. Soon thereafter USAA denied coverage, based on the policy's family member exelusion provision. Gabriel eventually confessed judgment for $229,535 in favor of Pruitt and assigned his rights against USAA to Pruitt. Pruitt then sued USAA for the amount of the judgment and for damages for bad faith denial of coverage. Following cross-motions for summary judgment on the issue of the enforceability of the family exclusion, Superi- or Court Judge John Reese found in favor of Pruitt, holding that the exelusion was invalid. A two-day settlement conference followed at which the parties agreed to bifurcate the coverage issue from Pruitt's claim for damages. The parties agreed that "Judgment [would] be entered in favor of [Pruitt] on the exclusion issue, after which [Pruitt] may request costs and fees as prescribed by the rules." To facilitate the application for costs and fees, the parties agreed that "[wlithin 14 days of this date, [Pruitt] will provide a breakdown of costs and fees between the two bifurcated parts of the case." The parties also agreed that the bad faith claim against USAA would be abandoned, that the confessed judgment against Gabriel would be vacated, and that Pruitt's "injury claims" would be arbitrated. The agreement was memorialized in an order issued by Judge Reese. A week later Pruitt moved for attorney's fees and costs, accompanying the motion with a listing of hours and costs expended. USAA opposed the motion, arguing that Pruitt's request for attorney's fees was premature and that the submittal did not provide the required breakdown between the two portions of the case. Before the court ruled on the motion, the arbitration took place. The panel found Gabriel to be 100% at fault and awarded Pruitt damages for his injuries of $47,975. Issues of interest, costs, and attorney's fees were left to the trial court. Following the arbitration, Pruitt moved for "enhanced" attorney's fees for the arbitration. USAA opposed this motion in what it called a "Supplement to USAA's Opposition to Plaintiff's Motion for Attorneys Fees." USAA argued that the court "should apply the 'contested with trial (20% for the first $25,000 and 10% for the next $75,000 awarded thereafter) schedule of Civil Rule 82(b)(1) to plaintiff's arbitration award (after addition of prejudgment interest on the past damages of $27,575) as the appropriate barometer for plaintiff's pending motion for fees and costs." USAA also filed an additional memorandum that opposed both motions for attorney's fees. In this memorandum USAA asked that the motions be treated as consolidated "to avoid duplicative fees" and that the "arbitration award should be the gauge for the court's Rule 82 award." The superior court then ruled on both pending motions for attorney's fees. With regard to what the court referred to as the "Declaratory Judgment action" concerning coverage, the court - awarded - Pruitt $48,468.75. The court noted that it was not following Rule 82(b)@)'s 20% of actual fees guideline, and held that "under the totality of the circumstances," an award of 75% of Pruitt's "actual fees incurred," $63,825, was reasonable. The court explained: "In this case, the issue was of substantial importance to defendant and was vigorously defended by it. The issues were unique and plaintiffs efforts were effective, efficient and although driven by economic motive, also had broad beneficial effect for the public." With regard to the "(Wiability/damages action (submitted to arbitration by agreement)" the court declared, without specifying a figure, that "[to the arbitration award of $47,975.00 must be added prejudgment interest and Civil Rule 82(a) fees, contested with trial." USAA moved for reconsideration of this ruling. The court denied the motion, reaffirmed the fee award of $48,468.75 for the coverage litigation, added prejudgment interest to the arbitration award, and awarded attorney's fees of $16,407.00 for the arbitration aspect of the litigation. III DISCUSSION A. - Standard of Review Review of an award of attorney's fees is conducted under an "abuse of discretion" standard. The trial court has broad discretion in awarding attorney's fees; [this court] will not find an abuse of that discretion absent a showing that the award was arbitrary, capricious, manifestly unreasonable, or stemmed from an improper motive." The interpretation of the civil rules is 'a question of law and is subject to de novo review B. The Superior Court Did Not Abuse Its Discretion by Awarding Attorney's Fees for the Arbitration Portion of the Case. 1. The settlement agreement did not preclude attorney's fees for the arbitration. USAA argues that the trial court inappropriately awarded attorney's fees for the arbitration because the grant was contrary to the settlement agreement. In the order memorializing the settlement agreement, the case was split into two parts: (1) coverage and (2) the claim for damages. USAA argues that because the memorializing order addressed attorney's fees solely with respect to the coverage aspect of the case, the court erred when it awarded attorney's fees for the arbitrated claim for damages. USAA contends that the order "contemplated that there would be only one attorney's fee award in connection with the fees and costs relating to the family exclusion issue." Pruitt responds that [there was nothing in the Order which indicated in any way that [Pruitt] would be precluded from applying for attorney's fees with respect to his actual damages in this case, and, in point of fact, the wording of the Order implied that the trial court would be considering other attorney's fees and costs incurred at a later date. That the court asked for a "breakdown of costs and fees between the two bifurcated parts of the case" shows, according to Pruitt, that the court contemplated awarding attorney's fees for both parts of the case. We believe that Pruitt has the better of this argument. The order reiterated the parties' agreement that "[Jjudgment [would] be entered in favor of [Pruitt] on the exelusion issue, after which [Pruitt] may request costs and fees as prescribed by the rules." Its silence on the issue of attorney's fees for the subsequent arbitration on the injury claim is not evidence of an agreement that such fees were precluded. Additionally, and most compellingly, the lawyer for USAA stated at the oral argument on attorney's fees that "the idea [at the time of the settlement] was to bifurcate one out from the other, that is, award attorney's fees separately." Hence, the court did not err in declining to hold that the agreement precluded attorney's fees for the arbitration portion of the case. 2. The superior court did not err by applying Rule 82 to the arbitration. USAA also contends that the superior court erred because Civil Rule 82 does not apply to arbitrations. Civil Rule 82 provides for an award of attorney's fees to the "prevailing party in a civil case," not, USAA argues, in arbitration. Pruitt calls attention to the fact that "USAA itself expressly requested the trial court to apply [Rule 82] to [Pruitt's] arbitration award . as the appropriate barometer for [Pruitt's] pending motion for fees and costs." Pruitt argues that because USAA requested that the trial court apply Rule 82 to the arbitration award, USAA may not now contend that this was error. This argument would be conclusive except that, in context, it appears that USAA was arguing for a single award of attorney's fees for both aspects of the case. The single award would be measured by the amount of the arbitration award applying the percentage of recovery schedule of Civil Rule 82(b)(1). While USAA is not barred by its memo-randa in opposition to the motion for attorney's fees from arguing that no separate award is appropriate, its admission at oral argument before the superior court that at the time of the settlement agreement the parties contemplated that the issues would be bifurcated and the court would "award attorney's fees separately" does have a pre-clusive effect. This admission resolves the ambiguity that exists in the order memorializing the settlement agreement as to whether there would also be a fee award for the arbitration aspect of the bifurcated case. Further, our decision in Harold's Trucking v. Kelsey permits court-awarded attorney's fees based on arbitration awards where the arbitration is court-ordered, so long as the action is not filed needlessly in order to obtain attorney's fees. The present case readily falls within the rule established by Harold's Trucking. 3. The superior court did not abuse its discretion by issuing two awards in the same case. USAA also argues that compelling policy reasons exist prohibiting issuing two attorney's fees awards in the same action. First, "issuing two awards in the same action . risks double recovery." USAA contends that the court might have included work done for the arbitration in the award for the exclusion litigation. - Secondly,; "the trial court could have applied two separate standards. The court could have applied Rule 82(b)(1) (applying to money judgments) to the arbitration and Rule 82(b)(2) (applying to non-money judgments) in calculating the two different awards." Pruitt responds that the "breakdown requested by the trial court was designed to preclude 'double recovery' in this case and there is no evidence indicating that such design was not carried out." Pruitt also acknowledges that the court used different standards for the two awards-82(b)(1) for the arbitration award and 82(b)(2) for the exelusion issue. But he sees no problem with this for "Rule 82(b)(8) permits enhancement of either a(b)(1) or a(b)(2) award...." We believe that there are no general reasons of policy why a case, onee bifurcated, could not support two separate fee awards. Care should be taken not to award fees twice for the same work, but such duplication should be avoidable. The fact that different standards may be used in awarding fees for different portions of a case involves no principle that should act as a bar. Here, once the case was, in effect, converted into two cases, it was logical that the coverage adjudication would be governed by Rule 82(b)(2), for the judgment was a declaration of coverage, not a money judgment. Likewise, the arbitration award was logically governed by subsection (b)(1) of the rule because a money award was made. 4. The superior court erred when it failed to explain why it deviated from the Rule 82(b)(1) fee schedule with respect to fees for the arbitration. USAA argues that the court erred because (1) it failed to calculate what the fee award would have been for the arbitration under Civil Rule 82(b)(1) before it deviated from that schedule and (2) it failed to explain why it deviated from the schedule. These arguments have merit. We held in State v. Johnson that before deviating from scheduled fees, courts should first calculate the authorized award and then give their reasons for deviating from the authorized award. Here the court ruled that the total arbitration award on which fees would be based was $54,691, including prejudgment interest. The court indicated that the contested-with-trial schedule of subsection (b)(1) should be used. Thus the scheduled award should have been $7,969.10. But the court awarded $16,407. Rule 82(b)(8) permits a court to deviate from the guidelines of subsection (b)(1) or (2) if the court determines that deviation is warranted by the factors listed in subsections (b)B)(A)-(K). But the rule requires that "if the court varies an award, the court shall explain the reasons for the variation." Here the court gave no explanation. A remand is therefore required. On remand the court should either state its reasons for deviating from the scheduled fees or change the fee award so that it is in accordance with the schedule. C. The Superior Court Did Not Abuse Its Discretion When It Awarded Attorney's Fees for the Coverage Litigation. 1. It was not error to award attorney's fees based on Pruitt's attorney's submissions rather than on actual fees paid or owed by Pruitt. USAA contends that the award of $48,468.75 in attorney's fees for the coverage litigation was error because "such award was not based on fees actually and necessarily incurred by Sean Pruitt," as required by Rule 82(b)(2). According to USAA the fees were based "only on Mr. Pruitt's counsel's evaluation of his services in terms of the number of hours spent on the case and an hourly rate which Mr. Pruitt was not charged." USAA argues: There was no attestation that Sean Pruitt actually and necessarily incurred the fees requested. Mr. Pruitt has never denied that he was on a contingency fee agreement. He was not offered any copies of billing statements nor a copy of the retainer agreement to show that the fees were actually incurred. Hence, if Pruitt agreed to a one-third contingency agreement with his attorney, USAA contends that Pruitt received a fee more than three times greater than what he actually would pay his lawyer. USAA argues that Municipality of Anchorage v. Gentile stands for the principle that "[alwarding an enhanced fee, i.e., an amount more than the party agreed to pay its attorney, is fundamentally contrary to the purposes behind Rule 82. ." The superior court considered these points in USAA's motion for reconsideration, but rejected them. The court noted that "[hJourly compensation is the currency of attorney fees calculations under Civil Rule 82(b). Whether plaintiff had a contingency fee, or an agreement to charge no fee, is irrelevant. Such matters are within the attorney client relationship and not subject to review by an adverse party." In our view the trial court did not err in calculating what Pruitt's reasonable fees would have been based on the time expended by his attorney multiplied by the attorney's typical hourly rate even though actual fees may have been charged on a contingent basis. We have rejected arguments that Rule 82 awards based on attorney's time multiplied by a reasonable hourly rate are impermissible because the attorney's services were free to the client or because the client actually paid a fee different from the fee as so calculated. For example in (Gregory v. Sauser we held that Rule 82 fees should not be denied to a prevailing party who was receiving free legal services." 'We stated that it was "untenable" to deny a Rule 82 award "based on whether the client has an obligation to pay for the legal services rendered. - Fairbanks Correctional Center Inmates v. Williamson is in accord. There we said, "the fact that plaintiffs were not liable for their attorney's fees is irrelevant to an award of fees otherwise proper under Alaska Rule of Civil Procedure 82." Similarly, we have upheld fee awards based on an hours/rate measure to attorneys who represented themselves. Thus in Doyle v. Peo-body we held that the superior court did not err in valuing a self-represented attorney's services at $7,500 (75 hours of time multiplied by an hourly rate of $100) for Rule 82 purposes. The superior court's ruling in the present case followed the principle established by the cases discussed above that Rule 82 fees, except when based on a money judgment, should be measured by the reasonable value of the attorney's services, not what the client actually pays. It was therefore not erroneous. 2. The superior court's explanation concerning the award for the coverage portion of the case was adequate. With regard to the award concerning the coverage aspect of this case, USAA argues that the trial court's explanation for awarding 75% of actual fees was insufficient to meet Rule 82(b)(3)'s requirement that trial courts explain their reasons for deviating from Rule 82's presumptive awards. This court has held that "[iln general, a trial court has broad discretion to award Rule 82 attorney's fees in amounts exceeding those prescribed by the schedule of the rule, so long as the court specifies in the record its reasons for departing from the schedule." In this case, the court explained its rationale for deviating from the rule's schedule: In this case, the issue was of substantial importance to defendant and was vigorously defended by it. The issues were unique and plaintiffs efforts were effective, efficient and although driven by economic motive, also had broad beneficial effect for the public. These reasons readily fall within some of the reasons for deviation that the rule contemplates. The court's explanation relates to "the complexity of the litigation;" " "the reasonableness of the attorneys' hourly rates and the number of hours expended;" "the relationship between the amount of work performed and the significance of the matters at stake;" " and "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." We conclude that it meets the requirements of Rule 82(b)(3). IV. CONCLUSION Because the parties' settlement contemplated that attorney's fees would be awarded in both bifurcated portions of the case, and because fees may be awarded in cases of court-ordered arbitration, we hold that it was not error to grant prevailing party attorney's fees in both portions of the case. But because the superior court failed to explain its reasons for exceeding the Rule 82 schedule with regard to the arbitration award, we VACATE that award and REMAND this case so that the court may either reinstate the award with an appropriate explanation or enter an award that conforms to the schedule. Because no error was committed with respect to the award for the coverage portion of the case, we AFFIRM that award. . Alaska Wildlife Alliance v. Rue, 948 P.2d 976, 981 (Alaska 1997). . - Power Constructors, Inc. v. Taylor & Hintze, 960 P.2d 20, 44 (Alaska 1998). . D.L.M. v. M.W., 941 P.2d 900, 902 n. 2 (Alaska 1997). . - Alaska R. Civ. P. 82(a) (emphasis added). . 584 P.2d 1128, 1130 (Alaska 1978). . Integrated Resources Equity Corp. v. Fairbanks North Star Borough, 799 P.2d 295 (Alaska 1990), and Alaska State Housing Authority v. Riley Pleas, Inc., 586 P.2d 1244 (Alaska 1978), relied on by USAA, are not to the contrary, for these cases hold that when arbitrations are not court-ordered, attorney's fees may be awarded for confirmation and post-confirmation proceedings conducted in court, but not for fees incurred in arbitration. . This is especially so where the bifurcated portions are often litigated in separate actions. That is the case here, for liability and damage claims against a tortfeasor and questions of the tortfea-sor's insurance coverage are often litigated in separate actions. See, eg., C.P. v. Allstate Ins. Co., 996 P.2d 1216 (Alaska 2000); Bohna v. Hughes, Thorsness, 828 P.2d 745 (Alaska 1992); Continental Ins. Co. v. Bayless & Roberts, Inc., 608 P.2d 281, 283 (Alaska 1980). Indeed, this case originated as two actions, but the parties agreed that the result of the earlier case, Pruitt v. Gabriel Pruitt, would be vacated and that the case would be re-litigated in arbitration under the auspices of the court in the later litigation. . 958 P.2d 440, 446 (Alaska 1998). . 922 P.2d 248, 264 (Alaska 1996). . 574 P.2d 445 (Alaska 1978). . Id. at 445. . 600 P.2d 743 (Alaska 1979). . Id. at 746. See also City & Borough of Sitka v. Swanner, 649 P.2d 940, 947 (Alaska 1982), where in the context of a fee award under 42 U.S.C. § 1988 we warned against an erroneous focus on the compensation counsel will receive . rather than on the reasonable value of the legal services rendered. The courts have recognized the social utility of a contingent fee as a means of giving those without funds an opportunity for legal counsel equal to those who can pay at the hourly rate. . 781 P.2d 957, 962-63 (Alaska 1989). Municipality of Anchorage v. Gentile, 922 P.2d 248 (Alaska 1996), relied on by USAA, is not to the contrary. There we observed that Rule 82 "cannot ordinarily be used to award a prevailing party an amount larger than the party has agreed to pay its attorneys." Id. at 263. But we added in a footnote keyed to this statement: "In cases where the atiorney charges no fee or a lower than usual fee, however, the proper approach is to value the attorney's services and to make a Rule 82 award which is some fraction of this value." Id. at 263 n. 20. . State v. Johnson, 958 P.2d 440, 445 n. 10 (Alaska 1998). . - Alaska R. Civ. P. 82(b)(3)(A). . Alaska R. Civ. P. 82(b)(3)(D). . Alaska R. Civ. P. 82(b)(3)(H). . Alaska R. Civ. P. 82(b)(3)(J).

10421780

Abdulkarim ABDULBAQUI, Appellant, v. STATE of Alaska, Appellee; Trent L. CHAPIN, Appellant, v. STATE of Alaska, Appellee

Abdulbaqui v. State

1986-12-05

Nos. A-1297, A-1379

1211

1220

728 P.2d 1211

728

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:24:54.184555+00:00

CAP

Before COATS and SINGLETON, JJ., and MATTHEWS, Supreme Court Justice.

Abdulkarim ABDULBAQUI, Appellant, v. STATE of Alaska, Appellee. Trent L. CHAPIN, Appellant, v. STATE of Alaska, Appellee.

Abdulkarim ABDULBAQUI, Appellant, v. STATE of Alaska, Appellee. Trent L. CHAPIN, Appellant, v. STATE of Alaska, Appellee. Nos. A-1297, A-1379. Court of Appeals of Alaska. Dec. 5, 1986. James M. Hackett, Fairbanks, for appellant Abdulkarim Abdulbaqui. Robert M. Beconvich, Fairbanks, for appellant Trent L. Chapin. John A. Scukanec, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Harold M. Brown, Atty. Gen., Juneau, for appellee. Before COATS and SINGLETON, JJ., and MATTHEWS, Supreme Court Justice. Sitting by assignment made pursuant to article IV, section 16 of the Constitution of Alaska.

4817

29240

OPINION MATTHEWS, Justice. This is a consolidated appeal of convictions and sentences of two co-defendants, Abdulkarim Abdulbaqui and Trent L. Cha-pin. Abdulbaqui and Chapin were tried together in a joint jury trial and were both found guilty of first-degree robbery. The convictions related to the April 27, 1985 robbery of the D & H Liquor Store near Fairbanks, Alaska. FACTS Angela Kirchner was working as a clerk at the D & H Liquor Store on the night of April 27, 1985, when two men wearing ski masks entered the store. One of the men, a white man, approached the counter, pointed a gun at Kirchner, and told her to open the cash register. Kirchner pulled the drawer out and set it on the counter, and the man with the gun took the money out of the drawer. While this was happening, the other man, a black man, was standing by the door. After taking the money, the man with the gun told Kirchner to get on the floor, which she did, and the two men left. After the two men left, Kirchner called her boyfriend, Jimmy Zirger, who lived nearby, and the state troopers. Zirger quickly armed himself, obtained a general description of the robbers, and left in pursuit of them. Zirger apprehended two men, Abdulkarim Abdulbaqui, who is black, and Trent Chapin, who is white, down the road from the liquor store. Zirger took a gun from the white man and noted that the men had ski masks. While herding the men back to the liquor store, Zirger met the state troopers and turned the men over to them. The troopers brought the two men back to the liquor store so that Kirchner could identify them, but she was unable to. When Abdulbaqui and Chapin were searched, $97 was found in Chapin's coat pocket and a loaded .22 pistol was found in Abdulbaqui's pant leg. It was estimated that $96.85 was stolen from the liquor store. Chapin subsequently admitted to a trooper that he had committed the robbery. It was also found that footprints outside the liquor store matched the patterns on Chapin's and Abdulbaqui's shoes. During the trial, Abdulbaqui did not testify; thus he did not deny his presence at the robbery scene. His attorney argued that he was an observer rather than a participant in the crime. Chapin's defense was in the nature of a general denial. DISCUSSION (A) ABDULBAQUI'S POINTS ON APPEAL Abdulbaqui initially argues that the court erred in not granting Abdulbaqui's Motion For Judgment of Acquittal because fair-minded persons would have to agree that the state failed to prove beyond a reasonable doubt that Abdulbaqui aided in the armed robbery or that Abdulbaqui had the requisite criminal intent. A motion for judgment of acquittal must be denied unless fair-minded jurors would necessarily agree that the state had failed to carry its burden of proof beyond a reasonable doubt. Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Brown v. State, 693 P.2d 324, 328 (Alaska App.1984). The superior court, in determining the question, and the court of appeals, on review, must view the evidence and all inferences therefrom in the light most favorable to the state. Dorman v. State, 622 P.2d at 453; Maloney v. State, 667 P.2d 1258, 1267 (Alaska App.1983). The evidence showed that Abdulba-qui entered the liquor store, wearing a ski mask, with Chapin, who was also wearing a ski mask. It was springtime and the temperature was relatively warm. Abdulbaqui stayed at the door while Chapin threatened Kirchner with a gun and demanded and obtained money from Kirchner. Abdulba-qui and Chapin subsequently left together. As the state notes, reasonable jurors could have inferred that Abdulbaqui was acting as a lookout. Abdulbaqui did not come to Kirchner's aid and, in fact, could have come to Chapin's aid or prevented others from intervening to aid Kirchner had Kirchner attempted to resist. Thus, because fair-minded jurors would not necessarily have found that the state had failed to carry its burden of proof beyond a reasonable doubt, the motion for acquittal was properly denied. Abdulbaqui next argues that the court erred in not granting Abdulbaqui's request for an instruction on second-degree robbery. For determining whether a lesser-included offense instruction should be given, Alaska has adopted the cognate approach. Elisovsky v. State, 592 P.2d 1221, 1226 (Alaska 1979). Under the cognate approach, a lesser-included offense instruction is required if a two-part test is met: (1) it must be impossible to commit the greater offense without committing the lesser; and (2) the greater offense must require the jury to find a disputed fact that is not required for conviction of the lesser-included offense. Minano v. State, 690 P.2d 28, 31 (Alaska App.1984), reversed on other grounds, 710 P.2d 1013, 1016 (Alaska 1985); Wilson v. State, 670 P.2d 1149, 1151 (Alaska App. 1983). In the present case, Abdulbaqui was charged with first-degree robbery and requested an instruction for second-degree robbery as a lesser-included offense. AS 11.41.500(a) outlines the elements of first-degree robbery: A person commits the crime of robbery in the first degree if the person violates AS 11.41.510 and, in the course of violating that section or in immediate flight thereafter, that person or another participant (1) is armed with a deadly weapon or represents by words or other conduct that either that person or another participant is so armed; (2) uses or attempts to use a dangerous instrument or represents by words or other conduct that either that person or another participant is armed with a dangerous instrument; or (3) causes or attempts to cause serious physical injury to any person. AS 11.41.510(a) outlines the elements for second-degree robbery: A person commits the crime of robbery in the second degree if, in the course of taking or attempting to take property from the immediate presence and control of another, the person uses or threatens the immediate use of force upon any person with intent to (1) prevent or overcome resistance to the taking of the property or the retention of the property after taking; or (2) compel any person to deliver the property or engage in other conduct which might aid in the taking of the property. The first part of the cognate approach test is met here: it is impossible to commit first-degree robbery without also committing second-degree robbery because AS 11.41.500(a) defines first-degree robbery to require a violation of AS 11.41.510, second-degree robbery. The second test is not met, however. Were it a disputed fact that a deadly weapon was used, second-degree robbery would properly be a lesser-included offense, and the court would have been required to give a lesser-included offense instruction. The fact that a deadly weapon was used is not disputed, however. Judge Greene refused to give the instruction on this basis. As the state notes, since the presence of the weapon was undisputed, the only issue was whether Abdulbaqui participated in the robbery. The jury had to convict Ab-dulbaqui of first-degree robbery if it found that he had participated, or had to find him innocent of all wrongdoing if it found that Abdulbaqui had not participated. The Alaska Supreme Court has previously considered the question in a factually analogous situation in Rice v. State, 589 P.2d 419 (Alaska 1979). In Rice, the defendant, who was charged with first-degree robbery, requested an instruction on second-degree robbery as a lesser-included offense. While it was undisputed that a firearm was used in the robbery, Rice asserted that a second-degree robbery instruction should be given because Rice's partner in the robbery was the only one to have control over the gun. The court rejected that contention on the basis that Alaska had abolished the common law distinction between accessories and principals to a crime. 589 P.2d at 420. The analysis and conclusion of Rice are applicable to the present case. Abdulba-qui's contention that he should have been given an instruction on second-degree robbery as a lesser-included offense because he himself was not brandishing the weapon must be rejected. Abdulbaqui next argues that the sentencing court erred in denying two of his requested mitigating factors pursuant to AS 12.55.155(d)(2) (the defendant, although an accomplice, played only a minor role in the commission of the offense), and AS 12.55.-155(d)(9) (the conduct constituting the offense was among the least serious conduct included in the definition of the offense). Abdulbaqui asserts that the two mitigating factors apply because, during the robbery, Abdulbaqui merely wore a ski. mask and stood passively in the store while Chapin robbed Kirchner. Judge Greene found by clear and convincing evidence that Abdulbaqui was present at the robbery as a lookout, based on his position near the door, and was a principal of the offense. On this basis, she rejected Abdulbaqui's assertion that he was only an accomplice who played only a minor role in the commission of the crime. The record supports the inference that Ab-dulbaqui acted as a lookout for the robbery. We think that Judge Greene did not err in concluding on the facts of this case that the role of lookout should not be considered a more minor role than the role of the actual robber. The lookout serves to facilitate the crime by warning of the approach of others and by being ready to aid the person who is actually taking the money by either getting the money or by subduing the victim. Judge Greene also found that Ab-dulbaqui had failed to prove by clear and convincing evidence that the conduct constituting the offense was among the least serious conduct. Judge Greene found that, considering the totality of the circumstances, the conduct constituting the offense was within the mid-range of armed robbery behavior. Based on these facts, we think Judge Greene's conclusion was not erroneous. Therefore, we hold that Judge Greene was not clearly erroneous in rejecting Abdulbaqui's mitigating factors. See Juneby v. State, 641 P.2d 823, 834 (Alaska App.1982), aff'd in relevant part on rehearing, 665 P.2d 30 (Alaska App. 1983). Abdulbaqui next argues that, even if Ab-dulbaqui had possessed a gun during the robbery, because Abdulbaqui did not himself display a weapon during the robbery, the court erred in finding the aggravating factor that Abdulbaqui had employed a dangerous instrument in furtherance of the offense. Judge Greene found, in aggravation of his offense, that Abdulbaqui had employed a dangerous instrument in furtherance of the offense. AS 12.55.155(c)(4). She found this aggravating factor in spite of the fact that Abdulbaqui had not personally displayed a weapon during the robbery itself, because a gun was later found on Abdulbaqui's person, and Judge Greene believed by clear and convincing evidence that Abdulbaqui had possessed it while inside. The state concedes that AS 12.55.-155(c)(4) does not apply in the present case but argues that, though found in error, the error was harmless because the judge gave little weight to the factor. The court must independently analyze an issue, even when the state concedes a legal point. Marks v. State, 496 P.2d 66, 67 (Alaska 1972). Mere possession of a dangerous instrument does not satisfy the requirements of AS 12.55.155(c)(4). Linn v. State, 658 P.2d 150, 153-54 (Alaska App. 1983) (use of an ax merely to gain entry and not to threaten people did not constitute employment of a dangerous instrument in furtherance of the offense). Thus, Judge Greene was clearly erroneous in finding the aggravating factor. See Juneby v. State, 641 P.2d at 834. Because Judge Greene did improperly find the aggravating factor based on possession of the gun, it appears that the state's concession is well-founded. While the state argues that Judge Greene did not give much weight to the fact that Abdulbaqui possessed the gun, it is clear she gave some weight to it, and it is clear that this factor and another aggravating factor found because Abdulbaqui committed the robbery while on probation constituted the basis for the additional suspended three-year sentence: The two aggravating factors that I found, I think I would be remiss if I didn't increase the sentence to some extent because of those. . I think that when one commits a crime, another serious crime while on probation, it is a lot more serious. I think it speaks very poorly of rehabilitation potential. I think that in your case, Mr. Abdulbaqui I need to balance that against what you proved to me while you were out on your own recognizance, pretrial. In balancing that and considering the other Chaney criteria, I don't believe that I should adjust the period of actual time in custody. I think that it's sufficient to increase the sentence and suspend that period of time based on that aggravating factor. With respect to the dangerous instrument that was employed, I also take into account the fact that that loaded .22 pistol was never displayed to anyone. I take into account the fact that at least at the point that it was discovered on your person, it was basically in a spot where it couldn't be used. I suspect that you'd had it in a usable point — place sometime before you started running. It's the only thing that makes sense. You certainly could have had that gun out and intimidated people in the robbery though. No question in my mind you could have done that. You didn't. I think you deserve some credit for that. So despite the fact that I think there needs to be an increase in the sentence, I don't think there needs to be an increase in the time that you spent in jail as a result of that aggravating factor. Thus, we find it necessary to vacate the suspended three-year sentence and remand to the sentencing court to resentence based only on the other aggravating factor found by Judge Greene, AS 12.55.155(c)(20) (the defendant was on probation for another felony conviction). Abdulbaqui finally contends that the sentencing court erred in not finding extraordinary circumstances and in not referring his case to a three-judge panel. Abdulbaqui's assertions of extraordinary circumstances were based on his financial responsibilities (Abdulbaqui owed $24,000 in medical bills and was responsible for the support of his elderly mother and two children) and on his strict compliance with the terms of the court's order allowing release on his own personal recognizance before trial. If a defendant is subject to presumptive sentencing and if the sentencing court finds by clear and convincing evidence that manifest injustice would result from failure to consider relevant aggravating or mitigating factors not specifically included in AS 12.55.155 or from imposition of the pre sumptive term, the court shall make findings and conclusions and refer the case to a three-judge panel. AS 12.55.165. A sentencing judge must consider the Chaney sentencing criteria in determining the existence of manifest injustice. Lloyd v. State, 672 P.2d 152, 155 n. 3 (Alaska App. 1983). See State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970). Manifest injustice is a subjective standard and, on review, the court of appeals will consider the totality of the circumstances in determining whether the sentencing court erred in not referring the case to a three-judge panel. Lloyd v. State, 672 P.2d at 154, 156. Judge Greene found that Abdulba-qui was a second felony offender convicted of a class A felony and was subject to a presumptive sentence of ten years under AS 12.55.125(c)(3). Judge Greene considered and rejected Abdulbaqui's request for a three-judge panel after considering the Chaney factors. She did not find Ab-dulbaqui's circumstances to be extraordinary. We agree. As the state notes, Ab-dulbaqui did not contend that he was compelled by his financial circumstances to commit the robbery to provide for his family. Considering the totality of the circumstances, it does not appear that the sentencing court erred in not finding extraordinary circumstances. (B) CHAPIN'S POINTS ON APPEAL Chapin initially argues that the trial court erred in failing to dismiss the indictment for the failure of the state to preserve the dispatch tape of the call made by Kirchner to the police. Prior to trial, Cha-pin sought disclosure of the dispatch tape recording of Kirchner's call to the troopers reporting the robbery. Upon learning that the tape containing Kirchner's call had been erased and reused, Chapin moved to dismiss the indictment based on the state's failure to preserve the dispatch tape. At the hearing on the motion, testimony established that the dispatch tape containing the call had been reused on the same day that Chapin's attorney had sent the request. Judge Greene found that the state had violated its obligation to disclose but concluded that no sanctions were required because the tape had been preserved for a reasonable period of time, because Chapin had not been prejudiced, and because the tape's content would have been cumulative. Judge Greene therefore denied the motion to dismiss. In a criminal case, the state has a duty to preserve any evidence which is discoverable by the defendant. This duty attaches once any arm of the state has first gathered and taken possession of the evidence in question. Putnam v. State, 629 P.2d 35, 43 n. 16 (Alaska 1980). The state is under an obligation to make available to the defense evidentiary materia] that must be disclosed under the due process requirements established in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the requirements of Alaska Rule of Criminal Procedure 16, or Alaska Statute 12.45.060. Putnam v. State, 629 P.2d at 43. Brady requires the state to disclose evidence favorable to the defendant. 373 U.S. at 87, 83 S.Ct. at 1196-97, 10 L.Ed.2d at 218. Alaska Rule of Criminal Procedure 16(b)(l)(i) requires the state to disclose to the defendant: (i) The names and addresses of persons known by the government to have knowledge of relevant facts and their written or recorded statements or summaries of statements. AS 12.45.060 provides: After a witness called by the state has testified to direct examination, the court shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state which relates to the subject matter as to which the witness has testified. If the entire contents of the statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for examination and use. The state's failure to comply with these disclosure requirements, due to the loss or destruction of the evidence in question, does not automatically require the im position of sanctions. Rather, the trial court must carefully examine the circumstances surrounding the state's violation of its duty of preservation. What, if any, sanctions are appropriate is to be determined by weighing the degree of culpability involved on the part of the state, the importance of the evidence that has been lost, and the evidence of guilt that is adduced at trial. Putnam v. State, 629 P.2d at 43. Where the evidence in question was destroyed in bad faith or as part of a deliberate attempt to avoid production, sanctions will follow. On the other hand, where it appears that the evidence was lost or destroyed in good faith, the imposition of sanctions will depend on the degree to which the defendant has been prejudiced. In cases where the defendant cannot reasonably be said to have been prejudiced by the state's good faith failure to preserve the evidence, sanctions will not generally be appropriate. Where the defendant has suffered prejudice, however, sanctions will generally be warranted. What sanction is appropriate in a given case is left to the sound discretion of the trial court. Id. at 43-44. In applying this rule, the state has the burden of establishing that the failure to preserve the evidence occurred in good faith, and not out of a desire to suppress evidence, and of demonstrating that the defendant has suffered no resulting prejudice. Id. at 44 n. 18. Further, because of the difficulty involved in speculating whether or not the lost or destroyed materials could have been used effectively at trial, the harmless error doctrine will be strictly applied in these cases. Id. Assuming without deciding that the state has a duty to preserve police dispatch tapes, we find that the state has met its burden of establishing that the destruction of the tape was done in good faith. Further, we find that the state has demonstrated that the defendant was not prejudiced by the tape's destruction. Chapin alleges that Kirchner's initial description of the robbers was uncertain and did not match Abdulbaqui and Chapin. This charge is belied by the testimony of Zirger. Zirger testified that Kirchner told him that one of the robbers was white and the other was black and that she had described their clothing, including the ski masks. The present case is like Hines v. State, 703 P.2d 1175 (Alaska App.1985). In Hines, the state failed to retain notes of an interview with a state's witness, whose testimony, the defendant asserted, was contrived and had changed since the initial interview. This court rejected the defendant's argument because he had failed to show that the material allegedly destroyed would have affected the outcome of the case. 703 P.2d at 1179-80. See also Williams v. State, 629 P.2d 54, 63-64 (Alaska 1981) (where the court concluded that erasure of a tape did not result in a violation of due process because the tape would merely have been cumulative of other evidence at trial and would not have led the jury to entertain a reasonable doubt about the defendant's guilt). Thus, even had the tape been preserved it would have been cumulative of other evidence and not particularly favorable to the defendant. It would not have created a reasonable doubt about the defendant's guilt, so the trial court did not abuse its discretion in refusing to sanction the state by dismissing the indictment. Chapin next contends that the defendants' trials should have been severed because the defense of each defendant was inconsistent and antagonistic with the other. During the trial, Chapin's counsel moved to sever on the grounds of prejudicial joinder, but Judge Greene denied the motion. Alaska Rule of Criminal Procedure 8(b) provides, in pertinent part: Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction . constituting an offense or offenses. Alaska Rule of Criminal Procedure 14 provides, in pertinent part: If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants, or provide whatever other relief justice requires. A trial court's decision to deny severance can be overturned only for abuse of discretion, Maynard v. State, 652 P.2d 489, 491 (Alaska App. 1982), and only where there has been a showing of prejudice. Montes v. State, 669 P.2d 961, 966 (Alaska App. 1983). Antagonistic defenses do not ordinarily require severance. Middleton v. State, 577 P.2d 1050, 1053 (Alaska 1978). However, where the defenses are irreconcilable, that is, mutually exclusive to the extent that one must be disbelieved if the other is to be believed, severance should be granted. United States v. Bovain, 708 F.2d 606, 610 (11th Cir.), cert. denied, 464 U.S. 898, 104 S.Ct. 251, 78 L.Ed.2d 238 (1983); United States v. Mota, 598 F.2d 995, 1001 (5th Cir.1979), cert. denied, 444 U.S. 1084, 100 S.Ct. 1042, 62 L.Ed.2d 770 (1980); State v. Lawson, 144 Ariz. 547, 698 P.2d 1266, 1276 (1985). In the present case, neither defendant testified. Chapin's defense was in the nature of a general denial, whereas Abdulbaqui's defense was that although he was present in the liquor store while it was robbed, he did not participate in the robbery. The only witness called by Abdulbaqui was a trooper who testified that Abdulbaqui did not own the guns which had been found on Abdulbaqui and Chapin. At final argument, counsel for Abdulbaqui maintained neutrality as to whether Chapin was the robber. Thus, the defenses presented, though different, were not irreconcilable. The trial court did not abuse its discretion in refusing to grant Chapin's motion to sever. Chapin's final argument is that imposition of sentence under both AS 11.41.500 and AS 12.55.125(c)(2) violates the requirement of due process (right to jury trial) and the prohibition against double jeopardy. Chapin was sentenced for first-degree robbery, a class A felony, AS 11.41.500(b), which includes as an element being armed with a deadly weapon, AS 11.41.500(a)(1), or using or attempting to use a dangerous instrument. AS 11.41.500(a)(2). Chapin's sentence was also enhanced pursuant to AS 12.55.125(c)(2), which states: (c) A defendant convicted of a class A felony may be sentenced to a definite term of imprisonment of not more than 20 years, and shall be sentenced to the following presumptive terms, subject to adjustment as provided in AS 12.55.155— 12.55.175: . (2) if the offense is a first felony conviction, other than for manslaughter, and the defendant possessed a firearm, used a dangerous instrument, or caused serious physical injury during the commission of the offense, or knowingly directed the conduct constituting the offense at a uniformed or otherwise clearly identified peace officer, fire fighter, correctional officer, emergency medical technician, paramedic, ambulance attendant, or other emergency responder who was engaged in the performance of official duties at the time of the offense, seven years.... (Emphasis added). Chapin objects to the fact that both the crime and the enhancement statute include as an element the use of a deadly weapon. As the state notes and Chapin concedes, the issue of whether imposition of sentence under both AS 11.41.500 and AS 12.55.125(c)(2) violates the prohibition against double jeopardy was considered in Burks v. State, 706 P.2d 1190 (Alaska App. 1985). In Burks, the defendant was con victed of first-degree robbery and the trial court enhanced the defendant's sentence pursuant to AS 12.55.125(c)(2). The defendant appealed, asserting that use of the enhancement statute in conjunction with a crime that required use of a deadly weapon as an element violated the prohibition against double jeopardy. This court rejected that argument, finding that the enhanced presumptive terms operate independently of the elements of the underlying offenses. Burks thus forecloses Chapin's double jeopardy argument. Id. at 1192. Chapin next argues that the use of a dangerous instrument element in AS 12.-55.125(c)(2) must be found by a jury before it can be used to enhance a sentence. He cites State v. Wedge, 293 Or. 598, 652 P.2d 773, 778 (1982), which held that the question of whether a defendant used a firearm during the commission of a crime should be decided by a jury. This argument is foreclosed by both fact and law. Here, because the jury had to find that a dangerous instrument or deadly weapon was used in order to convict Chapin of AS 11.41.500, Chapin has been given his jury finding on the issue. Such a finding is not required by Alaska law, however. In Huf v. State, 675 P.2d 268 (Alaska App. 1984), the defendant was convicted of first-degree sexual assault and' first-degree burglary and was sentenced under the enhancement statute for possessing or using a firearm. The defendant requested that the question be decided by a jury. This court held that the question was a question for the court, not the jury. Id. at 271. Thus, Huf forecloses Chapin's right to jury trial argument. CONCLUSION We AFFIRM both Abdulbaqui's and Cha-pin's convictions. We also AFFIRM Cha-pin's sentence. However, we VACATE and REMAND Abdulbaqui's sentence for further proceedings consistent with this opinion. BRYNER, C.J., not participating. . See United States v. Mota, 598 F.2d 995, 1001 (5th Cir.1979), cert. denied, 444 U.S. 1084, 100 S.Ct. 1042, 62 L.Ed.2d 770 (1980) (Mota entered a general denial to charges relating to sale of cocaine and Flores entered an insanity plea; counsel for Flores acknowledged in argument that the government's evidence as to Flores would probably support the prosecutor's allegations as to what had taken place; held defenses not irreconcilable — Flores introduced no testimony that implicated Mota).

6903031

STATE of Alaska, DIVISION OF WORKERS' COMPENSATION, Petitioner, v. TITAN ENTERPRISES, LLC; Titan Topsoil, Inc.; CCO Enterprises; and Todd Christianson, Respondents

State, Division of Workers' Compensation v. Titan Enterprises, LLC

2014-11-28

No. S-15166

316

323

338 P.3d 316

338

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:25:58.282102+00:00

CAP

Before: FABE, Chief Justice, WINFREE, STOWERS, and BOLGER, Justices.

STATE of Alaska, DIVISION OF WORKERS' COMPENSATION, Petitioner, v. TITAN ENTERPRISES, LLC; Titan Topsoil, Inc.; CCO Enterprises; and Todd Christianson, Respondents.

STATE of Alaska, DIVISION OF WORKERS' COMPENSATION, Petitioner, v. TITAN ENTERPRISES, LLC; Titan Topsoil, Inc.; CCO Enterprises; and Todd Christianson, Respondents. No. S-15166. Supreme Court of Alaska. Nov. 28, 2014. Aesha Pallesen, Assistant Attorney General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Petitioner. David A. Nesbett, Nesbett & Nesbett, PC, Anchorage, for Respondents. Before: FABE, Chief Justice, WINFREE, STOWERS, and BOLGER, Justices.

4066

25849

OPINION FABE, Chief Justice. I. INTRODUCTION The Alaska Workers' Compensation Board fined an uninsured employer a substantial amount because the employer had since 2005 operated for a significant period of time without carrying statutorily required workers' compensation insurance. This was not the employer's first failure to carry the required insurance. On appeal, the Alaska Workers' Compensation Appeals Commission affirmed part of the Board's decision, but it reversed the Board on the amount of the fine and remanded the case to the Board for further proceedings. The employer then asked the Commission for an award of attorney's fees as a successful party on appeal. The State, Division of Workers' Compensation, which had initiated the Board proceedings, opposed the award on the basis that it, too, had been successful on a significant issue. The Commission awarded the employer full fees of approximately $50,000. The Division petitioned for review of the fee award, and we granted review. Because the Commission failed to consider the Division's partial sue-cess in the appeal, we reverse the Commission's decision and remand for further proceedings. II. FACTS AND PROCEEDINGS Todd Christianson is the sole owner of several businesses, including the three involved in this proceeding: Titan Enterprises, LLC; Titan Topsoil, Inc.; and CCO Enterprises, LLC At various times Titan has failed to carry workers' compensation insurance, in violation of Alaska law. According to the Board's decision in this case, Titan had at least one employee injury when it was uncovered, and Christianson paid out of pocket for that injury. The Board found that Christianson and his businesses had "a long history" of work-related injuries, with 13 reported injuries; the most serious was a leg amputation, which happened when the business was insured. Alaska Statute 23.30.075(a) requires an employer to either buy workers' compensation insurance or provide proof that it is capable of self-insurance for workers' compensation claims. Failure to maintain workers' compensation insurance may subject an employer to criminal penalties. In addition, beginning in the legislature gave the Division of Workers' Compensation the authority to investigate employers without the required coverage and to initiate proceedings before the Board to fine these employers Alaska Statute 28.30.080(f) permits the Board "to assess a civil penalty of up to $1,000 for each employee for each day an employee is employed" while an employer is uninsured. The money generated by any fines is deposited in the Workers' Compensation Benefits Guaranty Fund, created in 2005; when money is available, the Fund pays the claims of injured workers whose employers do not have compensation coverage. The Division began proceedings against Titan in 2008 for failing to carry workers' compensation insurance and failing to provide proof of workers' compensation liability coverage. Titan came to the Division's attention when "a routine records check" showed that Christianson's companies' insurance policies had been cancelled in March 2006, "for nonpayment of premium." The records also showed Titan had not obtained a new policy until October 2007; that policy was cancelled in early January 2008. Christianson paid out of pocket for an uncovered injury to a worker in 2006. The Division investigated Titan at that time but closed its file without requesting a Board hearing. The Board held two hearings on the Division's petition. Neither party was represented by counsel before the Board: Christian-son represented himself and his companies, and Christine Christensen, an investigator, represented the Division. The parties presented conflicting evidence about the length of Titan's lapses in coverage and the reasons for them. They also disputed the extent to which Christianson observed corporate formalities and kept the corporations separate. The Division contended that a number of aggravating factors in its regulation applied to the case. The Board found that Titan was an uninsured employer for 563 calendar days after 2005. The Board looked at Titan's history of workers' compensation coverage problems and Christianson's appearance before the Board in 2002 for failing to insure when he was doing business as another corporation. The Board found that Christianson's businesses had been involved in 13 injuries, including "a leg amputation, upper and lower extremity injuries, and back injuries." The Board also noted the uninsured injury in 2006. Using data from the Employment Security Division, the Board found Christian-son had "utilized 6,399 uninsured employee workdays after November 7, 2005" and had "purchased a single workers' compensation insurance policy for several different business entities." It summarized facts related to the use and purchase of CCO, an employee leasing company, including the fact that CCO's only client was Titan. The Board pierced the corporate veil and found Chris- tianson individually liable, jointly and severally, with his companies. Noting that Christianson had previously been before the Board for. failing to have insurance, the Board found that he had a "blatant disregard for the law" and had "gamed the workers' compensation system in attempts to avoid paying fully for coverage." The Board acknowledged that its regulation about uninsured employers did not apply because the regulation became effective only after the coverage lapses, but the Board nonetheless used the factors as a guide in assessing a penalty. The Board decided that had the regulation applied, Titan's conduct would have justified nine aggravating factors and no mitigating factors, resulting in a minimum penalty of $500 per uninsured employee workday and a maximum of $999 per uninsured employee workday. The Board fined Titan $999 per employee workday for the period it was uninsured, resulting in a fine of more than $6 million. Titan appealed to the Commission, appealing both the size of the fine and the Board's decision to pierce the corporate veil. Titan also argued that the Board violated Titan's due process rights by "refusing to allow [it] additional time to hire representative legal counsel prior to the Board hearing." The Division responded that the fine was not excessive given the facts of the case and that piercing the corporate veil was appropriate in the case. The Commission affirmed the Board's decision to pierce the corporate veil and hold Christianson liable individually. But the Commission decided that the Board had abused its discretion when setting the penalty, calling the fine "a shocking amount." The Commission reversed part of the basis for the Board's fine, including its finding on the time periods when Christianson's businesses were uncovered, and remanded to the Board for additional findings about the liability of Christianson's various < corporate entities. According to the Commission, the Division "conceded that two of the aggravating factors" were not supported by the evidence, and Christianson conceded "at least initially" that five of the aggravating factors were supported by the evidence. The Commission also remanded for the Board to "hear evidence on any disputed aggravating factors." Titan then requested attorney's fees as the successful party on appeal, contending that under Lewis-Walunga v. Mumicipality of Anchorage it was entitled to an award of full fees ($50,925) because it had won a significant issue on appeal. Titan justified the amount of fees in part because "[alppellants consisted of three business entities and one person, which necessitated legal analysis and counsel individual to each entity" and because "the law involving piercing the corporate veil . required intensive and expansive legal research." The Division responded that both parties were partially successful in the appeal, since it had won the veil-piercing issue, and asserted that no fee award was warranted. The Division argued in the alternative that Commission precedent required the Commission to reduce the amount of fees from the full amount because Titan had not won all issues on appeal. Finally, it maintained that full fees should not be awarded to Titan because "the public policy concern of securing competent counsel for injured workers" was "not implicated in this case." The Commission decided that Titan qualified for an award of fees. Before setting out its legal analysis, the Commission "point[ed] out . that Christianson's conduct entailed deliberate wrongdoing." It first stated that neither the statute nor the Commission's regulations "discriminate between claimants and other parties to an appeal, as far as eligibility for attorney fee awards is concerned." It then decided that Christianson should be considered a "successful party" under Lewis-Walunga because he had "prevailed on at least two issues that were significant." The Commission wrote that it took "a dim view of Christianson's conduct," but it felt "constrained by [AS 23.30.008(d) ] to award Titan 'fally compensatory and reasonable' attorney fees, and costs." It awarded all of the requested fees, as well as costs. The Commission discussed none of the Division's arguments. The Division petitioned for review, which we granted on two questions: (1) whether a successful party who is not a workers' compensation claimant should be awarded attorney's fees under AS 28.30.008(d) and (2) how attorney's fees should be awarded under AS 23.30.008(d) consistent with our holding in Lewis-Walunga if more than one party prevails on a significant issue in the appeal. III. STANDARD OF REVIEW We apply our independent judgment to questions of law that do not involve agency expertise. Interpretation of a statute is a question of law to which we apply our independent judgment; we interpret the statute according to reason, practicality, and common sense, considering the meaning of the statute's language, its legislative history, and its purpose. IV. DISCUSSION A. A Successful Party Should Be Awarded Attorney's Fees Even When The Party Is Not A Workers' Compensation Claimant. Alaska Statute 28.30.008(d) provides in part, "[in an appeal, the commission shall award a successful party reasonable costs and, if the party is represented by an attorney, attorney fees that the commission determines to be fully compensatory and reasonable." Subsection (d) shields injured workers from having to pay fees unless their appeal is frivolous, unreasonable, or brought in bad faith. We have construed AS 23.30.008(d) three times, onee considering whether an appeal was frivolous and twice considering whether a claimant was a "successful party" entitled to an award of attorney's fees In Lewis-Walunga v. Municipality of Anchorage, we held "that a claimant is a successful party in an appeal to the Commission when the claimant prevails on a significant issue on appeal. Here we must decide whether a litigant who is not a claimant can be awarded attorney's fees and costs for an appeal to the Commission.. We hold that litigants other than claimants are entitled to attorney's fees and costs in a Commission appeal. We apply a sliding-scale approach to statutory interpretation: We consider the plain meaning of the statutory language, but we also look at the legislative history because "legislative history can sometimes alter a statute's literal terms. " "The plainer the statutory language is, the more convincing the evidence of contrary legislative purpose or intent must be. !} We construe all see-tions of an act together. As we observed in Lewis-Walunga, there is very little legislative history about AS 23.30.008(d), and what little there is suggests an intent for the Commission to award attorney's fees in a manner similar to appellate attorney's fee awards in the courts. But there is a critical difference in the statutory language and our practice in awarding appellate attorney's fee awards: While the legislature continued to shield injured workers from fee awards-as do the appellate rules-it directed the Commission to award attorney's fees to a successful party, not just to a successful claimant. The legislature also did not limit fee awards by the Commission to those fees "rendered in respect to a claim" or "in the successful prosecution of [a] claim. The definition of "party" in Black's Law Dictionary includes both plaintiffs and defendants Absent any related - statutory provisions or contrary legislative history that might alter the statute's meaning, we construe AS 23.30.008(d) according to its plain language and hold that non-claimants are entitled to fees that are fully compensatory and reasonable when they are a successful party in an appeal to the Commission, with the exception that non-claimants are not entitled to an award of fees against an injured worker unless the worker's position on appeal "was frivolous or unreasonable or the appeal was taken in bad faith. The Division asks us to construe the statute to prohibit awards of full fees in cases like this one, where the Board has fined an employer for failing to insure, because such fee awards contravene the statute's purpose of protecting injured workers and do not accomplish the goal of ensuring that competent counsel are available to injured workers. 'The Division also contends that the legislature likely did not consider a situation like this one when it wrote subsection .008(d). Titan responds by emphasizing the statutory language. We do not rewrite statutes even when the legislative history suggests that the legislature may have made a mistake in draft, ing, but here, there is no indication the legislature made such a mistake. Even if the Division is correct that the legislature did not envision the possibility of an attorney's fee award to an employer who is subject to a fine for failing to insure, "[the Division's remedy lies with the legislature, not this court. We thus agree with the Commission that attorney's fees in appeals to the Commission are not restricted to claimants. B. When Two Non-Claimant Parties Are Both Successful On A Significant Issue On Appeal, The Conimission Must Consider The Success Of Both Parties In Making A Fee Award. Although we have previously interpreted AS 283.30.008(d), we have not had occasion to consider how fees should be awarded under this statute when two non-claimants both enjoy partial success before the Commission. In Lewis-Walunga, a claimant succeeded on the sole issue presented on appeal to the Commission, the Board's award of attorney's fees. The Commission vacated the Board's fee award and remanded for further proceedings. In spite of the claimant's success in obtaining a remand to the Board, the Commission refused to award attorney's fees to the claimant because, in its view, she had not gotten the specific relief she requested. We reversed, holding that a claimant who succeeds on a significant issue on appeal is entitled to an award of fees and that the appellant there was a successful party. Similarly, in Humphrey v. Lowe's Home Improvement Warehouse, Inc. we reversed the Commission's denial of attorney's fees to a claimant who had partial success on appeal. There the Commission vacated the Board's attorney's fee award to the claimant but affirmed the Board's decision that the claimant was not entitled to temporary total disability benefits for a specific period of time. When the claimant asked the Commission to award him attorney's fees for the appeal, the Commission denied his motion, deciding he was not a successful party and thus not entitled to any fees for the appeal. We reversed the Commission's decision about attorney's fees, holding that "a claimant who prevails on 'a significant issue' on appeal is a successful party." Disregarding the partial success of the employer in Humphrey is consistent with the statute's language, which shields an injured worker from having to pay fees unless his "position on appeal was frivolous or unreasonable or the appeal was taken in bad faith. " But AS 28.30.008(d) has no corresponding shield for non-claimants who lose a significant issue in a Commission appeal. As a result, even though one non-claimant can get an attorney's fee award in an appeal when it litigates against another non-claimant, there is no reason to disregard the success of the other non-claimant in the event that both non-claimants are successful on a significant issue. In this case, there is no dispute that the Division was successful on the veil-piere-ing issue. As the Division points out, by creating precedent permitting the Board to pierce the corporate veil, the Commission enhanced the Division's ability to pursue enforcement actions when someone abuses the corporate form. At oral argument before us, Titan agreed that piercing the corporate veil was a significant issue, admitting that Chris-tianson is not able to discharge the debt in a personal bankruptcy even if the corporations might be able to do so. We therefore hold that the Commission erred in disregarding the Division's success on the veil-piereing issue, a significant issue in the appeal, when it awarded full attorney's fees to Titan. If two non-claimants both succeed on significant issues in an appeal, the Commission must weigh the success of both parties when it considers a motion for attorney's fees. The Commission may take one of two approaches in evaluating this type of fee request. The Commission may decide that neither party can truly be deemed a successful party, just as a trial court in applying Alaska Civil Rule 82 does not abuse its discretion when it decides that neither party can be characterized as the prevailing party. In such a case, the Commission can opt not to award fees: "We have found 'no abuse of discretion in the superior court declaring the case a "wash" and ordering each party to bear [its] own costs and fees'" Alternatively, the Commission can consider the amount of fees incurred by both parties, as well as the parties' relative success in the appeal, and offset the competing fee awards to the parties to arrive at the final award of attorney's fees in the case. } Treating non-claimants differently from claimants follows from the language of iAS 23.30.008(d) as well as other sections of the statute: The Alaska Workers' Compensation Act restricts the manner in which fees can be paid to claimants' attorneys. Attorneys are prohibited from receiving fees for representing claimants unless the Board awards them fees when claimants are successful. In addition claimants' attorneys were until 2005 subject to criminal sanctions if they accepted any fee that was not Board ordered. In 2005 the legislature amended the statute to permit an attorney licensed in Alaska to accept "a one-time-only charge" of $300 from a claimant for providing legal services so long as the attorney does not enter an appearance for the The policy that counsel for injured workers are entitled to fully com-pensable and reasonable fees is grounded in the restrictions the legislature places on fees attorneys may charge for representing injured workers. As we observed in Wise Mechanical Contractors v. Bignell, "If an attorney who represents claimants makes nothing on his unsuccessful cases and no more than a normal hourly fee in his successful cases, he is in a poor business. He would be better off moving to the defense side of the compensation hearing room where attorneys receive an hourly fee, win or lose.... 45 We reaffirmed this principle in State, Department of Revenue v. Cowgill, again observing that "employers' attorneys are paid whether they win or lose, while employees' attorney's fees are, by statute, contingent upon success." Given the continuing restrictions on fee arrangements available to claimants' attorneys, the statutory restriction on fee awards against injured workers in appeals to the Commission, and the continuing need for competent counsel to represent injured workers, AS 28.30.008(d) necessitates awards of "fully compensatory and reasonable" fees to claimants when they prevail on a significant issue, even when the employer also has partial success on appeal. Because there are no similar restrictions on the fee arrangements of attorneys who represent employers, and because the legislature did not shield non-claimants from fee awards in any situation, the Commission must consider the relative success of all non-claimant parties in deciding a motion for attorney's fees in appeals involving only non-claimants. v. CONCLUSION We REVERSE the Commission's decision that Titan was the successful party on appeal and REMAND to the Commission for further proceedings consistent with this opinion. MAASSEN, Justice, not participating. . We refer to the respondents as "Titan" unless the context requires otherwise. . See AS 23.30.075(b) (permitting imposition of fine and term of imprisonment for up to one year "upon conviction"). . Ch. 10, § 30, FSSLA 2005. . AS 23.30.080(c)-(f). . AS 23.30.082(a). . Ch. 10, § 31, FSSLA 2005. . AS 23.30.082(a), (c). . A regulation effective in February 2010 sets out 15 aggravating factors the Board should consider when setting the amount of a fine. 8 Alaska Administrative Code (AAC) 45.176(d) (2011). Possible fines vary depending on the number of aggravating factors, with higher penalties imposed for a larger number of aggravating factors. 8 AAC 45.176(a)(2)-(6). . 8 AAC 45.176 does not set out mitigating factors, but a Commission decision predating the regulation mentions them. See Alaska R & C Comme'ns, LLC v. State, Div. of Workers' Comp., AWCAC Dec. No. 088 at 23, 25-26 (Sept. 16, 2008), available at http://labor.state.ak.us/ WCcomm/memos-finals/D.088.pdf. - . 249 P.3d 1063 (Alaska 2011). . Id. at 1066 (citation omitted). . Monzulla v. Voorhees Concrete Cutting, 254 P.3d 341, 345 (Alaska 2011) (citations omitted). . AS 23.30.008(d). . Shehata v. Salvation Army, 225 P.3d 1106, 1119-20 (Alaska 2010). . Humphrey v. Lowe's Home Improvement Warehouse, Inc., 337 P.3d 1174, Op. No. 6960, 2014 WL 5305861 (Alaska Oct. 16, 2014); Lewis-Walunga, 249 P.3d at 1068-69. . 249 P.3d at 1068 (emphasis added). . Bartley v. State, Dep't of Admin., Teacher's Ret. Bd., 110 P.3d 1254, 1258 (Alaska 2005). . Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 788 (Alaska 1996) (citation omitted). . Monzulla v. Voorhees Concrete Cutting, 254 P.3d 341, 345 (Alaska 2011). . Lewis-Walunga, 249 P.3d at 1067 (quoting State or Araska, Der't or Law, Section By Section Anatysts or SB 130 at 7 (Mar. 3, 2005)). . Compare AS 23.30.008(d), with Alaska R.App. P. 508(g). . See AS 23.30.145(a) (authorizing attorney's fee awards by the Board when claim has been controverted). . See AS 23.30.145(b) (authorizing attorney's fee awards by the Board when employer "otherwise resists" payment of compensation). . Brack's Law Dictionary 1297 (10th ed.2014). In contrast, a claimant is "[olne who asserts a right or demand." Id. at 302. , We consider the phrase "fully compensatory and reasonable" to mean full reasonable fees. The Commission may consider the reasonableness of the fees requested when making an award under AS 23.30.008(d); it need not feel constrained to award the full amount of fees requested in every case. We have determined at times that the requested fee was not reasonable and awarded a smaller amount. . AS 23.30.008(d). . See State, Dep't of Commerce, Cmty. & Econ. Dev., Div. of Ins. v. Alyeska Pipeline Serv. Co., 262 P.3d 593, 597-98 (Alaska 2011) (citation omitted). . Id. at 598 (citation omitted). . 249 P.3d 1063, 1066 (Alaska 2011). . Id. . Id. . Id. at 1068-70. . 337 P.3d 1174, 1182, Op. No. 6960 at 17, 2014 WL 5305861 at *7 (Alaska Oct. 16, 2014). . Id. at 6. . Id. . Id. at 15 (emphasis in original) (citing Lewis-Walunga, 249 P.3d at 1068). . AS 23.30.008(d). . In addition to the Division's success on the veil-piercing issue, Titan conceded a number of aggravating factors in the appeal, just as the Division conceded that some aggravating factors were not supported. . When questioned at oral argument before us, neither party was certain whether the companies could discharge this type of debt in bankruptcy. . See Schultz v. Wells Fargo Bank, N.A., 301 P.3d 1237, 1242 (Alaska 2013) (quoting Chambers v. Scofield, 247 P.3d 982, 989 (Alaska 2011)). . Id. (alteration in original) (quoting Pavone v. Pavone, 860 P.2d 1228, 1233 (Alaska 1993). . AS 23.30.145(a)-(b), .260(a). See also Hulsey v. Johnson & Holen, 814 P.2d 327, 328 (Alaska 1991) (reversing small claims judgment for attorneys who had tried to reopen workers' compensation claim because the fee was "in respect to a claim" and had not been approved by Board); McShea v. State, Dep't of Labor, 685 P.2d 1242, 1246 (Alaska 1984) (quoting Board for proposition that AS 23.30.260 shows intent for Board to approve fees); Rose v. Alaskan Village, Inc., 412 P.2d 503, 508-09 (Alaska 1966) (noting that statute makes it a crime to receive a fee that has not been approved by Board). . Former AS 23.30.260 (2004). . AS 23.30.260(b). . Wise Mech. Contractors v. Bignell, 718 P.2d 971, 972-73 (Alaska 1986) (citing Wien Air Alaska v. Arant, 592 P.2d 352, 365-66 (Alaska 1979), overruled on other grounds by Fairbanks N. Star Borough Sch. Dist. v. Crider, 736 P.2d 770, 775 (Alaska 1987)). . Id. at 975. . 115 P.3d 522, 525 (Alaska 2005) (citation omitted).

10447929

Cecil H. KESSICK, Appellant, v. ALYESKA PIPELINE SERVICE COMPANY and Alaska Pacific Assurance Company, Appellees

Kessick v. Alyeska Pipeline Service Co.

1980-10-03

No. 4614

755

759

617 P.2d 755

617

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:25:40.644665+00:00

CAP

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

Cecil H. KESSICK, Appellant, v. ALYESKA PIPELINE SERVICE COMPANY and Alaska Pacific Assurance Company, Appellees.

Cecil H. KESSICK, Appellant, v. ALYESKA PIPELINE SERVICE COMPANY and Alaska Pacific Assurance Company, Appellees. No. 4614. Supreme Court of Alaska. Oct. 3, 1980. Millard F. Ingraham, Rice, Hoppner, In-graham & Brown, Fairbanks, for appellant. Stephen Cramer, Merdes, Schaible, Staley & DeLisio, Fairbanks, for appellees. Before RABINOWITZ, C. J., and CON-NOR, BOOCHEVER, BURKE and MATTHEWS, JJ. This case was submitted to the court for decision prior to Justice Boochever’s resignation.

2517

15665

OPINION BURKE, Justice. In this appeal, Cecil H. Kessick, a claimant under the Alaska Worker's Compensation Act, challenges a judgment of the superior court affirming the Worker's Compensation Board's denial of Kessick's claim for temporary total disability compensation. Kessick maintains that the Board's decision was not supported by substantial evidence. We agree and order the decision reversed. In April 1976, Kessick was employed by Alyeska Pipeline Service Company as a heavy equipment damage appraiser. On April 18,1976, while examining some equipment at the Franklin Bluffs pipeline camp, Kessick was injured when he slipped and fell on some ice. At first he believed that he had merely bruised his knee. Over the next few days, however, the pain in his leg and lower back increased. He then consulted the camp medic who referred him to the Fairbanks Clinic. At the clinic, Kessick was examined by Dr. Edward Lindig, an orthopedic surgeon. Dr. Lindig originally diagnosed Kessick's injury as an acute lumbo-sacral strain and a possible herniated lumbar disc. Physical therapy and pain medication were prescribed. The next day, at Kessick's insistence, he was allowed to return to work. Unfortunately, his condition was such that he was unable to carry out his duties and he was forced to- stop work and seek further treatment. With Dr. Lin-dig's encouragement, Kessick sought outside consultation in his hometown of Huntington, West Virginia. While in Huntington, Kessick had surgery for an inguinal hernia and underwent a number of studies, including a myelogram, on his injury. Although the results of the myelogram were negative, thus virtually ruling out the possibility of a ruptured disc, the studies did reveal some weakness in his right leg. Upon his return to Fairbanks, Kessick was examined by Dr. Mead who diagnosed a femoral nerve stretch injury. Dr. Mead recommended that physical therapy be continued and warned that the healing period would be approximately six to nine months. After further examination, including repeated muscle strength tests, Dr. Lindig concluded that Kessick suffered from a lumboplexus stretch injury and not merely a femoral nerve stretch. He testified that this type of injury is notoriously slow to recover. From May to early October 1976, Kessick underwent physical therapy three times a week as treatment for his injury. On October 10, 1976, Kessick was involved in an automobile collision in which he suffered further injuries. At the hearing, Kessick insisted that he had injured only his neck and head in the automobile accident. Dr. Lindig testified that Kessick had also injured his back, although only to a minor degree which rapidly subsided to its pre-automobile accident condition. As treatment for his additional injuries, Kessick's physical therapy was increased to six times a week. This additional treatment continued until January 1977. In January, Kes-sick returned to his three day a week physical therapy schedule. In early March of 1977, without consulting Dr. Lindig, Kessick flew from Fairbanks to Nunivak Island to participate in a musk ox hunt. Of the five days Kessick spent at the island, he went hunting only one. He spent most of that day lying on a foam pad in a sled which was towed by a snow machine. He estimated that he walked no more than a total of 150-200 yards the entire day. Alyeska's compensation carrier, Alaska Pacific Assurance Company (hereinafter "ALPAC"), paid Kessick's medical expenses and total temporary disability benefits until April 21, 1977. These payments were then halted because of ALPAC's inability to reconcile Dr. Lindig's reports of continued temporary disability with Kessick's hunting trip and ALPAC's belief that the injuries sustained in the October automobile accident were the cause of the disability. On May 31, 1977, Kessick filed an application for an adjustment of his claim, contending that he was still suffering temporary total disability as a result of his April 18, 1976, fall. A hearing was held before the Alaska Worker's Compensation Board in Fairbanks on August 2, 1977. On January 25, 1978, the Board denied Kessick's claim on the grounds that he was no longer suffering any disability as a result of the April 1976 fall. Kessick appealed to the supérior court which affirmed the Board's decision on March 22, 1979. This appeal followed. In reviewing the findings of the Worker's Compensation Board, the question before this court is whether or not the findings are supported by substantial evidence. Ketchikan Gateway Borough v. Saling, 604 P.2d 590, 593 n.8 (Alaska 1979). "Substantial evidence is such relevant evidence as a reasonable mind would accept as adequate to support a given conclusion." Id. That the Board's decision reflects only one of several possible inferences which could be drawn from the facts is not important; it is not the function of this court to reweigh the evidence but only to determine whether such evidence exists. Laborer's & Hod Carriers, Local 341 v. Groothuis, 494 P.2d 808, 811-12 (Alaska 1972); Wilson v. Erickson, 477 P.2d 998, 1002 (Alaska 1970). The evidence before the Board consisted of Kessick's medical records and the testimony of Kessick and his treating physician, Dr. Lindig. Kessick testified that since his April 1976 fall he has suffered pain from his right knee to the base of his spine and that his leg is so weak that it occasionally gives out from under him. Dr. Lindig testified that, as a result of the April 18, 1976 accident, Kessick suffered a lum-bosacral plexus stretch injury which has resulted in persistent motor weakness in his right leg. Improvement had been gradual and steady but very slow over the past year. He further stressed that Kessick's case is "not considered medically stationary for ratings purposes yet. It is anticipated that it will still improve." Despite this testimony, the Board concluded that "as of April 29, 1977, [Kes-sick] had returned to his pre-April 18,1976, injury status." In making this determination the Board relied on the following factors: (1) The Board believed that Kessick was exaggerating his claim and that Dr. Lindig's diagnosis and treatment was based on this exaggeration; (2) Kessick's medical records disclosed that all objective testing, including a myelogram and electromyogra-phy, had been negative; (3) his right knee jerk, which he had lost as a result of his fall, had returned by October 29, 1976; (4) as of April 29, 1977, there was no longer any atrophy in his right leg; and (5) on July 27, 1976, Dr. Mead had estimated a recovery period of six to nine months. After a review of the record, we are unable to accept these factors as "substantial evidence" in support of the Board's conclusion that Kessiek no longer suffered any ill-effects from his April 1976 fall. The Board's decision to disregard Dr. Lin-dig's uncontradicted testimony is inconsistent with the general principle that any doubts concerning inconclusive medical testimony are to be resolved in favor of the claimant. See, e. g., Miller v. ITT Arctic Services, 577 P.2d 1044, 1049 (Alaska 1978); Beauchamp v. Employees Liability Assurance Co., 477 P.2d 993, 996-97 (Alaska 1970). Where there is a conflict in testimony, it is undeniably the province of the Board and not this court to decide who to believe and who to distrust. Alaska Pacific Assurance Co. v. Turner, 611 P.2d 12, at 15 n.8 (Alaska 1980). But, as in Turner, that is not the situation presented by the case at bar. The only medical testimony presented to the Board, that of Dr. Lindig, was that Kessiek was still temporarily disabled. Although the credibility of Dr. Lindig's diagnosis was questioned by the Board, no contradictory medical evidence was presented. Given this lack of other competent medical evidence, the state of Dr. Lindig's testimony was, at worst, inconclusive. Id. Any doubts regarding this testimony should therefore have been resolved in Kessick's favor. Nor does the lack of objective signs of an injury in and of itself preclude the existence of such an injury. See Rogers Electric Co. v. Kouba, 603 P.2d 909, 911 (Alaska 1979). There are many types of injuries which are not readily disclosed by objective tests. The Board's findings that Kessick's right knee jerk had returned and that there was no longer any atrophy in his right leg are also unpersuasive. Although these facts do indicate that Kessiek was recovering, we believe that no reasonable person would infer that the effects of Kessick's injury had totally subsided, particularly in light of Dr. Lindig's testimony. Finally, we believe that the Board's reliance on Dr. Mead's estimate of a six to nine recovery period is misplaced. First, we do not believe that a reasonable person would accept as conclusive a nine-month old prediction that recovery would take approximately six to nine months when a subsequent diagnosis indicates that the patient has not yet recovered. Second, we note that Dr. Mead's estimate was based on his belief that Kessiek was suffering from a femoral nerve stretch and not the lumbo-sacral plexus stretch injury which Dr. Lin-dig ultimately diagnosed. Having determined that the Board failed to resolve inconclusive medical testimony in favor of the claimant and that the record contains no other substantial evidence in support of the Board's conclusion that Kes-sick had recovered from his April 1976 fall, we are compelled to reverse. REVERSED. BOOCHEVER, J., dissents. . AS 23.30.005-.270. . AS 23.30.155. . Prior to testifying, Dr. Lindig was apparently unaware that Kessick had sought treatment for similar pains just three weeks prior to his fall. However, upon being informed of this prior injury and after examining the notes of the doctor who had treated Kessick, Dr. Lindig reiterated his belief that Kessick's current injury resulted solely from his April 1976 fall. Nevertheless, the Board chose to disregard Dr. Lindig's uncontradicted testimony and found that the April 1976 fall had aggravated a preexisting condition. Whether Kessick's fall was the sole cause of his injury or merely aggravated a pre existing condition is not of crucial importance. In either event, the resulting injury is clearly compensable. See, e. g., Hawkins v. Green Assoc'd, 559 P.2d 118, 119 (Alaska 1977); Thornton v. Alaska Workmen's Comp. Bd., 411 P.2d 209, 210 (Alaska 1966). We do note, however, that in the absence of any competent contradictory medical evidence the Board's decision to disregard Dr. Lindig's testimony is inconsistent with the principle that inconclusive medical testimony is to be resolved in favor of the claimant. See discussion in the text infra. . This belief is based on two instances of apparently false testimony and Kessick's failure to consult with Dr. Lindig prior to engaging in the musk ox hunt. Although we have serious doubts about the propriety of disbelieving Kes-sick's testimony merely because he failed to consult his physician prior to engaging in a non strenuous musk ox hunt, an activity which Dr. Lindig testified would have no adverse medical effects, we nevertheless feel that the decision was well within the Board's discretion as the trier of fact. It is well-settled that where a claimant testifies falsely in one instance the trier of fact may elect to disregard his otherwise uncontradicted testimony. Highway and City Transportation, Inc. v. Industrial Comm'n, 71 Ill.2d 297, 302, 16 Ill.Dec. 452, 454, 375 N.E.2d 83, 85 (1978); 3 A. Larson, Workmen's Compensation Law § 80.20, at 15-396-399 (1976). . The basis for the Board's distrust of Dr. Lin-dig's testimony was its belief that his diagnosis was based solely on Kessick's claims of pain and weakness, claims which the Board felt were exaggerated. Seemingly ignored by the Board was Dr. Lindig's testimony that his diagnosis was based on the notes from the camp medic and the results of repeated clinical examinations, including muscle evaluations by therapists, as well as what Kessiek had told him.

10411389

Kenneth Wayne CLIFTON, Appellant, v. STATE of Alaska, Appellee

Clifton v. State

1986-11-28

No. A-853

649

653

728 P.2d 649

728

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:24:54.184555+00:00

CAP

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

Kenneth Wayne CLIFTON, Appellant, v. STATE of Alaska, Appellee.

Kenneth Wayne CLIFTON, Appellant, v. STATE of Alaska, Appellee. No. A-853. Court of Appeals of Alaska. Nov. 28, 1986. Sen K. Tan, Asst. Public Defender and Dana Fabe, Public Defender, Anchorage, for appellant. Nancy R. Simel, 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.

2684

16286

OPINION BRYNER, Chief Judge. Kenneth Wayne Clifton was convicted of one count of first-degree murder, AS 11.-41.100(a)(1), and one count of misconduct involving weapons in the third degree, AS 11.61.220(a)(1). Superior Court Judge James A. Hanson sentenced Clifton to concurrent terms of sixty years' and ninety days' imprisonment. Clifton appeals, contending that the indictment against him was flawed due to the state's failure to present exculpatory evidence to the grand jury, and that the trial judge erred in allowing the state to impeach a defense witness with prior convictions that were more than five years old. Clifton also appeals the sixty-year sentence as excessive. Failure to Present Murray's Statement to the Grand Jury The indictment against Kenneth Clifton stemmed from a homicide on Fourth Avenue in Anchorage on the evening of March 2, 1984. Clifton's companion, Glen Murray, became involved in an argument with a prostitute, Tammy Moore. During the argument, Fairell Tanner, another prostitute, was also present. The argument was brief, and it was ending when the victim, Michael Coon, drove up. Moore got into the car and drove with Coon around the corner. They parked and walked back to the scene of the argument. As Coon approached Clifton and Murray, he asked why they had been harassing Moore and Tanner. Clifton drew a gun from his jacket and shot Coon below the left eye. Coon died from the wound. Both Clifton and Murray fled after the shooting. Clifton went to his father's house in North Peters Creek. He later returned to Anchorage and was arrested that night at the Palace Hotel. Clifton told the police that he drew the gun intending only to scare Coon and that it discharged accidentally. Murray talked to the police the next day, stating that Clifton acted in self-defense. His statement was not presented to the grand jury. On appeal, Clifton contends that Murray's statement was exculpatory and that the indictment should have been dismissed due to the state's failure to present exculpatory evidence to the grand jury. The prosecution has an affirmative duty, under Criminal Rule 6(q), to present exculpatory evidence to the grand jury. Frink v. State, 597 P.2d 154, 165 (Alaska 1980). The duty arises from the grand jury's function: protection of the innocent from unjust prosecution. Id. See also Wilkie v. State, 715 P.2d 1199 (Alaska App.1986); Dyer v. State, 666 P.2d 438, 444 (Alaska App.1983); Tookak v. State, 648 P.2d 1018, 1021 (Alaska App.1982). At first blush, it might appear that Murray's statement to the police was exculpatory. However, upon a closer examination of the circumstances surrounding the making of the statement, the exculpatory effect of the statement is considerably less certain. Clifton and Murray were close friends. Murray left the scene of the shooting quickly and did not go to the police for twenty-five hours. Prior to doing so, he telephoned Clifton's father and learned that Clifton had been arrested and charged with murder. Clifton's father asked Murray to go to the police and make a statement. More significantly, the details of Murray's statement are inconsistent with Clifton's original claim that the shooting was accidental. Murray described the interaction with Coon as follows: We were walking toward the west going down 4th Avenue. The guy came around the corner and yelled hey you mother fuckers I want to talk to you. Wait right there I've something to say. Wait a minute and his whore at that time said yeah baby thems the pecker woods, they the ones, they the ones and ah . we stopped, turned around. I looked at my partner, he looked at me, the guy had his hand in his pocket. I asked my partner have you got a gun? He said yes. The guy walked up and said both you mother fuckers get your hands out of your pockets or I'll blow your brains out. He started to extract a pistol from his right breast pocket of his coat. My friend KENNETH shot him in the head one shot when he threatened us and produced a weapon KENNETH killed him. By contrast, Clifton gave police the following account: We were walkin' down the street and one of (the prostitutes) jumped in a car . a black one and said somethin' to the guy in the car I guess that say that apparently that my friend threatened her, you know, and he come out like a ragin' bull dog. You know, like he was running . walking real fast and all of a sudden I seen somethin' real shiney off the side of him like a knife or pistol . and I just pulled my . weapon to scare him and the weapon . accidentl (sic) went off . it was an accidental shooting . if the weapon was to go off intentionally, it would be to wound him . not to kill him. Clifton went on to say that he would not have shot to kill, "[ujnless it was a definitely life or death situation. If I was gonna die, yeah, I would do it to protect myself or my family." Clifton said that Coon came toward him "at a fast rate like he's gonna do bodily harm." He also stated that Coon did not strike or hurt him in any way. Clifton first asserts that, if admitted before the grand jury, the remarks Murray made to the police would have bolstered his own statement by raising the possibility that he had acted in self-defense. A successful claim of self-defense, however, would have required at least some evidence to support the conclusion that Clifton actually believed his life was in danger: [T]o 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. Weston v. State, 682 P.2d 1119, 1121 (Alaska 1984). Standing alone, Murray's statement might have sufficed to raise the issue of self-defense. In his own statement, however, Clifton in effect admitted that he never actually believed he was faced with "a definitely life or death situation." When taken in conjunction with Clifton's admission, Murray's statement would not have satisfied the subjective prong of Weston. Clifton further argues that Murray's statement is exculpatory because it "fills in the gaps" in the grand jury testimony of Tammy Moore, the prostitute who was involved in the argument that eventually led to the shooting. Clifton claims that, when taken in conjunction with Murray's statement, Moore's grand jury testimony could be construed to support the theory of self-defense. Before the grand jury, Moore testified that Coon ran up to Clifton with his hands in his pocket. Moore stated, in part, that, "[t]he only words I heard him say was what you messing with the holes for and come out your pocket, or something. And that's when, just pow_" Although Murray's statement that Clifton shot Coon in self-defense may appear to be somewhat consistent with Moore's grand jury testimony, it is in conflict with Moore's statements at the scene of the shooting. At that time, Moore gave no indication that Clifton might have acted in self-defense. She told the police, "he did it, he did it for no reason." In testifying before the grand jury, Moore similarly discounted any possibility that Clifton acted in self-defense. At one point, she said: "There wasn't a fight . the [victim] didn't even have a chance to argue or anything." Moreover, Moore never said that she saw Coon with a gun. No weapon was found on or near Coon's body. Clifton also argues that Murray's statement would have confirmed Clifton's account of what he saw before the shooting. However, there are notable discrepancies between the original statements each gave to the police. For example, Clifton made no mention of Coon making verbal threats, while Murray claimed the victim threatened to "blow [their] brains out." Thus, although Murray's statement does lend some support to the claim of self-defense that Clifton ultimately advanced at trial, it was inconsistent with evidence available to the state when the grand jury convened to consider Clifton's indictment. At that time, Clifton appeared to be claiming that the shooting was accidental. It is, of course, possible to conjecture that, in his statement to the police, Clifton really meant to assert a mixed claim of accident and self-defense. If this were the case, then Murray's statement could at least arguably be construed to be exculpatory. Yet, any probative force Murray's statement might possess in this regard would necessarily be diminished by the speculative and inferential nature of this theory, as well as by the circumstances in' which Murray's statement was made. Thus, even if Murray's statement were deemed exculpatory, dismissal of the indictment would not be mandated. Failure to produce exculpatory evidence is rendered harmless where the strength of the evidence presented to the grand jury is more than enough to allow the grand jury to return a true bill. Lipscomb v. State, 700 P.2d 1298, 1304 n. 4 (Alaska App.1985), citing Tookak v. State, 648 P.2d at 1021, and Giacomazzi v. State, 633 P.2d 218 (Alaska 1981). See also Azzarella v. State, 703 P.2d 1182 (Alaska App.1985). Had Murray's statement been presented to the grand jury, the evidence against Clifton would still have been exceedingly strong, and it is likely that the grand jury would have indicted him. The grand jury had the opportunity to read Clifton's initial statement to the police. Moore, in her grand jury testimony, gave little indication that Coon had threatened Clifton or Murray. In fact, she stated that "there wasn't really any exchange of words. There wasn't a fight . the [victim] didn't even have the chance to argue or anything." Neither Moore nor Tanner saw Coon with a weapon at the time of the shooting, and no weapon was found on or near his body. Both Clifton and Murray fled the scene immediately after the shooting, and Clifton discarded his own gun, the murder weapon. Furthermore, the grand jury was made aware that Murray gave a statement to the police; it had the opportunity to request that the statement be presented but chose not to do so. Finally, the grand jury was instructed on the elements of self-defense. We concluded that even if the failure to present Murray's statement was error, the error was harmless and did not require dismissal of the indictment. Murray's Prior Convictions Murray was called as a defense witness. The state successfully sought to impeach him with evidence of prior convictions. These convictions covered the time between 1970-76, a time span of eight to fourteen years before Clifton's trial. Clifton contends that the trial court erred by allowing the state to impeach Murray with prior convictions that were more than five years old. Alaska Rule of Evidence 609 provides: (a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is only admissible if the crime involved dishonesty or false statement. (b) Time Limit. Evidence of a conviction under this rule is inadmissible if a period of more than five years has elapsed since the date of the conviction. The court may, however, allow evidence of the conviction of the witness other than the accused in a criminal case after more than five years have elapsed if the court is satisfied that admission in evidence is necessary for a fair determination of the case. (c)Admissibility. Before a witness may be impeached by evidence of a prior conviction, the court shall be advised of the existence of the conviction and shall rule if the witness may be impeached by proof of the conviction by weighing its probative value against its prejudicial effect. This rule gives the trial court discretion to admit evidence of convictions more than five years old. Moreover, it allows the court a great deal of discretion in balancing probative value against prejudicial impact. Fairbanks v. Johnson, 723 P.2d 79, 85 (Alaska 1986). The trial court's ruling is subject to reversal only for an abuse of discretion. Id.; Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980). The state was able to elicit testimony concerning Murray's prior convictions for one count of breaking and entering in 1970, seven counts of forgery in 1972, one count of larceny in 1972, and two separate larcenies in 1976. Judge Hanson was impressed by what he viewed to be a pattern of felony convictions during Murray's adult life. He was well aware of the prejudicial effect the admission of the prior convictions would have, but also found the convictions to have tremendous probative value: I'm aware that the prejudicial effect of these convictions — demonstrating these convictions to the jury is devastating to this defendant. I think his conviction or acquittal stands or falls based on whether or not . the jury believes Mr. Murray. If . Mr. Murray had an old 14-year-old crime involving dishonesty and then nothing thereafter, or even a couple of cases more than 5 or 10 years old . there'd be no question in my mind, I would say that those are the mistakes of youth and the individual has probably changed considerably in this time, but a significant string of felonies involving dishonesty I think are extremely probative of the character of the witness. They're more probative than prejudicial. Under the circumstances, we do not believe that Judge Hanson abused his discretion in admitting the evidence of Murray's prior convictions. Sentencing Clifton argues that the sentence imposed, sixty years' imprisonment, was excessive. Clifton notes that he has no criminal convictions, does not abuse alcohol or drugs, and has a history of steady employment. According to Clifton, these are mitigating factors that should have been considered by Judge Hanson. Clifton also argues that Judge Hanson should have taken Clifton's theory of self-defense into account in determining an appropriate sentence; that is, Clifton claims that under a theory of imperfect self-defense, he should have received a lesser sentence. Judge Hanson, in his sentencing remarks, indicated that he did not believe Clifton's claim of self-defense. He characterized Clifton's act as the deliberate execution of another human being. Having been convicted of first-degree murder, Clifton was subject to a sentence of at least twenty, but not more than ninety-nine, years' imprisonment. AS 12.55.125(a). Judge Hanson considered the sentencing criteria mandated by State v, Chaney, 477 P.2d 441 (Alaska 1970). He stated that his primary motivation in sentencing Clifton to sixty years' imprisonment was protection of the public and, to a lesser degree, deterrence of others. Judge Hanson emphasized that he was unable to discern why Clifton acted as he did. The psychiatric reports did little to explain Clifton's actions. Judge Hanson stated further that if Clifton could be rehabilitated during his imprisonment that would be good. To that end, he recommended that Clifton undergo psychological and psychiatric treatment and testing while incarcerated. Judge Hanson implied that such treatment was necessary before any rehabilitation could occur. We have independently reviewed the entire sentencing record and conclude that the sixty-year sentence imposed by Judge Hanson is not clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). The conviction and sentence are AFFIRMED. . Clifton separately argues that one of Murray's prior convictions did not qualify as a crime of dishonesty or false statement. A.R.E. 609(a). This assertion is based on the fact that the predicate crime for Clifton's 1970 breaking and entering conviction was malicious destruction of property, and not larceny. We believe Clifton's argument to be questionable. Assuming Clifton's argument to be valid on its merits, however, any error in admitting the 1970 conviction was clearly harmless, given the admissibility of Murray's other convictions.

10411143

Clifford E. RALSTON, Appellant, v. STATE of Alaska, CHILD SUPPORT ENFORCEMENT DIVISION, ex rel. Carla WALL, Appellee

Ralston v. State, Child Support Enforcement Division ex rel. Wall

1986-11-21

No. S-1235

635

637

728 P.2d 635

728

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:24:54.184555+00:00

CAP

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

Clifford E. RALSTON, Appellant, v. STATE of Alaska, CHILD SUPPORT ENFORCEMENT DIVISION, ex rel. Carla WALL, Appellee.

Clifford E. RALSTON, Appellant, v. STATE of Alaska, CHILD SUPPORT ENFORCEMENT DIVISION, ex rel. Carla WALL, Appellee. No. S-1235. Supreme Court of Alaska. Nov. 21, 1986. Charles E. Cole and Christian Bataille, Law Offices of Charles E. Cole, Fairbanks, for appellant. Ardith Lynch, Asst. Atty. Gen., Fairbanks, and Harold M. Brown, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

1460

8950

OPINION RABINOWITZ, Chief Justice. Clifford E. Ralston appeals from a superior court order denying his motion to vacate a writ enforcing an Income Assignment Order (IAO) of his wages which had been obtained by the State of Alaska, Child Support Enforcement Division (CSED). The question presented is whether the IAO may be used to enforce a judgment against Ralston for back child support, accrued pri- or to a court order that Ralston pay monthly child support. We affirm the judgment of the superior court for the reasons set forth below. Facts. Vale Rocky Wall was born on October 21, 1981. In January 1983, CSED brought an action on behalf of Vale's mother against Ralston for establishment of paternity, reimbursement of AFDC payments made on behalf of Vale, and an order of ongoing child support. On September 24, 1984, the superior court entered an order finding that Ralston was Vale's father and that he owed Vale a general duty of support. On March 29, 1985, the superior court entered a Judgment and Order of Support ordering a $17,-800 judgment against Ralston for child support from Vale's birth through February 1985, and ordering Ralston to pay ongoing child support of $445 per month. The Judgment and Order of Support contained an IAO providing that "[i]f child support payments become delinquent, the obligor's income and any money due to him are assigned pursuant to AS 09.65.132." Ralston failed to make monthly support payments. CSED thereafter requested a writ to enforce the IAO. CSED's accompanying affidavit stated that "arrearages" under the order of child support had accrued in the amount of $19,580. This figure represented the four monthly payments that Ralston had failed to make plus the $17,800 judgment against him for back child support, which accrued prior to the court order for support. A writ was issued enforcing the IAO for $20,025 in "arrearag-es" and $445 per month in future amounts due, and pursuant thereto Ralston's employer began to pay CSED fifty percent of Ralston's weekly net earnings. This resulted in a withdrawal of approximately $360-$540 from Ralston's weekly paycheck. Ralston moved to vacate the writ enforcing the IAO, arguing that the IAO could not be used to enforce the $17,800 judgment for back child support. The superior court denied Ralston's motion and this appeal followed. 1. Can The Income Assignment Order Be Used To Collect The Judgment For Back Child Support Accruing Before The Order Of Support Was Issued? The essence of Ralston's argument is that "a judgment which orders a person to reimburse an obligee for support during a period when the obligor was not required to make support payments cannot be equated with a judgment representing delinquent periodic support payments ordered pursuant to an order of support." Ralston argues that "support payments" which must be "in arrears" in order for an IAO to take effect under AS 47.23.062(c) can only be interpreted as payments which must be established by an order of support, presumably, under AS 47.23.062(a). Ralston takes the position that only the $445 per month child support payments ordered by the superior court can be characterized as an order to provide support, so only arrearages as to those payments may be enforced under AS 47.23.062. He argues that the $17,800 judgment cannot be viewed as an "arrearage" or "delinquent support payment" since that amount accrued prior to the court's support order, and that to collect on the $17,800 judgment CSED should use the execution provisions of AS 09.35.010-.330 (which entitle him to execution exemptions not available under AS 47.23.062). In support of his contentions Ralston points both to the wording of the Judgment and Order of Support, which states that CSED shall maintain a record of "support payments," and to the IAO, which states that income shall be assigned if "child support payments become delinquent." Relying on AS 47.23.225, which states that "[a] court order ordering a noncustodial parent obligor to make periodic child support payments . is a judgment that becomes vested when each payment becomes due and unpaid," Ralston concludes that the "judgments" collectible under of AS 47.23.062 must be for unpaid, periodic, court-ordered child support payments. Ralston also contends that enforcement of the IAO would treat him unfairly — as if he had been previously ordered to make monthly support payments, had been apprised that an IAO could be entered against him if he failed to make them, and ultimately did fail to make them. Although Ralston's arguments are not without force, we conclude that Title 47 permits use of the IAO to enforce the judgment for back child support. As a general rule, "provisions for custody and support of children are liberally applied for the welfare of the children." 3 C. Sands, Sutherland Statutory Construction § 68.06, at 254 (4th ed. 1974). Courts have broadly interpreted statutes providing for income withholding to enforce child support in a variety of contexts, in order to best effectuate the legislative purpose to ensure that parents meet their obligations. See, e.g., Martin v. Tate, 492 A.2d 270 (D.C.App.1985); In re Matt, 105 Ill.2d 330, 85 Ill.Dec. 505, 473 N.E.2d 1310 (1985). In amending Title 47 the legislature stated in part: The legislature finds that the effect on the general public of the failure of parents to support their children is vast and far reaching.... The purpose of the amendments in this Act is to enhance the efforts of those persons who seek to enforce the payment of child support obligations by noncustodial parents having the duty of support. Ch. 144, § 1, SLA 1984. Alaska Statute 47.23.900(3) provides in part that " 'duty of support' includes a duty of child support imposed or imposable by law, by a court order, decree or judgment, . and includes the duty to pay arrearages of support past due and unpaid...." The judgment against Ralston to pay back child support of $445 per month from October 1981 to February 1985 arose from a duty "imposable by law;" that is, the father's primary and continuing duty to support his children. Cf. Houger v. Houger, 449 P.2d 766, 770 (Alaska 1969); Johansen v. State, 491 P.2d 759, 769 (Alaska 1971). Although the statute does not speak specifically to whether "arrearages" include amounts owed due to a judgment of back child support, we conclude that the purposes behind the statute justify use of an IAO to collect accrued back child support. There is no language in Title 47 which explicitly prohibits such use. Use of the IAO in situations such as this will ensure that noncustodial parents meet their entire support obligations. AFFIRMED. . The order also provided for post-judgment interest to accrue at the statutory rate. . AS 09.65.132(a) provided: A judgment, court order, or order of the child support enforcement agency . providing for the support of a minor child shall contain an income assignment order. Effective October 1, 1985, AS 09.65.132 was amended and renumbered AS 47.23.062. AS 47.23.062(a) contains language almost identical to former AS 09.65.132(a), but includes a notice provision. AS 47.23.062(a) states in part: A judgment, court order, or order of the child support enforcement agency . providing for support must contain an income withholding order. . AS 09.65.132(c) provided that CSED could request an IAO to take effect if the obligor failed to make a support payment in full within 45 days of the date the payment was due. Amended AS 47.23.062(c) provides in part: If support payments are in arrears in an amount at least equal to support payable for one month, the agency, ., shall request an income withholding order against the obligor to take effect.... . We note that AS 47.23.062(i) provides: An employer shall, to the extent permitted under 15 U.S.C. 1673(b), withhold the current support obligation from an obligor's wages. An employer shall withhold additional income, to the extent permitted under 15 U.S.C. 1673(b), from an obligor's wages for any support arrearage. This section could be read to provide textual support for our conclusion since it distinguishes and provides for income withholding for both a "current support obligation" and for "any support arrearage." However, the statute does not address whether "support arrearage" means ar-rearage with respect to monthly support payments pursuant to a court order of monthly payments, or whether it should also include past due amounts accrued prior to the support order.

6902957

Jason Robert GREEN, Appellant, v. Courtney Nickole PARKS, Appellee

Green v. Parks

2014-11-28

No. S-15382

312

316

338 P.3d 312

338

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:25:58.282102+00:00

CAP

Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

Jason Robert GREEN, Appellant, v. Courtney Nickole PARKS, Appellee.

Jason Robert GREEN, Appellant, v. Courtney Nickole PARKS, Appellee. No. S-15382. Supreme Court of Alaska. Nov. 28, 2014. Jason R..Green, pro se. Valdez, Appellant. No appearance by Appellee. Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

1941

12201

OPINION MAASSEN, Justice. I. INTRODUCTION Jason Green and Courtney Parks disputed custody of their infant daughter. The superior court awarded joint legal custody but gave Courtney primary physical custody and the "final say" if the parties could not agree on issues of their child's welfare. Jason appeals the court's award of custody, a condition that he not consume any aleohol before or during visitation, and the order that he pay all visitation-related travel expenses. We affirm the custody award and the allocation of visitation expenses, but we remand for reconsideration of whether the evidence supports the no-aleohol condition on Jason's visitation. II. FACTS AND PROCEEDINGS Jason Green and Courtney Parks had a daughter in March 2018. Each parent filed a complaint for custody. Shortly thereafter, without prior notice to Jason, Courtney moved to Florida with the child. The superior court held an evidentiary hearing in October 2018. Courtney present- | ed evidence that Jason was controlling and emotionally abusive. Jason presented evidence that Courtney was not allowing his mother, who also lived in Florida, to have reasonable access to their daughter. At the end of the hearing the superior court made oral findings. It found that the presumption in favor of joint legal custody had not been overcome, but that due to the parents' serious difficulties in communicating, Courtney would have the final say in decisions about their daughter's well-being if the parties could not otherwise agree. The court also found that Jason's behavior toward Courtney did not rise to the level of domestic violence, but that it was controlling and demeaning and was relevant to the custody determination in the context of Jason's abili ty to provide for the child's emotional and mental needs. 'It found that Courtney was "defensive" toward Jason and his mother, which interfered with her ability to encourage a close relationship between Jason and their daughter. But the court concluded that the child had been living in a stable environment with Courtney, Courtney had been able to meet her needs, and no other factors weighed against awarding Courtney custody. The court consequently ordered that Courtney retain primary physical custody. The court's subsequent written visitation order granted Jason approximately 15 days of visitation in Florida each year until their daughter is old enough to travel more often; Among other provisions, the order restricted Jason's use of alcohol during and immediately preceding his visits The written child support order, entered concurrently, contains another provision relevant to this appeal: that "Father will pay all travel expenses relating to visitation." Jason appeals. III. STANDARDS OF REVIEW "The superior court has broad discretion in its determinations of child custody. "We will not set aside the superior court's child custody determination unless its factual findings are clearly erroneous or it abused its discretion." "A finding is clearly erroneous when our 'review of the entire record leaves us with a definite and firm conviction that a mistake has been made. " We grant particular deference to the trial court's factual findings when they are based "primarily on oral testimony, because the trial court, not this court, judges the eredibility of witnesses and weighs conflicting evidence." In a child custody case, we find abuse of discretion "if the trial court considered improper factors or improperly weighed certain factors in making its determination." Child support awards and the allocation of travel expenses are reviewed for abuse of discretion. IV. DISCUSSION Jason makes three arguments on appeal: that the court erred (1) in its weighing of the statutory best interest factors in the determination of custody; (2) when it prohibited Jason from consuming alcohol before or during his visits with his daughter; and (8) when it ordered Jason to pay all have] expenses relating to visitation. A. The Court Did Not Abuse Its Discretion In Awarding Primary Physical Custedy To Courtney. Jason argues that the superior court failed to comply with AS 25.24.150(c) in making its custody determination, pointing to two factors he believes were given inadequate weight. First, he argues that the court "did not consider that [Courtney] had moved between four homes in the six months preceding final judgment as a factor in [AS] 25.24.150(0)(5)." But Jason presented no evidence of this at trial, whereas Courtney testified that at the time of trial she and her daughter were living with Courtney's father and stepmother, who assisted with childeare when she was at work or in class. The court found that Courtney and her daughter had been living in a stable environment, and that though Jason could also provide a stable home in Alaska, it was not in the child's best interests to leave her current stable environment. This finding is not clearly erroneous given the evidence, and the superior court did not abuse its discretion in concluding that it favored Courtney. Second, Jason contends that the superior court failed to consider Courtney's unannounced move to Florida with their daughter as evidence of her unwillingness to "facilitate and encourage a close and continuing relationship between the other parent and the child" under AS 25.24.150(c)(6). But the superior court did consider this factor, and in fact identified it as one of the most relevant factors in the case. Although the superior court found, as Jason argues, that Courtney left Alaska without giving him any forewarning, the court also found that she had good reasons to leave: her emotionally unhealthy relationship with Jason in Alaska, and her family and school in Florida. The court also found that Courtney's reluctance to allow Jason's family to spend time with their daughter was understandable to a certain extent, given Courtney's difficult relationship with Jason; but it did cause the court to question whether Courtney would be able to foster a close relationship between Jason and the child. Ultimately, however, the court found that Jason's controlling behavior was "a strike against" awarding him custody because it demonstrated that he was not able to fully provide for their daughter's social and mental needs under AS 25.24.150(c)(2). The superior court carefully weighed these two relevant factors and concluded that the balance slightly favored Courtney. This was not an abuse of discretion. B. Support For The Restriction On Jason's Consumption Of Alcohol Is Not Evident In The Record. In its visitation order the superior court ordered that Jason not consume aleohol during his visits with his daughter or in the eight hours immediately preceding them. Jason argues that this restriction is "without any substantial evidence regarding an issue of alcohol abuse or dependency" and that it places "an unfounded negative stigma upon" him which "could be detrimental" to his career in the United States Coast Guard. In Mariscal v. Watkins, we held that "[plrovisions of a custody award must be supported by findings of fact demonstrating that the superior court properly considered the best interests of the child. " Without evidence of how a parent's behavior affects the parent's relationship with the child, we have "cautioned trial courts against reference to such [behavioral] factors '[tlo avoid even the suggestion that a custody award stems from a life style conflict between a trial judge and a parent. " Relying on these principles, in Mariscal we vacated the conditions in the custody order that prohibited the parent from consuming alcohol while the child was in the parent's custody, driving with the child within 12 hours of consuming any alcohol, and exposing the child to "inappropriate sexual behavior. " We noted that the superior court had made no factual findings about the parent's sexual conduct and had made specific findings that there was no evidence of aleohol abuse; the challenged conditions therefore did not appear to be "related to [the child's] best interests. * We concluded that imposing the conditions in the absence of a supporting factual record was an abuse of discretion. The same principles apply to the visitation order now under review. There was no evidence that Jason's alcohol use "directly af- feets the emotional or physical well-being of 8 his child, and the court made no specific findings on the subject. Remand is therefore appropriate so the superior court can either vacate the challenged condition or make additional findings to support it. C. The Court Did Not Err In Ordering Jason To Pay Visitation Expenses. Jason argues that the court "placed an undue hardship" on him by requiring him to pay all travel expenses for visitation, when it was Courtney's choice to leave Alaska, forcing him to travel to see his daughter. Alaska Civil Rule 90.8(g) requires the court to "allocate reasonable travel expenses which are necessary to exercise visitation between the parties as may be just and proper for them to contribute." Although the court did not explain its allocation, there is support in the record for the requirement that Jason pay all visitation expenses. As a Coast Guardsman he has an adjusted annual income of approximately $56,000, whereas Courtney has no reported income at all. Under the cireumstances, it was not an abuse of discretion to allocate all visitation costs to Jason. v. CONCLUSION We REMAND for the superior court to reconsider the alcohol-related condition in the visitation order in accordance with this opinion. We otherwise AFFIRM the superi- or court's custody, visitation, and child support orders. . Courtney withdrew her complaint a day after filing it. . Limeres v. Limeres, 320 P.3d 291, 295-96 (Alaska 2014) (citing Cusack v. Cusack, 202 P.3d 1156, 1158 (Alaska 2009)). . Id. at 296 (citing Cusack, 202 P.3d at 1159). . Id. (quoting Millette v. Millette, 177 P.3d 258, 261 (Alaska 2008)). . Id. (quoting Sheffield v. Sheffield, 265 P.3d 332, 335 (Alaska 2011)) (internal quotation marks omitted). . Id. (citing Cusack, 202 P.3d at 1158). . Ronny M. v. Nanette H., 303 P.3d 392, 399-400 (Alaska 2013). . Subsection (c)(5) requires consideration of "the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity." . The superior court did not address all the statutory best interest factors, but it was not required to do so. The court's findings must simply give "a clear indication of the factors . the superior court considered important in exercising its discretion or allow us to glean from the record what considerations were involved." Ronny M., 303 P.3d at 402 (quoting Chesser v. Chesser-Witmer, 178 P.3d 1154, 1158 (Alaska 2008)). The court's oral findings here are sufficient. . Subsection (c)(2) requires consideration of "'the capability and desire of each parent to meet" the child's physical, emotional, mental, religious, and social needs. . 914 P.2d 219, 222 (Alaska 1996). . Id. (quoting Craig v. McBride, 639 P.2d 303, 306 (Alaska 1982)) (alteration in original). . 1d. . Id. . Id. . AS 25.24.150(c)(8). . Compare Kristina B. v. Edward B., 329 P.3d 202, 213 (Alaska 2014) (upholding the superior court's unexplained allocation of all visitation expenses to the mother where there was evidence the mother had "exaggerated the cost of her travel and that the true monthly cost of the visits was less than $40," and where the mother had "missed a number of visits without prior notice, causing [the father] to incur the cost and inconvenience of driving the child to the pickup point'"), with Ronny M. v. Nanette H., 303 P.3d 392, 407 (Alaska 2013) (finding an abuse of discretion in allocating all visitation expenses to the father where the mother earned "significantly more," "she ha[d] the potential to earn additional income," and she had access to the children's Permanent Fund Dividends).

10444871

Kermit D. WHITTEMORE, Appellant, v. STATE of Alaska, Appellee

Whittemore v. State

1980-09-26

No. 4314

1

3

617 P.2d 1

617

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:25:40.644665+00:00

CAP

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

Kermit D. WHITTEMORE, Appellant, v. STATE of Alaska, Appellee.

Kermit D. WHITTEMORE, Appellant, v. STATE of Alaska, Appellee. No. 4314. Supreme Court of Alaska. Sept. 26, 1980. William H. Babcock, Sitka, for appellant. James L. Hanley, Asst. Dist. Atty., Larry R. Weeks, Dist. Atty., and Avrum M. Gross, Atty. Gen., Juneau, for appellee. This case was submitted to the court for decision prior to Justice Boochever’s resignation.

1153

7332

OPINION Before RABINOWITZ, C. J., and CON-NOR, BOOCHEVER, BURKE and MATTHEWS, JJ. PER CURIAM. Kermit D. Whittemore was charged by felony complaint twice amended, of violating the Uniform Narcotic Drug Act, AS 17.10.010 et seq., by having a narcotic drug, cocaine, knowingly in his possession and control. After his motion to suppress the cocaine was denied, Whittemore entered a plea of nolo contendere, reserving the right to appeal the validity of the search and seizure of that evidence. He was found guilty and given a suspended imposition of sentence with three years' probation subject to certain conditions, including payment of a $2,000 fine. He now appeals the suppression issue. On September 9, 1977, Sgt. Edgar J. Thornton of the Sitka Police Department appeared before Magistrate Marilyn D. Hanson and was issued a search warrant based on his oral testimony, never verified by oath or affirmation. Sgt. Thornton explained that a brown package addressed to Kermit Whittemore had been opened at the Anchorage airport and found to-contain a white powder in a plastic bag. This substance was field-tested by Trooper Roy Holland of Anchorage and found to contain cocaine. The package was then wrapped in an orange cellophane bag and sent to Sgt. Thornton in Sitka. When the package arrived, Sgt. Thornton, armed with his search warrant, removed it from the cellophane bag and allowed Alaska Airlines personnel to deliver it to Whittemore. After Whittemore had signed for and received the package, Sgt. Thornton arrested him and seized the package. Whittemore based his motion to suppress on the failure of the magistrate to -obtain sworn testimony before issuing the search warrant. The state argued that because the package was lawfully seized in Anchorage and was continually under the control of law enforcement officers, there was no need for a warrant in Sitka. Since none of the facts concerning the events in Anchorage were presented at the preliminary hearing, we ordered a remand to the superior court on September 10,1979, "for the limited purpose of holding an evidentiary hearing to determine whether an illegal search or seizure occurred in Anchorage with respect to the parcel in question." At that hearing, held on November 5, 1979, Denise Mahoney, a customer service agent with Alaska Airlines, testified that she opened the parcel in question because the sender had made several inconsistent statements about its contents. Ms. Mahoney was not an agent of or connected with any governmental entity and testified that she opened the package to be sure that it was not "harmful in some way to the passengers on board' the aircraft." Upon opening the parcel, she observed a baggie containing white powder, notified the airport police, and placed the open package on a supervisor's desk. The airport police arrived and removed the parcel. A few minutes later, Ms. Mahoney went to a first aid room in which she saw the package and Trooper Holland. Holland testified that, upon responding to a call concerning a possible drug violation at the airport, he was shown a small, open package in the custody of the airport police, which contained a white powder in a plastic baggie. Based on his experience with narcotics investigations, Holland felt the powder might be cocaine, and "field tested" the substance with positive results. Holland subsequently sent the package to Sgt. Thornton in Sitka as previously described. Based on the foregoing, the superior court determined that since Ms. Maho-ney was not a government agent, there had been no search by the police, and that the package had been legitimately seized by Holland under the "plain view" doctrine. We agree, and thus affirm. It is generally recognized that airline employees have authority to search packages for the purpose of discovering contraband or inaccurately-declared contents. . . [S]earches by airline employees, acting for an independent and legitimate airline purpose and not in conjunction with or at the direction of the police, do not violate constitutional prohibitions against unreasonable search and seizure. Snyder v. State, 585 P.2d 229, 231 (Alaska 1978) (footnotes omitted). Ms. Mahoney's search was thus valid. It follows that Trooper Holland's seizure of the package, in light of his narcotics experience and the sender's misrepresentations concerning the contents of the package, was valid under the "plain view" doctrine since the baggie containing white powder was not "an apparently innocuous object." Weltin v. State, 574 P.2d 816, 820-21 (Alaska 1978); Anderson v. State, 555 P.2d 251, 256-57 (Alaska 1976). Since the events in Anchorage were legal, no warrant was needed in Sitka under our recent holding in McConnell v. State, 595 P.2d 147 (Alaska 1979). In McConnell, we adopted the "reassertion of control" doctrine announced in United States v. DeBerry, 487 F.2d 448 (2d Cir. 1973), subject to the following limitations: First, contraband must be placed in transit from one person to another. Second, the contraband must be initially discovered through lawful means, such as a search by a private person. Third, law enforcement officials must come into lawful possession of the contraband. Seizure of contraband after it is observed in plain view is one method of acquiring lawful possession. Fourth, authorities in possession must forward the parcel to authorities at the intended destination under controlled circumstances. Thus, the receiving authorities must have information enabling them to identify the parcel when it arrives, such as a description of the container and its contents. ' Fifth, the parcel must be under security or under reasonably continuous surveillance by authorities once it arrives at its destination. The reasonably continuous surveillance must continue after the consignee claims the container. Finally, any substantial break in the chain of custody will vitiate the lawfulness of the search. 595 P.2d at 154-55 (footnote omitted). The requirements of McConnell having been met, the decision of the superior court denying Whittemore's motion to suppress is AFFIRMED. . Oveson v. Municipality of Anchorage, 574 P.2d 801 (Alaska 1978); Cooksey v. State, 524 P.2d 1251 (Alaska 1974). . In addition to his search and seizure argument, Whittemore also alleges defects in the complaint and indictment. The state correctly points out that these issues were waived since they were not raised below. .The state's attempt to explore testing of the seized substance in Anchorage was abandoned in the face of Whittemore's hearsay objections. . It was conceded by Whittemore's counsel at the evidentiary hearing that Ms. Mahoney was not a government agent and therefore not subject to constitutional requirements pertaining to search warrants. . Holland also testified it was customary to forward such a positively tested substance to the laboratory for confirmation. . See also McConnell v. State, 595 P.2d 147, 150 52 (Alaska 1979).

8976377

David G. GLADDEN, Appellant, v. STATE of Alaska, Appellee

Gladden v. State

2005-04-15

No. A-8710

1006

1012

110 P.3d 1006

110

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T18:27:13.756137+00:00

CAP

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

David G. GLADDEN, Appellant, v. STATE of Alaska, Appellee.

David G. GLADDEN, Appellant, v. STATE of Alaska, Appellee. No. A-8710. Court of Appeals of Alaska. April 15, 2005. David G. Gladden, pro se, Dillingham. John W. Wolfe, Assistant District Attorney, Dillingham, Leonard M. Linton Jr., District Attorney, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Ap-pellee. Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

3851

23517

OPINION COATS, Chief Judge. David G. Gladden was charged with driving with a suspended license. At his arraignment, and in subsequent hearings over the next six months, Gladden declined to request appointed counsel, instead asserting that he wanted to hire private counsel. However, despite repeated continuances and warnings that he would have to proceed pro se if he did not find an attorney by the trial date, Gladden showed up at trial unrepresented. The district court refused to grant another continuance, and Gladden proceeded pro se. At trial, Gladden did not testify or present any evidence relevant to the charge against him. Instead he repeatedly asserted that the. district court had no jurisdiction to try him because he was not represented by an attorney. Gladden was convicted. On appeal, he claims .that his right to counsel was violated because he was forced to represent himself at trial. By stubbornly refusing to request appointed counsel or to take the steps necessary to hire private counsel, Gladden impliedly elected to proceed pro se. However, the récord does not unequivocally show that Gladden knowingly and intelligently waived his right to counsel. For this reason, we reverse Gladden's conviction. Facts and proceedings On the afternoon of February 4, 2003, Dillingham Police Officer Joshua Mize saw Gladden driving down Kanakanak Road in Diílingham. From his prior contacts with Gladden, Officer Mize knew that Gladden's driver's license was suspended. Officer Mize followed Gladden's vehicle and contacted him in his driveway'. When Officer Mize asked to see Gladden's driver's license, Gladden produced an international driving permit issued in Costa Rica. Gladden admitted that his Alaska driver's license was suspended. Gladden was charged with driving with a suspended license. At trial, Officer Mize testified to the above facts, and the State introduced a certified copy of Gladden's driving record, which showed that his license was suspended. Gladden did not testify or present any evidence relevant to the charge against him. Instead, he repeatedly objected that the court had no jurisdiction to try him because' he was "without the assistance of counsel under the Sixth Amendment." The jury convicted Gladden, and he appeals. Was Gladden's right to counsel violated? Gladden argues that his conviction is void for lack of jurisdiction because he had no attorney at trial and did not knowingly and intelligently waive his right to an attorney. Resolving this claim requires a review of the pre-trial hearings at which the district court addressed Gladden's failure to hire an attorney and his refusal to fill out the forms necessary to qualify for court-appointed counsel. The relevant pre-trial proceedings Gladden was arraigned on February 19, 2003, before Magistrate Monte Brice. Magistrate Brice informed Gladden of the charge against him, recounted the facts underlying that charge, and-told him what penalties he could face if he was convicted. Magistrate Brice then explained the elements the State had to prove, and informed Gladden of his various rights, including his right to an attorney. When asked if he understood those rights, Gladden said he "didn't hear them"; he also said that he had no questions about his rights. Gladden said he could not afford a lawyer, but that he did not want to apply for court-appointed counsel, and that he would try to "contract with one." Gladden refused to enter a plea, so Magistrate Brice entered a "not guilty" plea on his behalf and scheduled a representation hearing for March 17, calendar call for April 15, and trial for April 21. At the March 17 hearing, Gladden said he had failed to hire an attorney, and he gave Magistrate Brice a copy of a proposed contract he had mailed to various attorneys. Magistrate Brice told Gladden that he could either hire an attorney or request a public defender, and he scheduled a second representation hearing for March 28. At the March 28 hearing, Gladden said he still had not found an attorney willing to sign his contract. Magistrate Brice reminded Gladden that he could apply for court-appointed counsel, but Gladden declined. Magistrate Brice did not schedule another representation hearing. At the April 15 trial call, Gladden told Judge Fred Torrisi that he had not applied for court-appointed counsel and that he had not found an attorney willing to sign his contract. Gladden asked Judge Torrisi why no attorney would sign his contract, and Judge Torrisi told him that he had not read the contract and that he did not get involved in contracts with private attorneys. Judge Torrisi asked Gladden if he wanted a continuance, but Gladden did not respond. Judge Torrisi continued trial call until April 21, the following Monday. On April 17, the court issued a Notice and Order advising Gladden that he would not receive a continuance based- nn the fact that no lawyer was willing to respond to the "request for assistance of counsel" he had filed with the district court. At the April 21 trial call, Gladden listed the names of eight attorneys he claimed he had mailed his contract to, but said none of them had responded. Judge Torrisi cautioned Gladden that his approach to hiring an attorney seemed "ill-designed to actually get a lawyer to represent you," but he added that Gladden was "free to do it however you want." Gladden did not ask for a continuance, and Judge Torrisi kept the case on the April 23 trial schedule. On April 23, Gladden asserted his right to a speedy trial under Rule 45, but also stated that he had not been able to hire an attorney and was not prepared to go to trial without one. Judge Torrisi offered to grant Gladden a continuance if he waived his right to a speedy trial, but said he was not going to delay trial until Gladden found an attorney who would sign his contract; Judge Torrisi noted that he would not sign Gladden's contract if he were an attorney. Gladden continued to insist that he did not understand the charges against him, and that he could not go to trial without an attorney. Judge Torrisi urged Gladden to call some lawyers on the telephone because he was "not going to hear at the last minute that you don't have a lawyer because they wouldn't sign this contract." Judge Torrisi waived Gladden's speedy trial right and continued trial call until August 4. At the August 4 trial call, Gladden still did not have an attorney. Gladden acknowledged that he had not called any attorneys, but instead had continued to mail out his contract. Judge Torrisi continued trial call until August 8 and told Gladden there would be no more continuances. He admonished Gladden to "hire somebody the traditional way or be prepared to do it yourself." Judge Torrisi also issued a Memorandum and Order, which read in part: Since my order of 4/17/03, Mr. Gladden has continued to file various documents. He has not asked for appointed counsel, and argues that he can't retain counsel because no-one will respond to his certified mailings, which contain a contract he wants counsel to sign. It seems to me, and I have said this on thé record, that this method of securing counsel is extremely unlikely to result in his actually obtaining a lawyer, especially since the contract contains terms relating to the type of court, official bonds and seals, a "true Civil Commission" and other provisions which might seem foreign and irrelevant to the usual criminal lawyer. At the August 8 trial call, Gladden had subpoenaed various attorneys, apparently to question them about their qualifications to provide assistance under the Sixth Amendment. After allowing Gladden to question one of these attorneys briefly, Judge Torrisi quashed the subpoenas and excused the witnesses. On August 11, the first day of trial. Gladden argued that the court had no jurisdiction to try him because he still had no attorney. Judge Torrisi refused to delay the trial. The jury convicted Gladden based on Officer Mize's testimony and a copy of Gladden's driving record, which showed that his license was suspended. Did Gladden knowingly and intelligently waive his right to counsel? Gladden was charged with a misdemeanor and faced a possible one-year jail term. Therefore, he was entitled to the assistance of counsel, and his conviction is invalid unless he knowingly and intelligently waived that right. We independently review the record to determine if a waiver of counsel was knowing and intelligent. In James v. State, we discussed the type of inquiry that is required before a court may grant a defendant's request to represent himself in a criminal case:' Except in the most unusual circumstances, a trial in which one side is unrepresented by counsel is a farcical effort to ascertain guilt. Thus, once a defendant has clearly and unequivocally declared his or her intention to appear pro se, the trial judge must conduct a through inquiry into the circumstances surrounding the assertion _This inquiry should be incorporated into the trial record . and should include: advising the defendant of the right to counsel and the importance of having counsel; warning the defendant of the "dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open' and inquiring into the • defendant's educational background, previous experience with criminal trials, and general competence . [T]he defendant must possess the mental competence to understand the dangers and ramifications of self-representation.[ ] Before permitting a defendant to proceed pro se, the trial judge must explain the advantages of legal representation in "some detail." We have cautioned courts against relying on a general explanation of the right to counsel in lieu of objective indica tions that the defendant appreciated what he was giving up by waiving his right to counsel in that particular case. We will excuse an on-record inquiry only if "the record as a whole unequivocally demonstrate^] a full awareness . of the benefits of counsel and the dangers of self-representation." None of the required inquiries appears on the record in this ease; nor does the record as a whole unequivocally demonstrate that Gladden was aware of the hazards of proceeding pro se. Magistrate Brice and Judge Torrisi asked Gladden if he wanted to apply for a public defender and, when he declined, granted numerous continuances to give him time to hire private counsel. Gladden viewed the court system arraignment video, which explains the right to counsel and the benefits of counsel in general terms. Magistrate Brice also told Gladden at arraignment that he had the right to counsel, and explained the nature of the charge and the elements the State had to prove. But once it became clear that Gladden was unlikely to hire an attorney, and after Judge Torrisi warned Gladden that trial would proceed whether he hired one or not, Judge Torrisi never explained to Gladden what an attorney could do, warned him of the problems he could face in defending himself, or asked him if he understood the risks of proceeding pro se. Nor did Judge Torrisi ask about Gladden's educational background or his prior experience with the criminal justice system. We recognize that this was not a complex case. Gladden was charged with one misdemeanor offense of driving with a suspended license. The State's entire case consisted of a copy of Gladden's driving record and Officer Mize's testimony that he had seen Gladden driving. But our supreme court has required a knowing and intelligent waiver of counsel even for minor traffic infractions, while recognizing that the duty of inquiry may be minimal in such cases. Moreover, we cannot speculate about the defenses Gladden might have asserted if he had received the advice of an attorney. The record suggests that Gladden understood the value of an attorney, at least in general terms. Gladden gave the court, copies of several United States Supreme Court decisions that address the right to counsel. Among these was a copy of the Supreme Court's landmark decision in Johnson v. Zerbst, which declared "the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel." But again, absent some inquiry by the trial court, we cannot know whether Gladden read the relevant portions of those decisions, or understood what they meant in the context of his case. A knowing and intelligent waiver of the right to counsel cannot be inferred solely from the vociferousness of Gladden's assertion of that right. As observed in the concurring opinion in James: Many misinformed and uninformed people, mistakenly believing themselves to be adequately informed, hold strong views. Often, though certainly not always, such views can be changed by the giving of thorough and accurate advice.[ ] We have no doubt that Gladden impliedly elected to proceed pro se by refusing to take the steps necessary to hire an attorney after Judge Torrisi warned him that trial would go forward whether he had one or not. But that circumstance did not relieve the trial court of its obligation to ensure that Gladden's decision to forego the assistance of counsel was knowing and intelligent. A number of jurisdictions have reached this conclusion in cases involving similar facts. For instance, in State v. Weiss, an Ohio case, the defendant continually maintained that he wanted private counsel, and hired and fired several attorneys in the seven months between his arraignment and trial. The court gave him four continuances so he could hire an attorney and, when he failed to do so, warned him that trial would go forward whether he had an attorney or not. On the day of trial, the defendant appeared without an attorney, but still insisted that he could not represent himself. The trial court refused to grant any more delays, instead requiring the defendant to proceed pro se, with an appointed attorney serving as an advisor. The Ohio Court of Appeals reversed Weiss's conviction, explaining: A valid waiver of counsel can be either express or implied from the circumstances of the case. For example, the right to have counsel of one's own choice may be deemed to be waived by a defendant who is financially able but fails to retain counsel in an attempt to delay or otherwise frustrate the judicial process. However, "[i]n order to establish an effective waiver of [the] right to counsel, the trial court must make sufficient inquiry to determine whether defendant fully understands and intelligently relinquishes that right." Even when the waiver of counsel is implied by the defendant's purported delaying tactics, a pretrial inquiry as to the defendant's knowing and intelligent waiver of the right must be made. "A court is under no less obligation to ensure that waiver is knowing and intelligent when voluntariness is deduced from conduct than when it is asserted expressly." Such an inquiry must be made, even when the defendant is seemingly engaging in delay tactics, because such a delaying strategy by the defendant is often employed-where the defendant does not understand the crucial role of counsel in criminal cases. If the defendant then continues with his "cat and mouse" game with the court, the court may properly proceed with trial with the knowledge that the defendant knows the gravity of his decision to proceed pro se.[ ] Similarly in Young v. State, the Florida Supreme Court found reversible error where a trial court required a defendant to proceed pro se after he refused to accept the services of his third appointed counsel, because the trial court never conducted an on-record inquiry concerning the advantages of an attor ney and the hazards of self-representation. The Florida high court noted that "[w]hile a trial judge may presume that an abuse of the right to assistance of counsel can be interpreted as a request by a defendant to exercise the right of self-representation, a defendant may not be presumed to have waived the separate right to assistance of counsel" unless the court conducts an on-record inquiry to ensure that the defendant's waiver was knowing and intelligent. In extreme cases, some courts have found that a defendant forfeited the right to counsel even though the record was silent as to whether the defendant knowingly and intelligently waived that right. But we need not decide whether to adopt the forfeiture doctrine in this context as a matter of Alaska law because we conclude that Gladden's conduct was not egregious enough to amount to a complete forfeiture of his right to counsel. Because we are reversing Gladden's conviction on this ground, his claims that he was also denied his right to counsel at arraignment and at sentencing are moot. Gladden's other claims, to the extent that they are preserved, are meritless. He argues that the district court had no authority to decide a case such as his, but the legislature has expressly granted the district court jurisdiction over misdemeanor offenses. Gladden also asserts that the Board of Governors of the Alaska Bar Association has no authority to certify attorneys to practice law in this state, and that all the certificates issued by the supreme court are bogus. Although Gladden evidently believes there is no attorney in Alaska authorized and competent to represent him, we note that it is the State of Alaska that decides who is qualified to practice law in this state. The legislature has authorized the Board of Governors to establish a program for the certification of attorneys and to administer a bar exam. Moreover, the Alaska Supreme Court has stated that it has "inherent and final power and authority to determine the standards for admission to the practice of law" in this state. Conclusion Because the record in this case does not unequivocally show that Gladden knowingly and intelligently waived his right to counsel, we reverse his conviction. REVERSED. . AS 28.15.291(a)(1). . See Ledbetter v. State, 581 P.2d 1129, 1130-31 (Alaska 1978); O'Dell v. Anchorage, 576 P.2d 104, 106-08 (Alaska 1978); Gregory v. State, 550 P.2d 374, 378 (Alaska 1976); Alexander v. Anchorage, 490 P.2d 910, 913 (Alaska 1971). . McIntire v. State, 42 P.3d 558, 561 (Alaska App.2002). . 730 P.2d 811 (Alaska App.1987), modified on rehearing, 739 P.2d 1314 (Alaska App.1987). . Id. at 814 n. 1 (quoting the Commentary to 1 ABA Standards for Criminal Justice § 6-3.6, at 6.39-40 (2d. ed.1982)). . Id. at 813-14 (citations omitted). . McIntire, 42 P.3d at 562; see also O'Dell, 576 P.2d at 108. . Evans v. State, 822 P.2d 1370, 1375 (Alaska App.1991). . O'Dell, 576 P.2d at 105-06, 108; Alexander, 490 P.2d at 915-16. . 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). . Id. at 462-63, 58 S.Ct. at 1022. . James, 730 P.2d at 815 (Bryner, C.J., concurring). . See, e.g., United States v. Allen, 895 F.2d 1577, 1578-79 (10th Cir.1990) (although trial court ruled that defendant's refusal to accept appointed counsel and failure to hire counsel were part of a ploy to postpone trial and were a waiver by conduct of the right to counsel, appellate court reversed conviction because the trial court made no inquiry to ensure that the waiver was knowing and intelligent); State v. Young, 626 So.2d 655, 657 (Fla.1993) (where trial court failed to conduct on-record inquiry, defendant did not waive right to counsel even though he deliberately abused that right by repeatedly seeking the removal of his appointed counsel); Poynter v. State, 749 N.E.2d 1122, 1128-29 (Ind.2001) (defendant did not knowingly waive right to counsel by repeatedly telling the court he would hire an attorney and showing up at trial without an attorney where the court did not advise him of the hazards of self-representation); Fitzgerald v. State, 254 Ind. 39, 257 N.E.2d 305, 311-12 (1970) (court erred by requiring the defendant to proceed pro se without a knowing and intelligent waiver of the right to counsel even though defendant's own conduct for one and one-half years was entirely to blame for his failure to have assistance of counsel at his trial); State v. Weiss, 92 Ohio App.3d 681, 637 N.E.2d 47, 49-50 (1993) (an inquiry to determine if the defendant's waiver of counsel is knowing and intelligent must be made even when the defendant is engaging in delay tactics); Trevino v. State, 555 S.W.2d 750, 752 & n. 1 (Tex.Crim.App.1977) (defendant did not knowingly waive right to counsel even though he attempted to manipulate right to counsel to delay trial where he was not made aware of the dangers and disadvantages of self-representation); Tacoma v. Bishop, 82 Wash.App. 850, 920 P.2d 214, 219 (1996) (court erred in requiring defendant to proceed pro se without warning .him of the hazards of self-representation where defendant's dilatory conduct was not so serious to warrant a complete forfeiture of his right to counsel). . 92 Ohio App.3d 681, 637 N.E.2d 47. . Id. at 48. . Id. at 48-49. . Id. . Id. . Id. at 49-50 (citations omitted). . 626 So.2d 655. . Id. at 656. . Id. at 657. . See, e.g., United States v. Thomas, 357 F.3d 357, 363 (3rd Cir.2004) (defendant forfeited his right to counsel where he threatened his attorney, was verbally abusive to him, tore up his correspondence, refused to cooperate in producing a witness list, hung up on him during a telephone conversation, attempted to force him to file frivolous claims, and engaged in this sort of misconduct with three other attorneys); United States v. Leggett, 162 F.3d 237, 240, 250 (3rd Cir.1998) (defendant forfeited right to counsel where he punched lawyer, knocked him to the ground, then began to choke, scratch and spit on him); United States v. Travers, 996 F.Supp. 6, 17 (S.D.Fla.1998) (finding forfeiture as a result of the defendant's "persistently abusive, threatening, and coercive" dealings with his attorneys and noting that the defendant had been repeatedly warned that his failure to cooperate could result in a finding of forfeiture); United States v. McLeod, 53 F.3d 322, 325-26 (11th Cir.1995) (defendant forfeited his right to counsel where he was abusive toward his attorney, threatened to harm him and sue him, and asked him to engage in unethical conduct). But see King v. Superior Court, 107 Cal.App.4th 929, 132 Cal.Rptr.2d 585, 596 (2003) (noting that most instances of even serious misconduct by a defendant can be dealt with by measures less severe than forfeiture of counsel); State v. Boykin, 324 S.C. 552, 478 S.E.2d 689, 690, 692 (S.C.App.1996) (defendant did not forfeit right to counsel based on one instance in which he "cussed" and "came after" his attorney). See generally United States v. Goldberg, 67 F.3d 1092, 1099-1101 (3rd Cir.1995) (explaining in detail the distinction between express waiver, waiver by conduct, and forfeiture of the right to counsel). . Alaska Const. art. IV, § 1; AS 22.15.060(a)(1)(A). . AS 08.08.080. . AS 08.08.201. . Application of Houston, 378 P.2d 644, 645 (Alaska 1963).

8977374

Coralie BARTLEY and William Clark Bartley, Appellants, v. STATE of Alaska, DEPARTMENT OF ADMINISTRATION, TEACHERS' RETIREMENT BOARD, Appellee

Bartley v. State, Department of Administration, Teachers' Retirement Board

2005-04-15

No. S-10392

1254

1270

110 P.3d 1254

110

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:27:13.756137+00:00

CAP

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

Coralie BARTLEY and William Clark Bartley, Appellants, v. STATE of Alaska, DEPARTMENT OF ADMINISTRATION, TEACHERS’ RETIREMENT BOARD, Appellee.

Coralie BARTLEY and William Clark Bartley, Appellants, v. STATE of Alaska, DEPARTMENT OF ADMINISTRATION, TEACHERS’ RETIREMENT BOARD, Appellee. No. S-10392. Supreme Court of Alaska. April 15, 2005. Rehearing Denied April 25, 2005. Kristine A. Schmidt, Kenai, for Appellants. Kathleen Strasbaugh, Assistant Attorney General, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

10303

64928

OPINION PER CURIAM. I. INTRODUCTION After teaching for seven years with the North Slope Borough School District, Coralie and William Bartley retired under a retirement incentive program offered through Aaska's Teachers' Retirement System ("TRS" or "system"), a retirement plan for Aaska teachers administered by the Department of Administration, Division of Retirements and Benefits. Athough the Bartleys expected to qualify for normal retirement, the division determined that they were eligible only for early retirement; the division also calculated that-they owed substantially more than they had expected to pay for prior years of creditable teaching service outside the system. After unsuccessfully challenging the division's rulings before the Teachers' Retirement Board and the superior court, the Bartleys filed this appeal. We conclude that the board and the superior court correctly applied the controlling law except in calculating the arrearages due for the Bart-leys' creditable outside teaching service. We therefore remand for recalculation of these arrearages but affirm in all other respects. II. FACTS AND PROCEEDINGS From 1968 to 1970 Coralie and William Bartley taught in Aaska for the Bureau of Indian Mfairs ("BIA"). They then left the state and taught outside Aaska before returning in 1991 to teach for the North Slope Borough School District. The Bartleys first became TRS members when they began teaching for the borough school district; they spent seven years with the district, teaching in Point Hope and Kaktovik. TRS members become eligible for retirement benefits under the provisions set out in AS 14.25.110. Subsection .110(a) of that statute describes the eligibility requirements for "normal" retirement benefits; subsection .110(b) specifies the requirements for "early" retirement. Separate provisions of Aaska law allow TRS members to claim retirement credit for certain non-TRS service — military service, Aaska BIA service, and teaching service outsidé Aaska. To receive credit for this non-system service, however, TRS members must pay "arrearage indebtedness" representing contributions that they would have paid to the TRS had they been working as TRS members. Calculation of arrearage indebtedness is governed by AS 14.25.060. Under this provision, the exact amount of arrearage due in a given case depends on several variables, including the number of years and particular kinds of non-TRS service claimed and the time when the TRS member first joined the system. During the 1997-98 school year, the Bart-leys applied to the division for retirement under the system's 1996 retirement incentive program (RIP). The RIP allowed eligible teachers to claim three extra years of service in the system. In addition to this extra time and the seven years they had spent in the TRS,' the Bartleys requested credit for prior years of teaching service in the Aaska BIA and outside the state. When they submitted their applications, the Bartleys expected that their total creditable time would allow them to receive normal retirement benefits; they also expected that the division would calculate their arrearage indebtedness for prior non-TRS service using the 7% annual rate specified in AS 14.25.060(a). After receiving the Bartleys' applications, the division tentatively confirmed that they qualified for retirement under the RIP but did not specify whether they would be eligible for normal or early retirement. In further correspondence during the school year, the Bartleys questioned the division's estimated calculations of their arrearages and indicated that they were seeking normal retirement. The division eventually calculated the Bartleys' arrearage indebtedness using two separate rates — one to establish the debt for their teaching service in the BIA and another to determine the debt for their service outside the state. Specifically, the division used the 8.65% rate specified in AS 14.25.060(d) to calculate the debt for their two years of BIA service and the full actuarial cost method specified in AS 14.25.060(b)(1) to determine indebtedness for their years of teaching service outside Alaska. The Bartleys questioned these calculations but submitted their resignations from the school district in January 1998 and left Alaska at the end of the school year in May. Soon after they left Alaska, the Bartleys received a letter from the division informing them that they would receive early retirement under AS 14.25.110(b) but did not qualify for normal retirement under subsection .110(a). The Bartleys appealed to the TRS board, contesting the division's eligibility determination and challenging its calculation of their arrearage debt. After conducting an eviden-tiary hearing, the board affirmed the division's determinations and rejected the Bart-leys' legal and equitable claims. The Bartleys appealed next to the superior court and moved for a trial de novo. After Superior Court Judge Karen L. Hunt denied a trial de novo, Superior Court Judge Sharon L. Gleason issued a written opinion affirming the board's decision. Judge Gleason found that the division had properly calculated the Bartleys' arrearage indebtedness under AS 14.25.060 and had correctly determined that they were ineligible for normal retirement under AS 14.25.110(a)(1). Based on these findings, the judge rejected the Bartleys' claims that the division had violated their statutory and constitutional rights. The judge also found no basis for invoking estop-pel against the division or granting other equitable relief. Last, Judge Gleason found, the division had neither deprived the Bart-leys of the benefits promised under them RIP nor violated the implied covenant of good faith and fair dealing. The Bartleys appeal. III. DISCUSSION On appeal, the Bartleys renew the claims they asserted below. Having reviewed the briefs and the record, we agree with Judge Gleason's decision as to all but one issue: the question of what method must be used to calculate the Bartleys' arrearage indebtedness for their outside teaching service. We turn to that issue first. A. Arrearage Indebtedness The Bartleys' challenge to the determination of their arrearage indebtedness turns largely on the division's interpretation of AS 14.25.060. When the Bartleys first joined the TRS in 1991, AS 14.25.060 provided, in relevant part: (a) If a member first joined the service before July 1, 1990, and has military service or Alaska Bureau of Indian Affairs (BIA) service, or if a member joined the system before July 1,1978, and has creditable outside service, the member is indebted to the system as follows: (1) At the time of first becoming a member of the system, the arrearage indebtedness is seven percent of the base salary multiplied by the total number of years of creditable outside, military, and Alaska BIA service. The administrator shall add compound interest at the rate prescribed by regulation to the arrearage indebtedness beginning July 1, 1963, or at the time the member first becomes eligible to claim the service, whichever is later, to the date of payment or the date of retirement, whichever occurs first. (b) If a member joins the system on or after July 1, 1978 and has creditable outside service, the member may claim this service. If claimed, the member is indebted to the system as follows: (1) The arrearage indebtedness is the full actuarial cost of providing benefits for the service being claimed. Compound in terest at the rate prescribed by regulation shall be added to the arrearage indebtedness beginning the date the actuarial cost is established to the date of payment or the date of retirement, whichever occurs first. (d) If a member first joined the system on or after July 1, 1990, and has military service or Alaska BIA service, the member's indebtedness shall be determined under (a) of this section except that the percentage multiplier is 8.65 percent.[ ] Here, the division calculated arrearage indebtedness for the Bartleys' prior BIA service using subsection .060(d)'s 8.65% multiplier; the division calculated the arrearage for their outside service under the full actuarial cost method set out in subsection .060(b)(1). In affirming the division's and board's determinations that these provisions applied to the Bartleys' case, the superior' court reasoned: Alaska Statute 14.25.060(a) applies to determine arrearage indebtedness with respect to two types of non-TRS service: (1) military or BIA service when the member "first joined the service before July 1, 1990" and (2) outside service when the TRS member "joined the system before July 1,1978." This subsection, however, is modified by subsection (d), which raises the percentage multiplier to 8.65 percent for military or BIA service "if a member first joined the system on or after July 1, 1990." In the superior court's view, "[b]ecause the Bartleys performed the BIA service before 1990 they are entitled to have their arrear-age indebtedness for that service calculated using a percentage multiplier, rather than actuarial cost. But because they did not join the TRS system until after July 1, 1990, the correct multiplier is 8.65 percent." Following the same approach, the court concluded that subsection .060(b)(1) governed the Bart-ley's arrearage indebtedness for outside service and that the Bartleys' outside teaching service therefore did not qualify as creditable service governed by subsection .060(a)(1). The Bartleys challenge the board's and superior court's interpretation of AS 14.25.060, maintaining that it conflicts with the plain meaning of subsection .060(a). They assert that, by requiring seven percent of the base salary to be "multiplied by the total number of years of creditable outside, military, and Alaska BIA service," subsection .060(a) necessarily prohibits "service splitting" — in other words, treating outside service and BIA service differently. We agree that the challenged interpretation conflicts with the plain meaning of AS 14.25.060(a). The express terms of subsection .060(a) apply to the Bartleys' situation because the Bartleys previously served in the Alaska Bureau of Indian Affairs and "first joined the service before July 1, 1990." The formula spelled out in this subsection requires an eligible claimant's entire "arrear-age indebtedness" to be calculated at the rate of "seven percent of the base salary multiplied by the total number of years of creditable outside, military, and Alaska BIA service." In the Bartleys' case, subsection .060(d) partly modifies subsection .060(a): because the Bartleys first joined the TRS— "the system" — after July 1, 1990, subsection (d) substitutes a multiplier of 8.65% for the 7% multiplier specified in subsection (a). In all other respects, however, subsection (d) leaves subsection (a)'s method of calculating arrearages unchanged, expressly requiring "the member's indebtedness . [to] be determined under (a) of this section except that the percentage multiplier is 8.65 percent." As the Bartleys correctly point out, the plain language of subsection .060(a) requires the same multiplier to be used in calculating arrearages for all creditable non-TRS service: "At the time of first becoming a member of the system, the arrearage indebtedness is seven percent [or 8.65 percent if subsection .060(d) applies] of the base salary multiplied by the total number of years of creditable outside, military, and Alaska BIA service." The superior court ruled that subsection .060(d)'s reference back to subsection .060(a) applied only to the Bartleys' prior BIA service' — in other words, that their arrearages for creditable BIA service should be calculated under subsection .060(a) "except that the percentage multiplier is 8.65 percent." By contrast, the superior court reasoned, the Bartleys' indebtedness for their outside service had to be calculated by the actuarial cost method set out in subsection .060(b) because that subsection best described the Bartleys' situation: subsection .060(b) expressly requires arrearages to be determined by "the full actuarial cost of providing benefits" "[i]f a member joins the system on or after July 1, 1978, and has creditable outside service." Yet as already pointed out above, the plain language of subsection .060(d) militates against this interpretation because it designates subsection .060(a) as the proper method of calculating arrearages for the "member's indebtedness" without expressly limiting that indebtedness to periods of military or BIA service. Of course, the plain meaning of a statute does not always control its interpretation, for we have recognized that legislative history can sometimes alter a statute's literal terms. But under Alaska's sliding-scale approach to statutory interpretation, "the plainer the language of the statute, the more convincing contrary legislative history must be." Here, we find no legislative history contrary to the plain meaning of AS 14.25.060. In fact, the version of this provision that immediately preceded the one applicable to the Bartleys' case reinforces the plain meaning of AS 14.25.060(d), as we described it above. Before 1990, AS 14.25.060 set only two rates that could be used in calculating a new TRS member's arrearage indebtedness for prior creditable non-TRS service. The first rate was spelled out in former subsection .060(a). That provision specified that "the arrearage indebtedness is seven percent of the base salary multiplied by the total number of years of creditable outside, military, and Alaska BIA service." Former subsection .060(a) applied this rate to two distinct sets of TRS members: those with creditable "military service or Alaska Bureau of Indian Affairs (BIA) service," regardless of when they joined the TRS; and those with "creditable outside service," but only if they "joined the system [the TRS] before July 1, 1978." The second arrearage rate set out in former AS 14.25.060 was described in subsection .060(b)(1), which required arrearage indebtedness to be calculated at "the full actuarial cost of providing benefits for the service being claimed." By its own terms, subsection .060(b)(1) applied this rate only "[i]fa member joins the system on or after July 1, 1978 and has creditable outside service." Moreover, because former subsection .060(a)(1) entitled any member with creditable military or BIA service to have the seven-percent rate applied in calculating ar-rearages for all prior creditable service — that is, military, BIA, and outside service — the full-actuarial-cost method set out in former subsection .060(b)(1) implicitly excluded members with creditable outside service who were also entitled to claim either BIA or military service at seven percent under subsection .060(a)(1) — in other words, under former subsection .060(a)(1), subsection (b)(l)'s full-actuarial-cost provision would not apply to TRS members claiming creditable outside service and military or BIA service or those claiming only creditable outside service who joined the TRS before July 1,1978. An opinion issued by the Attorney General in 1982 confirms this plain-language interpretation of the pre-1990 version of AS 14.25.060: AS 14.25.060, as amended in 1977, divides the TRS membership into two groups, as follows: (1) those who either have military service or Alaska Bureau of Indian Affairs service, or who joined the system before July 1, 1978 and have creditable outside service of any kind, and (2) those who joined the system on or after July 1, 1978 and have creditable outside service.[ ] As the Attorney General interpreted the pre-1990 provision, the first group of members it defined had a vested right to have their arrearage-indebtedness calculated under the non-actuarial method set out in subsection .060(a): "The statute in question, AS 14.25.060, extends this protection to those persons who either were former members on July 1, 1978, or who claim credit for military or Alaska BIA service." In the Attorney General's view, the statute would never subject these members to service splitting — that is, it would never require a TRS member who had a right to pay arrearages at seven percent for creditable BIA or military service to pay at the higher, full-actuarial-cost rate for concurrently claimed outside service: A person in the first group must pay seven percent of his or her base salary for each year of creditable outside service. A person in the second group must pay full actuarial cost for all creditable outside service. It is our opinion that the statutory classification is unambiguous and does not permit you to require any person who either was a member of the system before July 1, 1978 or who claims military or BIA service credit to pay the full actuarial cost of creditable outside service.[ ] In 1990, however, the legislature amended the TRS statutes to increase new TRS members' annual TRS contributions from seven percent to 8.65 percent beginning January 1, 1991. The change triggered the need to adopt a corresponding increase in the arrear-age-indebtedness rate for TRS members first joining the system after the 1990 contribution increase. This new class of TRS members could properly be charged for arrearag-es at the same increased rate they would pay for their annual' TRS contributions — 8.65 percent — even if they had prior military or BIA service that entitled them to escape paying for arrearages based on full actuarial cost. The legislature addressed the need to define the arrearage rate for this newly created class by amending former AS 14.25.060(a) and adding a new subsection to AS 14.25.060, subsection .060(d). The amendment to subsection .060(a) changed the definition of TRS members qualifying to have their arrearage indebtedness calculated at seven percent by excluding TRS members with creditable military or Alaska BIA service who first joined that service on or after July 1, 1990, the effective date of the legislation enacting the 1990 TRS contributions increase. In turn, the newly added subsection .060(d) dealt with all members originally included in subsection .060(a) who had a vested right to claim prior creditable service at a non-actuarial rate but whose contribution rate was not frozen at seven percent. Specifically, subsection .060(d) defines this new group to include all TRS members with creditable military or BIA service who first joined the TRS on or after the 1990 amendment's effective date, July 1, 1990; the subsection requires these members to pay arrearages at the increased rate of 8.65 percent, but continues to exempt them from full actuarial costs by mandating that "the member's indebtedness shall be determined under [subsection .060](a) except that the percentage multiplier is 8.65 percent." Although subsection .060(d) does not explicitly mention outside service, this omission proves inconsequential. Under both the current and prior versions of subsection .060(a), only two ways exist for a TRS member with prior creditable outside service to escape paying full actuarial costs for arrearages: (1) by joining the TRS before July 1,1978, which would vest the member with the right to a seven-percent arrearage rate as of 1978; or (2) by tying the outside-service claim to a claim for military or BIA service, which would peg the arrearage rate for the member's outside service to the rate that would govern the concurrent claim for military or BIA service. Hence, no TRS member claiming credit for prior outside service alone could ever be charged for arrearage indebtedness at the 8.65 percent rate set out in subsection .060(d). We recognize that it is possible to construct a contrary meaning for subsection .060(d). Because that subsection specifically mentions only military service and BIA service, and does not mention creditable outside service, a question potentially arises whether that subsection's reference to "the member's indebtedness" was intended by the legislature to be limited to military or BIA service. Although the answer to that question is not necessarily self-evident from the text of subsection .060(d), the legislative history we discuss above convinces us that the legislature did not intend, when it enacted subsection .060(d) in 1990, to limit the cross-reference to subsection .060(a) to military or BIA service, and thus did not intend to exclude creditable outside service from application of the 8.65% interest rate. In summary, then, the legislative history of section .060 reinforces the plain language of the current provision's subsection .060(d). We thus conclude that the statute's plain meaning applies here. When subsection .060(d) applies to part of a member's claim, the subsection's language requires that the member's entire arrearage indebtedness must be calculated following the method set out in subsection .060(a), except that the 8.65% multiplier adopted in subsection .060(d) replaces subsection .060(a)'s seven-percent multiplier. Because neither subsection .060(a) nor subsection .060(d) permits split calculation of arrearage indebtedness for claims mixing prior outside service with military or BIA service, the board's decision to calculate the Bartleys' outside service ar-rearages under subsection .060(b) must be reversed. These arrearages must be recalculated under the method set out in subsection .060(a)(1), except that an. 8.65% rate must apply. B. Eligibility for Normal Retirement , Benefits The next issue we face is whether the board correctly found the Bartleys to be eligible only for early, rather than normal, retirement benefits. We agree with the superior court's decision to affirm the board on this point and adopt the well-reasoned dis cussion of this point set out in the superior court's Decision and Order, which we attach as an appendix to this opinion. We add the following observations to those made by the superior court. As previously noted, the Bartleys' eligibility for normal retirement turns on the meaning of AS 14.25.110. Specifically, the Bartleys argue that they meet the requirements of subsection .110(a)(1) which provides for normal retirement benefits only when a TRS member "was first hired before July 1, 1975, has attained the age of 55 years, and has at least 15 years of credited service, the last five of which have been membership service or is otherwise vested in the system." The division interpreted this provision's phrase "first hired" as referring solely to the date that a TRS member is first hired into a TRS position. But the Bartleys contend that the phrase includes the date a member is first hired into any creditable non-TRS service. Hence, the Bartleys insist, they qualify for normal retirement because they were first hired into the BIA service before July 1,1975. The superior court rejected the Bartleys' interpretation after carefully analyzing AS 14.25.110's history and purpose. To the extent that the court's thorough analysis leaves any room for ambiguity, we find it helpful to consider the division's interpretation of this provision. The division's 1991 handbook gave the following response to -the question "When will I be eligible to retire and start receiving monthly benefits?": That depends on your age and TRS service. If you meet the minimum TRS service requirements described below and you were first hired under the TRS: • before July 1, 1990, you can retire at age 55 for normal retirement or age 50 for early. • after June 30,1990, you can retire at age 60 for normal retirement or age 55 for early. (Emphasis added.) At their hearing before the board, the Bartleys acknowledged that they received and read this portion of the handbook and that they understood that the division's interpretation would not entitle them to normal retirement. Despite their knowledge of the division's interpretation, which was confirmed for them by a division representative, the Bartleys elected to take the position that the handbook explanation did not apply to them. Although we generally rely on our independent judgment when we decide questions involving pure statutory interpretation, we have recognized that an agency's interpretation of a law within its area of jurisdiction can help resolve lingering ambiguity, particularly when the agency's interpretation is longstanding. In such cases we have suggested that precedent counsels restraint and directs us to look for "weighty reasons" before substituting our judgment for the agency's. Here, as reflected by its 1991 handbook, the division's interpretation of AS 14.25.110's "first hired" language is longstanding, and so provides additional support for the interpretation the superior court gleaned from the statute's history and purpose. Because the superior court's interpretation conforms with the division's consistent application of the statute, we hold that the superior court correctly rejected the Bart- leys' claim of entitlement to normal — rather than early — retirement. C. Denial of De Novo Hearing The Bartleys raise one additional claim not addressed in the superior court's Decision and Order: they argue that the court erred in denying their request for a trial de novo. We have previously recognized that the decision whether to allow a trial de novo is committed to the superior court's sound discretion. Here, our review of the record reveals no abuse of discretion. As the superior court correctly noted in rejecting the Bartleys' various claims of procedural unfairness, the board gave the Bartleys an ample opportunity to develop and present all their claims. Because we see no procedural deficiency that would have required the superior court to hear new evidence on appeal, we find no abuse of discretion in the superior court's denial of the Bartleys' motion for a de novo hearing. IV. CONCLUSION For these reasons, we REVERSE the board's calculation of the Bartleys' arrearage indebtedness for their prior creditable BIA service and REMAND for recalculation as provided in this opinion; in all other respects, we AFFIRM. APPENDIX IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT ANCHORAGE DECISION AND ORDER ON APPEAL I. INTRODUCTION Coralie Bartley and William Clark Bartley appealed to the Teachers' Retirement Board contending that the Division of Retirement and Benefits (1) had used an incorrect methodology to compute the cost to the Bartleys of purchasing additional retirement benefits based on the Bartleys' prior years of teaching outside of the State Teachers' Retirement System; and (2) had erred in concluding that the Bartleys were not eligible for normal retirement benefits, but only early retirement benefits. The Board affirmed the Division's determinations. The Bartleys now appeal the Board's decision. II. FACTS AND PROCEEDINGS Coralie Bartley and William Clark Bartley (the Bartleys) both taught for the Bureau of Indian Affairs (BIA) in Alaska from 1968 to 1970. They then taught outside of Alaska for a number of years. Beginning in August 1991 and continuing through the end of the school year in 1998, the Bartleys taught for the North Slope Borough School District (the District). They became members of the State Teachers' Retirement System (TRS) when they joined the District in 1991. During the last school year that they taught for the District, the Bartleys both applied to the Division of Retirement and Benefits (the Division) for normal retirement under a retirement incentive program (RIP) made statutorily available for a limited time. The Bartleys believed that their prior Alaska BIA service would permit them to buy additional TRS retirement benefits for their BIA and outside service at a rate calculated under AS 14.26.060(a). Under this statute, the purchase rate is calculated by using 7.0 percent as a base salary multiplier. The Bartleys also believed that after buying in two years of BIA service and at least six years of outside service they would be eligible for normal retirement at their then-current age of 55. The Bartleys first each requested TRS credit for their two years of BIA service. The Division calculated their arrearage indebtedness for that service under AS 14.25.060(d), which uses 8.65 percent as the base salary multiplier. The Bartleys later requested TRS credit for their years of outside teaching service. The Division calculated their arrearage indebtedness for that service using the full actuarial cost method of AS 14.25.060(b). In May 1998, the Division informed the Bartleys that they were not eligible for normal retirement. Instead, under the Division's interpretation of the applicable statutes, the Division determined that the Bart-leys were early retirees. The Bartleys appealed the Division's decision to the Teacher's Retirement Board (the Board). The Bartleys argued that the correct interpretation of the applicable statutes required that their arrearage indebtedness be calculated at 7% for both their BIA and outside teaching, and that the Bartleys were entitled to normal retirement benefits. The Bartleys also contended that they had detrimentally relied on Division representations that they would be eligible for normal retirement. The Board made factual findings and issued a written decision (Decision 99-4). The Board interpreted the applicable statutes in the same manner as the Division with regard to both the arrearage indebtedness and the early retirement issues. The Board also rejected the Bartleys' equitable estoppel claim. The Bartleys appeal to this court from the Board's decision. III. DISCUSSION A. Standards of Review Appellate courts review agency factual findings under the substantial evidence standard and will uphold factual findings if the agency record contains relevant evidence a reasonable person would accept to support them. Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992). Courts use their independent judgment to decide questions of constitutional law and substitute their judgment for that of the agency to decide legal questions not involving agency expertise or fundamental policy choices. Rollins v. State, Dep't of Revenue, 991 P.2d 202, 206 (Alaska 1999); Handley, 838 P.2d at 1233. In contrast, appellate courts review legal issues implicating agency expertise or fundamental policy choices only to ensure that the agency decision was not arbitrary, capricious, or unreaspnable. Bering Straits Coastal Management Program v. Noah, 952 P.2d 737, 741 (Alaska 1998); Handley, 838 P.2d at 1233. The agency's interpretations of its own regulations are subject to review only to ensure the interpretations are reasonable and not arbitrary. Handley, 838 P.2d at 1233; Jager v. State, 537 P.2d 1100, 1107 n. 23 (Alaska 1975). The interpretation of AS 14.25.060 and AS 14.25.110 and the application of these statutes to the Bartleys are not matters that involve agency expertise. Therefore, this court will substitute its judgment in interpreting these statutory provisions. Similarly, "whether equitable estoppel applies [to particular facts] is a question of law not involving agency expertise" that courts answer using their independent judgment. State v. Schnell, 8 P.3d 351, 355 (Alaska 2000); see also Power Constructors, Inc. v. Taylor & Hintze, 960 P.2d 20, 26 (Alaska 1998). On the estoppel issues, deference is due only to the agency's findings of fact. B. Interpreting AS 14..25.060 TRS members may claim retirement credit for military service, Alaska BIA service, or teaching outside Alaska, but must pay TRS "arrearage indebtedness" for the . claimed years. Alaska Statute 14.25.060 establishes several rates for calculating the arrearage indebtedness. Subsection (a) reads in relevant part: If a member first joined the service before July 1, 1990, and has military service or Alaska Bureau of Indian Affairs (BIA) service, or if a member joined the system before July 1, 1978, and has creditable outside service, the member is indebted to the system as follows: (1) At the time of first becoming a member of the system, the arrearage indebtedness is seven percent of the base salary multiplied by the total number of years of creditable outside, military, and Alaska BIA service.... Subsection (d) provides: If a member first joined the system on or after July 1, 1990, and has military service or Alaska BIA service, the member's indebtedness shall be determined under (a) of this section except that the percentage multiplier is 8.65 percent. Also relevant is subsection (b)(1), which provides: If a member joins the system on or after July 1, 1978, and has creditable outside service, the member may claim this service. If claimed, the member is indebted to the system as follows: (1) The arrearage indebtedness is the full actuarial cost of providing benefits for the service being claimed. Compound interest at the rate prescribed by regulation shall be added to the arrearage indebtedness beginning the date the actuarial cost is established to the date of payment or the date of retirement, whichever occurs first. The Bartleys asserted that subsection (a) was applicable to all of their years of non-TRS teaching service — for both the BIA and non-BIA service. The Division rejected this contention. With regard to the BIA service, the Division applied subsection (d). And with regard to the non-BIA outside service, the Division applied subsection (b). The Board affirmed the Division's interpretation. 1. The Bartleys' arrearage indebtedness for their BIA service is properly calculated under AS U.25.060(d). Alaska Statute 14.25.060(a) applies to determine arrearage indebtedness with respect to two types of non-TRS service: (1) military or BIA service when the member "first joined the service before July 1, 1990" and (2) outside service when the TRS member "joined the system before July 1, 1978." This subsection, however, is modified by subsection (d), which raises the percentage multiplier to 8.65 percent for military or BIA service "if a member first joined the system on or after July 1,1990." The history of AS 14.25.060 suggests that subsection (d), with its higher multiplier, was intended to increase the percentage multiplier for arrearage indebtedness applicable to BIA service for members who did not join the TRS until after 1990. In 1977, AS 14.25.060(a) was amended to provide for a multiplier of 7.0 percent to calculate certain arrearage indebtedness: If a member has military service or Alaska Bure'au of Indian Affairs (BIA) service, or if a member joined the system before July 1, 1978, and has creditable outside service. Sec. 3, ch. 128, SLA 1977. That description was retained when the statute was rewritten in 1980. See Sec. 6, eh. 13, SLA 1980. In 1990 the legislature changed 14.25.060(a) to its current language. Simultaneously, the legislature created AS 14.25.060(d): If a member first joined the system on or after July 1, 1990, and has military service or Alaska BIA service, the member's indebtedness shall be determined under (a) of this section except that the percentage multiplier is 8.65 percent. Sec. 3, ch. 97, SLA 1990. The effective date for both changes was July 1, 1990. See Sec. 18, ch. 97, SLA 1990. Historical context suggests that the 1990 revisions continued to require arrearage indebtedness for BIA service to be calculated using a percentage multiplier for members who began their Alaska BIA service before July 1, 1990. But, under AS 14.25.060(d), if the member who performed such service did not join the TRS system until on or after July 1,1990, then the arrearage indebtedness for this Alaska BIA service is calculated using 8.65 percent, rather than 7.0 percent, as the base salary multiplier. The Bartleys joined the TRS system after July 1, 1990 and had BIA service prior to 1990. Alaska Statute 14.25.060(d), enacted in 1990 before the Bartleys joined the TRS system, covers the Bartleys' situation with respect to their BIA service. Because the Bartleys performed the BIA service before 1990 they are entitled to have their arrear-age indebtedness for that service calculated using a percentage multiplier, rather than actuarial cost. But because they did not join the TRS system until after July 1, 1990, the correct multiplier is 8.65 percent. The Board did not err in approving the Division's calculations of the Bartleys' arrearage indebtedness for Alaska BIA service. The Bartleys suggest that they were constitutionally entitled to a calculation using 7.0 percent as the multiplier because that rate was formerly available to all TRS members who had served in the BIA before 1975. But the right to accrued pension benefits, arising from article XII, section 7 of the Alaska Constitution, attaches upon enrollment in TRS. See Flisock v. State, Division of Retirement & Benefits, 818 P.2d 640, 643 (Alaska 1991). The Bartleys are thus constitutionally entitled to have their pension benefits calculated under the law in effect when they joined TRS in 1991, not the law that was in effect when they joined the Alaska' BIA service in 1968. 2. The Division properly calculated the Bartleys' arrearage indebtedness for non-BIA outside service under AS If25.060(b). The Bartleys also contend that the Division erred in calculating their arrearage indebtedness for their non-BIA outside service using the actuarial cost under AS 14.25.060(b). They contend that under AS 14.25.060(a) the Division was required to use the percentage multiplier method to calculate their arrearage indebtedness for all of their prior teaching service — not just the BIA service. They also contend that the Division's actuarial cost calculations were erroneous and that the Division erred by adding interest to their arrearage indebtedness for non-BIA outside service. The Bartleys contend that subsection (a) of AS 14.25.060, which states that "the arrear-age indebtedness is seven percent of the base salary multiplied by the total number of years of creditable outside, military and Alaska BIA service" demonstrates a legislative intent to require aggregation of all service claimed by a member — not just the BIA service. But the language of AS 14.25.060(a)(1) does not warrant such a construction. For members with BIA service predating July 1,1990, only their BIA service constitutes "creditable service" within the meaning of AS 14.25.060(a)(1), or as applicable here, AS 14.24.060(d). Arrearage indebtedness for non-BIA service for members who joined the TRS system on or after July 1, 1978 is established under AS 14.25.060(b), which reads: If a member joins the system on or after July 1, 1978, and has creditable outside service, the member may claim this service. If claimed, the member is indebted to the system as follows: (1) The arrearage indebtedness is the full actuarial cost of providing benefits for the service being claimed. Compound interest at the rate prescribed by regulation shall be added to the arrearage indebtedness beginning the date the actuarial cost is established to the date of payment or the date of retirement, whichever occurs first. The Bartleys' arrearage indebtedness for non-BIA outside service should be calculated at full actuarial cost pursuant to this subsection. The Division had found the actual cost of crediting the Bartleys with their non-BIA outside service to be 20.034% of the average base salary plus interest. Substantial evidence in the record supports the Board's findings. The Division's calculations are consistent with AS 14.25.060(b) and do not, as the Bartleys contend, violate their constitutional rights to retirement benefits under the laws in effect when they joined TRS in 1991. The agency properly calculated the Bartleys' arrearage indebtedness for non-BIA outside service. C. The Bartleys are not eligible for normal retirement under AS H.25.110. While the Bartleys were teaching for the District the legislature passed a retirement incentive program (RIP) that made three years of retirement credit available for a limited time to encourage eligible TRS members to retire. See Ch. 92, SLA 1997; eh. 65, SLA 1996. Participation in the RIP for teachers like the Bartleys was conditioned on their eligibility to retire under AS 14.25.110, which makes different retirement benefits available to TRS members depending on their ages and years of service. Under AS 14.25.110(a) normal retirement benefits are available to a TRS member who meets specified criteria. Under AS 14.25.110(b) lesser early retirement benefits are available to younger TRS members who satisfy certain of the criteria listed in AS 14.25.110(a). The Bartleys assert that they qualified for normal retirement under 14.25.110(a)(1), which provides that normal retirement is available to a member who was first hired before July 1, 1975, has attained the age of 55 years, and has at least 15 years of credited service, the last five of which have been membership service or is otherwise vested in the system[.] (emphasis added) 1. Interpreting "first hired'' On appeal to this court, the Bartleys insist that they were qualified for normal retirement under AS 14.25.110(a)(1) because they were first hired by the BIA before July 1, 1975. The Division and Board both interpreted AS 14.25.110(a)(1) as making normal retirement available only to those teachers first hired before July 1, 1975 by a TRS employer. To resolve this dispute, this court must interpret "first hired," the meaning of which is a question of law not involving agency expertise that the court answers using its independent judgment. Cf. Flisock v. State, Division of Retirement and Benefits, 818 P.2d 640, 642 (Alaska 1991). a. Prior statutory language In the 1960's there was no distinction between normal and early retirement; TRS members were eligible for retirement at age 55 if they had been in membership service for the prior five years and had a total of at least 10 years of membership service and 15 years of creditable service. See Sec. 4, ch. 86, SLA 1963 (amending AS 14.25.110). By 1973, normal retirement was available to 60-year-old teachers with 15 years of creditable service, the last five of which were membership service, but 55-year-old teachers with such records were only eligible for early retirement. See Sec. 8, ch. 66, SLA 1973 (repealing and reenacting AS 14.25.110). In 1974, the governing statute was modified to permit 60-year-old teachers with 8 years of membership service to retire normally, but there was no modification of the retirement requirements for 55-year-olds. See Sec. 2, ch. 57, SLA 1974 (amending AS 14.25.110(a)). The distinction between teachers hired before and after July 1, 1975 originated in legislative changes adopted in 1975. Chapter 173 of the 1975 Session Laws changed AS 14.25.110(a) to read as follows: A teacher is eligible for normal retirement if he has completed either (1) at least 15 years of creditable service, the last five of which have been membership service, except that a member first hired after July 1, 1975 must have eight years of membership service, and has attained the age of 55 years . See Sec. 1, ch. 173, SLA 1975. As a result of these changes, 55-year-old teachers with 15 years of creditable service hired after July 1, 1975 were required to have at least eight years of membership service — three more years of membership service than was required of teachers first hired before July 1, 1975, The statute was again revised in 1980, but retained the requirement of eight years of membership service for normal retirement of 55-year-old teachers hired after July 1,1975: A member is eligible for a normal retirement benefit if he (1) was first hired before July 1, 1975, has at least 15 years of credited service, the last five of which have been membership service; (2) has attained the age of 55 years and has at least eight years of membership service; [or] (3) has attained the age of 55 years, has at least 5 years of membership service, and has at least three years of Alaska BIA service; Sec. 14, ch. 13, SLA 1980. Although the permutations for BIA service shifted slightly during legislative changes in 1986, the lower membership service requirement for teachers first hired before July 1, 1975 endured. See Sec.l, ch. 177, SLA 1986 and Sec.l, ch. 81, SLA 1986. When the minimum normal retirement age for teachers with eight years of membership service increased from 55 years to 60 years in 1990, the legislature retained the provision permitting teachers first hired before July 1, 1975 to retire at age 55 based on fifteen years of credited service, the last five of which were membership service. See Sec. 5, ch. 97, SLA 1990. A second bill passed' in 1990 modified the requirements to AS 14.25.110(a)(1) to permit the normal retirement of 55-year-old teacher's based either on fifteen years of credited service the last five of which were membership service or on being "otherwise vested in the system." See Sec. 1, ch. 79, SLA 1990. b. Interpreting the language in effect when the Bartleys worked for the District as active TRS members Since the 1990 revisions, Alaska Statute 14.25.110(a) has provided that a member is eligible for a normal retirement benefit if the member (1) was first hired before July 1, 1975, has attained the age of 55 years, and has at least 15 years of credited service, the last five of which have been membership service or is otherwise vested in the system[.] The statutory language "first hired before July 1, 1975" thus preserves a historical distinction between teachers hired before and after the effective date of the 1975 legislative revisions. The continued distinction makes sense because teachers who joined the TRS system before that date cannot constitutionally be made subject to subsequent increases in age and length of service requirements. See Flisock v. State, Division of Retirement & Benefits, 818 P.2d 640, 643 (Alaska 1991) (interpreting article XII, section 7 of the Alaska Constitution). AS 14.25.110(a) specifies that "a member is eligible for a normal retirement benefit if the member (1) was first hired before [a certain date] and [satisfies certain service criteria]." The use of the word "member," and the historical and statutory context of AS 14.25.110(a)(1) suggest that the term "first hired" refers to when a member was first hired into the TRS system, and does not refer to the date on which a teacher may have been first hired into other creditable employment. The Bartleys point to other statutes in which the legislature has been more explicit about which employment satisfies time-sensitive hiring requirements. But greater specificity in unrelated statutes does not prove that the legislature intended to interpret "first hired" in this statute to refer to the teacher being first hired into any creditable employment before July 1, 1975. And, contrary to the Bartleys' suggestion, there is no legal or equitable preference favoring a construction of "first hired" that would make normal retirement available to 55-year-old teachers who entered the TRS system toward the end of careers begun elsewhere before 1975. Comparison to other TRS members now eligible for normal retirement — such as those with 25 years of credited service or 20 years of membership service — does not demonstrate that the legislature intended to make TRS members with only 15 years of credited service, 5 in membership service, eligible for normal retirement benefits at age 55 simply because they were first hired into creditable service by a non-TRS employer before July 1,1975. The Bartleys, who did not become TRS members until they were hired by the District in 1991, were not entitled to a normal retirement benefit under AS 14.25.110(a)(1) because they were not "first hired" into the TRS system before July 1,1975. 2. Otherwise vested Alaska Statute 14.25.110(a)(1) provides that normal retirement benefits are available to a member who was first hired before July 1, 1975, has attained the age of 55 years, and has at least 15 years of credited service, the last five of which have been membership service or is otherwise vested in the system [.] (emphasis added) The Bartleys contend that they should qualify for normal retirement under AS 14.25.110(a)(1) because they must be "otherwise vested." They contend that they must have been vested because participation in the RIP was limited to vested TRS members. See Sec. 2, ch. 65, SLA 1996. An active member of TRS is vested if the member has any of the following: (A) 15 years of service, the last five of which have been membership service, for a member first hired before July 1, 1975; (B) eight years of membership service; (C) five years of membership and three years of BIA service; (D) 12 school years of part-time membership service or 12 school years in each of which the member earned either part-time or full-time membership service. AS 14.25.220(42). The Bartleys reason that since they were accepted into the RIP and they do not satisfy vesting criteria (B), (C), or (D), they must have been "first hired before July 1,1975" under subsection (A) and therefore qualify for normal retirement benefits under AS 14.25.110(a)(1). The Bartleys' argument is without merit. At the time of the Bartleys' retirement, AS 14.25.110 required that 55-year-old teachers have at least five years of TRS service and at least three years of BIA service to be entitled to early retirement. Since 2000, early retirement has been available to teachers with at least five years of membership service and Alaska BIA service, which when added to the membership service, will equal at least eight years. See Sec. 7, ch. 68, SLA 2000. The Division may well have designated the Bartleys early retirees based on AS 14.25.110(b) and expansively interpreted former AS 14.25.110(a)(3) in the manner now codified in the 2000 amendment. The Division might also have generously interpreted vesting criteria (C), which is identical for former AS 14.25.110(a)(3), so as to allow the Bartleys to participate in the RIP based on their seven years of membership service and two years of BIA service. There is no indication that the Division considered the Bart-leys to be vested based on having first been hired before July 1, 1975. And if the Division had done so, that error does not constrain this court's independent interpretation of the statutory prerequisites to normal retirement or the vesting criteria. Under a strict construction of the then-existing statute, the Bartleys did not satisfy any of the vesting criteria. Yet the issue is immaterial, because the Bartleys were accepted into the RIP program as early retirees, and received the substantial benefits of that program. The Division's favorable determination to the Bartleys in that regard is not on appeal. Irrespective of that determination, the Bart-leys were not first hired by a TRS employer until 1991 and are not entitled to normal retirement benefits. 3. Estoppel The Bartleys also contend that the Division should be equitably estopped from designating them as early retirees because it did not more clearly and promptly reject their requests for normal retirement. There are four elements to equitable estoppel: "(1) assertion of a position by conduct or word, (2) reasonable reliance thereon, . (3) resulting prejudice" and, when estoppel is claimed against the state, (4) a lack of significant prejudice to the public interest. See Municipality of Anchorage v. Schneider, 685 P.2d 94, 97 (Alaska 1984). The Board noted that the Bartleys received a smaller benefit as early retirees than they would as normal retirees and that granting the Bartleys normal retirement would not significantly prejudice the public interest. But the Board found that when communicating with the Bartleys before their retirement, the Division had never asserted that the Bartleys were entitled to normal retirement. Instead, the Board-found that in its communications with the Bartleys, the Division had recited facts consistent only with early retirement benefits. The Board also found that the Bartleys had ignored the implications of the Division's communications. Ultimately, the Board rejected the Bartleys' estoppel claims because two of the elements — assertion of a position by the Division and reasonable reliance thereon by the Bartleys — were not present. There is substantial support in the record for the Board's findings with respect to whether the Division asserted á contrary position that the Bart-leys reasonably relied upon. In December 1997 the Division informed both Bartleys of their indebtedness for their claimed years of BIA servicé. In February 1998 the Division sent the Bartleys letters acknowledging receipt of their applications to participate in the RIP, stating that they would not be able to retire unless they fully paid their indebtedness for their claimed BIA service, and listing paperwork that the Bart-leys still needed to file. The Division's letter expressly stated that the Bartleys' retirements were subject to their satisfaction of the statutory prerequisites to retirement. In March 1998 the Division sent the Bartleys a letter projecting the price of claimed outside service and asking for written confirmation that they desired to claim the service. The Bartleys wrote the Division requesting fewer years of outside service and suggesting that before recalculating their arrearage the Division should examine AS 14.25.060(d) and 14.25.060(a). In April 1998 the Division sent the Bartleys updated figures and clearly stated that it would calculate their indebtedness for their non-BIA outside service at actuarial cost under AS 14.25.060(b), rather than by using a percentage multiplier, because the Bartleys had not joined TRS until after July 1,1990. In May 1998 the Division responded in writing to questions from the Bartleys regarding calculation of their arrearage indebtedness for outside service and clearly stated that both Bartleys would be considered early retirees. ' The Bartleys note that the Division did not use the words "early retirement" in its prior letters and contend that by accepting their retirement applications the Division impliedly asserted that it -Would find them eligible for normal retirement. But, as Mr. Bartley conceded in his testimony before the Board, the Division had not told the Bartleys whether they would be early or normal retirees. The record contains substantial support for the Board's finding that the Division did not affirmatively assert that the Bartleys were entitled to normal retirement. The Bartleys argue that the Division had a duty to more explicitly inform them that they would not be eligible for normal retirement and that they should not be expected to have divined that the Division would not accept their BIA service as the date for having first been hired for the purposes of AS 14.25.110. But, even if the Division might have more promptly and clearly asserted .that the Bart-leys were not entitled to normal retirement, the Bartleys' estoppel claim must fail because the record, supports the Board's finding that the Bartleys did not actually rely on the Division's representations. As the Board observed in its decision, Mr. Bartley testified that the Bartleys' expectations of normal retirement were based on their own interpretation of legal materials, not on representations made by the Division. Mr. Bartley also testified that he understood early on that the Division interpreted the law differently than he did. Because substantial evidence supports the Board's finding that the Bartleys did not actually rely on an assertion by the Division that they would be eligible for normal retirement, the Bartleys' claim of equitable estop-pel is rejected. 4. RIP credit RIP participants gain eligibility for three additional years of benefit, which are allocated as follows: (1) as years toward age or service requirements for normal retirement; (2) as years toward age and service requirements for early retirement; (3) as years reducing the actuarial adjustment for early retirement; then (4) as years of credited service for calculating retirement benefits. Sec. 2, ch. 65, SLA 1996. In the section of their brief protesting their denied eligibility for normal retirement, the Bartleys also assert that they were not properly granted the full benefit of the RIP program. They claim that the Division's March 19,1998 letters demonstrate that they were not properly given RIP credit and that if the Division insisted on designating them as early retirees, it was required to consider them 58 years old instead of 55. The Division contends that the RIP credit was correctly applied. Since the Bartleys were first hired into the TRS in 1991, normal retirement would not be available to them until age 60. And since the Bartleys were only 55, adding an additional three years would not render them eligible for normal retirement. But under the Division's generous reading of AS 14.25.110(a)(3), the Bart-leys did not need any additional years of age or service to be eligible for early retirement. The Division therefore properly used the three RIP years to lessen the actuarial reduction that would otherwise have been required under AS 14.25.110(j). That practice is in accordance with the priority system of the RIP. D. Good faith and fair dealing The Bartleys contend that duties of good faith and fair dealing implicit in their contracts as public employees were breached by the Division in three ways: (1) interpreting the applicable statutes so as to diminish the Bartleys' retirement benefits; (2) overcharging the Bartleys for their claimed outside service; and (3) failing to properly account for their RIP credit. But, as discussed above, the Division calculated the Bartleys' retirement benefits in accordance with the statutes in effect when the Bartleys joined the TRS system. There has been no violation of the terms of the Bartleys' contracts as public employees. E. Procedural validity of Division regulations Finally, the Bartleys ask this court to hold that the Division's policies and practices with regard to AS 14.25.060 are invalid because they violate statutory provisions governing the implementation of agency regulations, AS 14.25.022 and AS 44.62.030. The Administrative Procedure Act provision that the Bartleys claim has been violated, AS 44.62.030, facially applies to the regulations promulgated by any state agency. But AS 14.25.022 expressly exempts regulations adopted by the Alaska Teachers' Retirement Board from the requirements of the Administrative Procedure Act. Because regulations adopted by the Teachers' Retirement Board are exempted by statute from the requirements of the Administrative Procedure Act, the Bartleys claim that the regulations related to AS 14.25.060 are void for violation of AS 44.62.030 must fail. Alaska Statute 14.25.022 sets forth an alternative set of procedural requirements for regulations promulgated by the Teachers' Retirement Board, including publishing proposed regulations in the Alaska Administrative Register and Code. See AS 14.25.022(b). The Bartleys contend that the Division's practices for interpreting AS 14.25.060 violate AS 14.25.022(b) because they were not properly published. But even assuming that agency regulations related to AS 14.25.060 were not properly published, the Bartleys' benefits were properly calculated in accordance with the underlying statutes. Therefore, this court need not reach the validity of the interpretative regulations. CONCLUSION The decision of the Teachers' Retirement Board is AFFIRMED. Entered at Anchorage, Alaska this 25th day of September 2001. /s/ Sharon Gleason SHARON L. GLEASON Superior Court Judge . AS 14.25.010-.030. . When the superior court acts as an intermediate court of appeal, we review the agency's decision directly. See Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992). Generally, we exercise independent judgment when reviewing issues of statutory interpretation. Union Oil Co. of California v. State, Dep't of Revenue, 560 P.2d 21, 23 (Alaska 1977). But this broad power of review does not necessarily preclude us from deferring to an agency's reading of statutory language. Id. at 25. . AS 14.25.060(a)(1) has since been amended. See ch. 92, § 4, SLA 2004 (substituting "system" for "service"). . AS 14.25.060(a)(1) (emphasis added). . Id. . Id. . AS 14.25.060(d). . AS 14.25.060(a)(1) (emphasis added). . AS 14.25.060(d). . AS 14.25.060(b) & (b)(1). . Alaskans For Efficient Gov't Inc. v. Knowles, 91 P.3d 273, 275 (Alaska 2004) (quoting Ganz v. Alaska Airlines, Inc., 963 P.2d 1015, 1019 (Alaska 1998)). . Specifically, former AS 14.25.060 provided, in relevant part: (a) If a member joined the system before July 1, 1978 and has creditable outside service, or if a member has military service or Alaska Bureau of Indian Affairs (BIA) service, the member is indebted to the retirement fund as follows: (1) At the time of first becoming a member of the system, the arrearage indebtedness is seven per cent of the base salary multiplied by the total number of years of creditable outside, military and Alaska BIA service. Compound interest at the rate prescribed by regulation shall be added to the arrearage indebtedness beginning July 1, 1963, or at the time of first becoming employed as a member, whichever is later, to the date of payment or the date of retirement, whichever occurs first. (b) If a member joins the system on or after July 1, 1978 and has creditable outside service, the member may claim this service. If claimed, the member is indebted to the retirement fund as follows: (1) The arrearage indebtedness is the full actuarial cost of providing benefits for the service being claimed. Compound interest at the rate prescribed by regulation shall be added to the arrearage indebtedness beginning the date the actuarial cost is established to the date of payment or the date of retirement, whichever occurs first. See ch. 128, § 3, SLA 1977, as amended by ch. 13,§ 6, SLA 1980. . Former AS 14.25.060(a)(1) (set out in note 12, above). . Former AS 14.25.060(a). . Former AS 14.25.060(b)(1). . Former AS 14.25.060(b). . Former AS 14.25.060(a)(1). . 1982 Op. Att'y Gen. No. J-66-738-81 (January 4, 1982). . Id. at n. 1 (emphasis added). . Id. (emphasis added). . Ch. 97, § 1, SLA 1990 (amending AS 14.25.050(a) (1970)). . Ch. 97, § 2, 3, SLA 1990. . Ch. 97, § 2, SLA 1990. . Ch. 97, § 3, SLA 1990. . AS 14.25.110(a)(1). . Union Oil Co. v. State, Dep't of Revenue, 560 P.2d 21, 23, 25 (Alaska 1977); cf. 2B Norman J. Singer, Sutherland on Statutes and Statutory Construction § 49:05, at 52-53 (6th ed. 2000) ("Ordinarily, courts should give great weight to the frequent, consistent, and long-standing construction of a statute by an agency charged with its administration, particularly with respect to a statute that is susceptible of two different interpretations."). . Kelly v. Zamarello, 486 P.2d 906, 910-11 (Alaska 1971). See also Bullock v. State, Dep't of Community & Reg'l Affairs, 19 P.3d 1209, 1210 (Alaska 2001) (affirming the superior court's decision, after concluding that "the Department's interpretation is continuous, long-standing, and not arbitrary or capricious"); Nat'l Bank of Alaska v. State, Dep't of Revenue, 642 P.2d 811, 815 (Alaska 1982); State, Dep't of Revenue v. Debenham Elec. Supply Co., 612 P.2d 1001, 1003 n. 6 (Alaska 1980). . For essentially the same reasons, we agree with the superior court's disposition of the Bart-leys' equitable and implied-covenant claims. In addition, we note that the Bartleys' proposed interpretation of the "first hired" provision appears to be textually implausible. Members of the military are rarely "hired" into military service; since militaiy service is a chief component of creditable non-TRS service, it seems unlikely that the legislature would have chosen the term "first hired" to refer generally to all creditable non-TRS service. . State v. Dupere, 721 P.2d 638 (Alaska 1986) (stating that claimants against the state do not have a right to trial de novo, but Appellate Rule 609 gives the superior court discretion to order a trial de novo). . The Bartleys also contend that the Division violated their due process rights by failing to disclose the methods it used to determine the actuarial cost of their non-BIA outside service, but the Bartleys do not cite any legal authority in support of their argument and have therefore waived the issue. Cf. Wernberg v. Matanuska Elec. Assn, 494 P.2d 790, 794 (Alaska 1972).

11443664

In the Matter of S.H.

In re S.H.

2002-08-09

No. S-9633

780

784

54 P.3d 780

54

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:27:54.967740+00:00

CAP

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

In the Matter of S.H.

In the Matter of S.H. No. S-9633. Supreme Court of Alaska. Aug. 9, 2002. Rehearing Denied Oct. 8, 2002. Phillip Paul Weidner, Weidner & Associates, Inc., Anchorage, for Appellant. Thomas V. Van Flein, Clapp, Peterson & Stowers, LLC, Anchorage, for Clapp, Peterson & Stowers. Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, and CARPENETI, Justices.

1959

12151

OPINION CARPENETI, Justice. I. INTRODUCTION SH. was adjudged to be in need of a special conservator in 1997 regarding litigation he was pursuing against Anchorage Refuse,; Inc. After we affirmed the appointment of a conservator in 1999, S.H.'s conservator moved to finalize a settlement entered into in 1997. At that time, S.H. petitioned the superior court to terminate the conservatorship, claiming that he was competent to manage his affairs. The superior court denied the petition to terminate, entered the settlement, and dismissed S.H.'s litigation against Anchorage Refuse. S.H. appeals the superior court's refusal to hold a hearing on the need for a conservatorship and its refusal to void the actions of the conservator settling the Anchorage Refuse litigation. Because the conservator entered into the settlement in 1997 and our decision in S.H. I was a ratification of that settlement, we affirm the superi- or court's entry of settlement and dismissal of the litigation. II. FACTS AND PROCEEDINGS This case is before us for a second time. It concerns the superior court's actions following our remand in In re S.H. (S.H.I.). A. In re S.H. After working at Anchorage Refuse, Inc. (ARI) from 1991 to 1998, SH. sued ARI in April 1995 alleging, among other things, that his fellow employees sadistically mistreated him. His attorneys in that action were from the law firm of Clapp, Peterson, & Stowers (CPS) Between May 1995 and December 1996, CPS attorneys Mareus Clapp and Thomas V. Van Flein grew uneasy with S.H.'s increasing obsession with the case SH. began showing signs of instability, "including irrational behavior, paranoia, inclinations toward gratuitous dismissal of his personal injury suit, a tendency to threaten his own witnesses, the desire to initiate direct and inappropriate dealings with opposition counsel and the judge, and a marked lack of confidentiality." In 1996 and 1997 psychiatric experts examined S.H. in connection with the ARI litigation and because CPS was concerned with S.H.'s The majority of these doe-tors concluded that S.H. had a mental impairment that made him unable to think rationally at times. Only one doctor found S.H. to be capable of dealing rationally with the settlement proceedings. Mediation between S.H. and ARI began in December 1996, and led to a $500,000 settlement offer by ARIS S.H. refused to accept the offer, however, believing his case was worth $2 million. CPS then filed a "Petition for Appointment of Limited Conservator/Guardian Ad Litem of a Person" due to its belief that SH. was incapable of handling his affairs. Superior Court Judge Karen L. Hunt appointed Ernest Schlereth to act as S.H.'s attorney in the conservatorship/guard-ianship proceeding on December 30. In March 1997 Phillip Paul Weidner replaced Schlereth as S.H.'s attorney in the conserva-torship/guardianship proceeding. Master Andrew Brown commenced a hearing on the conservatorship/guardianship petition in July 1997, at which time S.H. requested a jury trial. Master Brown denied the request for a jury trial and issued his report in August after a three-day hearing. He recommended that a special conservator be appointed to act on S.H.'s behalf for the purposes of the ARI litigation and that the costs of that conservator be imposed on CPS. The superior court adopted Master Brown's recommendation and appointed Paul Cossman as S.H.'s special conservator. After reviewing S.H.'s case against ARI, Coss-man concluded that it was in S.H.'s best interests to accept the $500,000 settlement offer and approved the settlement. The settlement funds were placed in the court registry in order to allow S.H. to appeal the decision to appoint a special conservator and CPS to eross-appeal the imposition of the conservator's costs on CPS. In August 1999 we decided S.H. I. We held that a conservator has the authority to settle a lawsuit; that the court properly considered S.H.'s "ability to make litigation-related decisions, as opposed to his ability to make a rational decision in general"; and that an inability to manage one's property need not be long-term to justify a conservatorship. We further held that the conservator has the authority to waive the protected person's jury trial rights, reasoning that otherwise, the protected person, who had "already [been] deemed incapable in the law's eyes," would retain control of the case. Regard ing S.H.'s request for a jury trial on the conservatorship/guardianship petition, we held that his request, coming more than twenty days after service of the first pleading , and not before the first hearing, was untimely under Alaska Probate Rule 11. Finally, we held that it was improper to impose the costs of the conservatorship on CPS and remanded the case to the superior court to impose those costs in accordance with AS 13.26.230. B. On Remand Judge Hunt conducted the remand hearing on October 7, 1999. On the remanded cost issue, she directed CPS to file a proposed order imposing the conservatorship costs on S.H., and indicated that she would refer the case back to the probate master, who had handled the conservatorship, for all further proceedings. At this time, Weidner indicated that SH. was fully competent to handle the ARI litigation. CPS filed stipulations for dismissal with prejudice and to distribute settlement funds that same day. Prior to the hearing before the probate master, S.H. filed a demand for jury trial and an objection to the stipulations for dismissal with prejudice and distribution of settlement funds filed by CPS, Cossman, and ARI. At the hearing on October 27, 1999, Master Brown indicated that his responsibilities were limited, by our remand instructions, to the imposition of conservatorship costs. He approved the costs submitted by CPS and Cossman and told S.H. that, if he wished to change the conservatorship order, he needed to file a written motion. In November 1999 S.H. filed an objection to Master Brown's failure to address his objections to the stipulations entered into by CPS, Cossman, and ARI. S.H. also filed a motion that month to set aside the conserva-torship and to void the conservator's decisions. Judge Hunt denied the motion to set aside the conservatorship and issued an order imposing the conservator's costs on S.H. and reaffirming the conservator's authority to settle the ARI litigation. As the ARI litigation was settled and an order of dismissal was signed by Superior Court Judge Peter A. Michalski in November 1999, CPS refiled the stipulation for the distribution of settlement proceeds in March 2000. In April, Judge Hunt signed the order distributing settlement funds and terminating the appointment of the conservator. S.H. appeals. III. STANDARD OF REVIEW [1-4] We apply our independent judgment to questions of statutory interpretation. In interpreting statutes, we look to the meaning of the language, the legislative history, and the purpose of the statute in question." Whether a trial court acted inconsistently with our mandate is a question of law. We "adopt the rule of law that is most persuasive in light of precedent, reason and policy." IV. DISCUSSION A. Weidner Has the Authority To Act as S.H.'s Counsel in this Appeal. CPS argues that SH. I granted S.H.'s conservator the authority to make litigation decisions on S.H.'s behalf. It contends that, because Weidner never obtained the approval of the conservator to file the present action, the appeal should be dismissed. S.H. responds that Weidner's representation is proper and protected by the conservatorship statutes. CPS cites In re Conservatorship of Nelsen as support for its argument that Weid- ner has no authority to represent S.H. In Nelsen, the Minnesota court of appeals held that the conservatee could not contractually retain an attorney without the approval of either the conservator or the court. This reasoning, CPS argues, should apply to the instant case. The court in Nelsen, however, based its decision on the conservatorship order, which required the conservator to approve any contract, except for necessities, which the con-servatee might make. The order appointing S.H.'s conservator was not as broad as the order in Nelson. Rather than granting the conservator authority over all contracts, S.H.'s conservator was only given the authority to make "all necessary decisions on [S.H.'s] behalf in the ARI Case, including but not limited to accepting a settlement offer in the ARI Case or proceeding to trial with that litigation." Given the more limited nature of S.H.'s conservatorship, Nelsen does not apply. Furthermore, AS 18.26.195 grants a prospective protected person the right to counsel in the conservatorship proceedings. Weidner is S.H.'s counsel under this statute, having substituted in for the original counsel appointed for S.H. by the court. While Weidner could not take part in any aspect of the ARI litigation, he is properly representing S.H. in the probate proceedings, including S.H.'s petition to terminate the conserva-torship and this appeal. B. SH. I Controls this Case. S.H. argues that the conservator did not have the authority to settle the case with CPS and ARI, as he petitioned for termination of his conservatorship. SH. further argues that the superior court erred in granting the order for distribution of settlement funds and terminating the appointment of the conservator. In 1997 the special conservator stated that it was in S.H.'s best interest to accept the settlement offer of $500,000 and that S.H.'s chances of recovering a judgment in excess of that offer were "basically nonexistent." Accordingly, the conservator approved the settlement on behalf of S.H. The conservator, CPS, and ARI then "stipulated to interplead the settlement funds." The settlement monies were deposited with the court registry and awaited distribution pending S.H.'s appeal to this court. Our decision upholding the appointment of a conservator and ratifying his authority to enter into the settlement with ARI was announced in August 1999. On October 7, 1999 the special conservator and CPS filed a stipulation for distribution of settlement funds. That same day, SH. petitioned to have the conservatorship revoked. However, as the settlement had been entered into in 1997, S.H.'s claim had already been disposed of by the conservator. When this court upheld the conservatorship, the settlement funds in the court registry became S.H.'s. As such, with the distribution of funds, SH. no longer bad an interest in the ARI litigation and the conservatorship was to end by the order of the appointment. vy, CONCLUSION Because S.H.'s claims were settled by the conservator in 1997 prior to his petition for termination, the superior court did not err in failing to hold a hearing on S.H.'s petition. Accordingly, we AFFIRM the decisions of the superior court. BRYNER, Justice, not participating. . 987 P.2d 735 (Alaska 1999). . Id. at 737. SH. also named individual ARI officers and employees in that suit. I4. . Id. . 1d. , Id. (internal footnotes omitted). . Id. . Id. at 73, 8. . 14. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . Id. . 1:11. . Id. . Id. . Id. at 739-40 (internal quotation marks omitted). . Id. at 741. . Id. at 742. . Id. . Alderman v. Iditarod Props., Inc., 32 P.3d 373, 380 (Alaska 2001). . Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787 (Alaska 1996). . Gaudiane v. Lundgren, 754 P.2d 742, 744 (Alaska 1988). . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). . 587 NW.2d 649 (Minn.App.1999). . Id. at 650. . Id. at 651. . AS 13.26.195(b) states in part: "Unless the person to be protected has counsel of the person's own choice, the court must appoint a lawyer to represent the person who then has the power and duties of a guardian ad litem." . S.H. I, 987 P.2d at 738. . Id. . Id.

11441637

Lynn E. LACEY, Appellant, v. STATE of Alaska, Appellee

Lacey v. State

2002-09-06

No. A-7883

304

312

54 P.3d 304

54

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T18:27:54.967740+00:00

CAP

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

Lynn E. LACEY, Appellant, v. STATE of Alaska, Appellee.

Lynn E. LACEY, Appellant, v. STATE of Alaska, Appellee. No. A-7883. Court of Appeals of Alaska. Sept. 6, 2002. Kathleen A. Murphy, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant. Kim S. Stone, 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.

4743

28560

OPINION MANNHEIMER, Judge. Lynn E. Lacey absconded from the Palmer Correctional Center on September 15, 1998, shortly before he was to have been transferred to a private prison in Arizona. Lacey lived as a fugitive for the next thirteen months. Using the alias "Allen Mitchell", he obtained a new driver's license and forged a new life in the Trapper Creek area. He obtained employment, attended church, pur chased three vehicles, and was preparing to buy property in a new subdivision when he was arrested in October 1999. Following Lacey's arrest, he was indicted for second-degree escape. His proposed defense was necessity. Lacey's attorney asserted that, on the day before Lacey ab-seconded, a fellow inmate told Lacey that he would be killed as soon as he was transferred to the Arizona prison-thus prompting Lacey to escape from prison to preserve his life. Superior Court Judge Eric Smith considered Lacey's offer of proof and concluded that it was deficient in two respects. First, Lacey never informed the prison authorities of the alleged threat and never tried to obtain their help and protection. Judge Smith therefore ruled that Lacey had failed to present a prima facie case that he had no reasonable alternative to absconding from prison. Second, escape from prison is a continuing offense. Even assuming that Lacey's initial escape from prison might have been justified, Lacey remained a fugitive for more than a year. During this time, he concededly did not contact the authorities or ask a lawyer (or any other person) to assist him in negotiating with the authorities Judge Smith therefore ruled that Lacey had failed to present a prima facie ease that he had no reasonable alternative to remaining a fugitive. For these two reasons, Judge Smith concluded that Lacey was not entitled to present a necessity defense to the jury. The main question presented in this appeal is whether Lacey's offer of proof was sufficient to establish a prima facie case of necessity-whether it constituted the "some evidence" of necessity that is required under AS 11.81.320(b) and AS 11.81.900(b)(2)(A) before a defendant is entitled to a jury instruction on this issue. We agree with Judge Smith's analysis of Lacey's offer of proof, and we therefore uphold his ruling. Before we discuss this issue, we will address a separate point that Lacey raises in this appeal: Judge Smith's purported failure to grant Lacey's request for a continuance of trial. Judge Smith's purported failure to grant a continuance of trial Just before jury selection was scheduled to begin-and before Judge Smith ruled that Lacey's proposed necessity defense was not available-Lacey's attorney asked Judge Smith to delay the trial so that the defense could track down a witness: the inmate who allegedly had threatened Lacey. Lacey's attorney admitted that they did not know where this man was, but she told Judge Smith that they were trying to locate him through Department of Corrections records. In response, Judge Smith noted that Lacey's trial was going to be interrupted for a week anyway (because of other matters already scheduled). Thus, even if the court denied the requested continuance, Lacey's attorney would still have two weeks to find her witness before the State rested its case. Judge Smith declared that, given this scheduling situation, "we can sort of have our cake and eat it, too". In other words, jury selection could commence as scheduled, but the defense attorney would effectively receive the benefit of a continuance. Lacey's attorney did not argue that two weeks was insufficient, nor did she otherwise object to Judge Smith's suggested solution of the witness problem. Her only response was, "So we'd start [Jury selection] tomorrow?" Later, Lacey waived his right to a jury trial and consented to a bench trial As a result, the State's case ended earlier than anticipated. At this point, Lacey's attorney expressed reluctance to begin her case; she implied that she was not ready to proceed because "we were [not] supposed to [begin] our defense [until] next week". Judge Smith conceded that he "[had] thought [that the State's] case would take longer". He told Lacey's attorney that, "if need be, we will continue [this trial] until a week from Monday, so you can find this [witness] regarding the threat". However, Judge Smith also noted that the missing witness's testimony was probably not necessary-because the judge had already accepted the defense offer of proof that La cey had been threatened. He told the defense attorney, "[There is no} need [for] you to confirm evidence that you've presented through your offer of proof." (This issue of Lacey's proposed defense of necessity and his accompanying offer of proof is explained more fully later in this opinion.) Judge Smith offered to recess Lacey's trial for a day so that the defense attorney could confer with Lacey, both about this matter and the related issue of whether Lacey should take the stand. The defense attorney responded, "[That would be a good idea." The next day, when court reconvened, the defense attorney told Judge Smith that she intended to rest her case without presenting any more evidence. Given this record, we conclude that Lacey failed to preserve his claim of a denied continuance. Moreover, any error would be harmless. Even if this missing witness had been located, and even if he had waived his Fifth Amendment privilege and testified that he had threatened Lacey, this would only corroborate the assertions of fact contained in Lacey's offer of proof. And, as we discuss in the next section, this offer of proof was insufficient to establish a prima facie case of necessity. The law of necessity as it applies to escapes from prison Under AS 11.81.320(a), Alaska law recognizes the defense of necessity "to the extent permitted by common law". As used in this statute, the term "common law" refers to "the evolution of [the] law through court decisions". Thus, the definition of the necessity defense "is not limited to the state of the law at any particular time in the past". Rather, the legislature intended "to give the courts the power to define the specifics of the defense of necessity in Alaska". The necessity defense is premised on the concept that it is sometimes necessary to break the law in order to prevent a worse evil. As defined in our case law, the necessity defense comprises three basic elements: (1) the defendant must have violated the law to prevent a significant evil, (2) there must have been no adequate alternative method to prevent this evil, and (8) the harm caused by the defendant's violation of the law must not have been disproportionate to the foreseeable harm that the defendant was trying to avoid. In Wells v. State, 687 P.2d 346 (Alaska App.1984), we elaborated this definition, explaining how these three basic elements should be interpreted when necessity is raised as a defense to an escape from prison. First, we held that escape is a continuing offense. That is, offenders who ab-second from custody continue to commit escape for as long as they remain away from custody. Second, because escape is a continuing offense, we held that "[a]) defendant relying on necessity to justify an escape must present some evidence justifying his continued absence from custody as well as his initial departure". Next, we explained how the second basic element of necessity-the lack of an adequate alternative to breaking the law-should be interpreted in escape cases. The defendant in Wells claimed that his initial escape from prison was justified because prison officials failed to give him adequate medical attention and also neglected his need for psychological counseling. We flatly held that such evidence, even if believed, "was insufficient as a matter of law to raise a necessity defense". The Wells opinion does not directly explain this legal conclusion, but the holding appears to be based on the interpretation of the necessity defense announced by the California Court of Appeal in People v. Lovercamp, 43 Cal.App.3d 823, 118 Cal.Rptr. 110 (1974). The California court's analysis is quoted in footnote 2 of Wells. Under this interpretation of the necessity defense, prisoners relying on necessity to justify an escape from custody must offer evidence that either (1) there was no time to seek a remedy through the prison administration or the courts, or (2) the prisoner had made similar requests or complaints in the past, and these had proved futile. In Wells the defendant offered no evidence to show that he had sought administrative or judicial remedies for the alleged lack of medical care. Thus, the fact that he may have actually needed better medical care was, as a matter of law, not sufficient to establish a prima facie case for a necessity defense. The defendant in Wells also offered evidence that he had been threatened by fellow prisoners after he revealed their plan to steal some marijuana. We held that this evidence was likewise insufficient, as a matter of law, to raise the issue of necessity. We reached this conclusion because (1) Wells failed to offer evidence that he had "tried unsuccessfully to obtain protection within the institution" and, additionally, because (2) Wells failed to offer evidence that he "turned himself in after obtaining his freedom" or that he "could justify his continuing absence" from custody. Employing the rules of law announced in Wells, we now analyze Lacey's case. Lacey failed to offer sufficient evidence to raise the issue of necessity Before a defendant is legally entitled to argue the defense of necessity (or any other defense defined in the Alaska criminal code) to the trier of fact, the defendant must present "some evidence" to put the matter at issue. In this context, "some evidence" is a term of art; it means evidence which, if viewed in the light most favorable to the defendant, is sufficient to allow a reasonable juror to find in the defendant's favor on each element of the defense. As explained above, one of the three basic elements of the necessity defense is that the defendant had no adequate alternative to breaking the law. From the very beginning, Lacey's attorney admitted that Lacey's case was "weak" on this element. The defense attorney conceded that Lacey "could have gone to [prison] counselors about the death threat", but she asserted that Lacey had not done this because he suspected that the counselors would not believe him. (Lacey had just litigated and lost an administrative appeal of the decision to transfer him to Arizona. Lacey had opposed the transfer for personal reasons unrelated to his safety. Having lost this appeal, Lacey apparently suspected that prison officials would not believe him if, on the day scheduled for his transfer, he told the officials that he had just been threatened with death if he went to Arizona.) In addition to the issue of whether Lacey availed himself of administrative procedures for seeking help and protection before he absconded from prison, Judge Smith noted that Wells requires a defendant to offer evidence to justify his continued absence from custody. When the judge asked Lacey's at torney to state her offer of proof on this issue, she replied: Defense Attorney: He stayed away because he . didn't know what else to do. He was always looking for a way to . deal with the situation. He was trying to get a lawyer. He was trying to find a way to make some money to get a lawyer, to go in with a lawyer and explain what had happened and ask what to do then.... There is some support for everything that Mr. Lacey says.... And we can bring out what little bit there is through cross-examination. Mr. Lacey also is prepared to take the stand and describe his feelings. After hearing this offer of proof, Judge Smith told the defense attorney that he would proceed under the assumption that Lacey was willing to take the stand and that Lacey's testimony would corroborate every assertion of fact in the offer of proof. Judge Smith also assured the defense attorney that he understood that his role was to assess the offer of proof in the light most favorable to Lacey, and that the credibility of Lacey's explanation was not at issue. Rather, the issue was whether Lacey's offer of proof was sufficient to establish a prima facie case of necessity-whether the assertions of fact contained in the offer of proof, if believed and viewed in the light most favorable to Lacey, were sufficient to support a finding in Lacey's favor on each element of the necessity defense. Judge Smith then ruled that, based on our decision in Wells, Lacey's offer of proof was insufficient for two reasons. First, even assuming that Lacey was threatened and that he had good reason to suspect that he would suffer injury or death if he went to Arizona, Lacey was nevertheless obliged to seek the help and protection of prison officials. Judge Smith accepted Lacey's assertion that he believed it would be futile to ask prison officials for help, but the judge ruled that Lacey's subjective belief did not excuse him from pursuing this lawful alternative to escape. On this point, Judge Smith relied on this Court's decision in Gerlach v. State, 699 P.2d 358 (Alaska App.1985). The defendant in Gerlach was a non-custodial parent who absconded with her child because of her fear that the child was being mistreated or neglected. Gerlach hid with the child for more than a year before she was found and arrested. After Gerlach was indicted for custodial interference, she raised the defense of necessity. She contended that she had stolen the child rather than seeking court intervention because she feared that she did not have enough money to adequately finance litigation and because she suspected that the judge assigned to the custody case was prejudiced against her. We held that, as a matter of law, Gerlach's subjective belief about the futility of litigation was insufficient to raise a necessity defense. We stated, "[A] person cannot be permitted to ignore [available remedial] procedures and rely on self-help simply because he or she distrusts lawyers, judges, and social workers. Lacey's case. Judge Smith applied this same rule to He concluded that even if Lacey was threatened as he asserted in his offer of proof, Lacey was still obliged to pursue the remedial procedures available to him, even if he suspected that prison officials might view his claim with skepticism. Judge Smith also ruled that Lacey's offer of proof was deficient because, even if Lacey's initial decision to escape was arguably justified, Lacey failed to offer a justification for his ensuing thirteen-month absence from custody. Judge Smith noted that Lacey had not contacted prison authorities or any other government official during these thirteen months to explain his problem and seek a resolution of his situation. The judge further noted that Lacey had not contacted any attorney to help him in approaching the authorities. Although Lacey claimed that he always intended to contact an attorney as soon as he had accumulated sufficient money to retain one, Judge Smith pointed out that Lacey did not need a large amount of money to initiate this process, since most attorneys are willing to hold an initial consultation with a prospective client for a nominal fee. In other words, Lacey had not even taken the first step of contacting an attorney to ascertain how much the legal representation would cost. After outlining these deficiencies in Lacey's offer of proof, Judge Smith clarified that he accepted (for purposes of the offer of proof) Lacey's assertion that he subjectively believed that these approaches would be a waste of time. But based on Wells and Gerlach, Judge Smith concluded that the question did not turn on Lacey's subjective belief concerning the efficacy of these alternatives. Rather, the question turned on whether these alternatives were legally adequate and reasonably available. Accordingly, Judge Smith ruled that Lacey's offer of proof was insufficient to raise the defense of necessity. On appeal, Lacey contends that his offer of proof was sufficient to raise the defense. In his brief, Lacey claims that he did in fact present some evidence to justify a reasonable conclusion that it would have been futile for Lacey to seek the help or protection of prison officials as an alternative to running away from prison. Lacey asserts that, prior to the death threat he received on the eve of his transfer to Arizona, he had been harassed several times in prison, and prison officials did not always act to protect him. But Lacey never presented this assertion to Judge Smith. In his brief to this Court, Lacey cites page 29 of the transeript for his assertion that prison officials had been indifferent to the prior harassment. But this page of the transcript reveals that Lacey's attorney told Judge Smith only the following: "For a period of time, [Lacey had] been harassed and baited and had suffered a lot of that kind of behavior from other inmates, but he was coping with that." In other words, the attorney did not tell Judge Smith that Lacey had asked prison officials to intervene or that prison officials had been indifferent to Lacey's safety or well-being. We must evaluate Judge Smith's ruling based on the offer of proof that Lacey made in the superior court. Lacey also argues that he subjectively believed that "a conspiracy was afoot"-i.e., that prison officials actively wished to see him harmed and that this was their motivation for sending him to Arizona. But, as we held in Gerlach, a defendant's subjective distrust of government officials is not a valid reason for failing to pursue legal avenues of relief Moreover, even if Lacey had had objective reasons for concluding that prison officials were conspiring to harm him, this would not justify his decision to remain a fugitive for thirteen months without contacting the Alaska State Troopers, the Alaska Department of Law, or some other government official. Finally, Lacey reiterates his claim that he was trying to save enough money to hire a lawyer to help him negotiate with the authorities. But, as Judge Smith noted, Lacey never took even the first step of contacting a lawyer for an initial consultation (or of contacting the Public Defender Agency, which he could have done for free). We therefore agree with Judge Smith that Lacey failed to present sufficient evidence to raise a jury issue on two elements of his proposed necessity defense. Lacey failed to offer a legitimate reason for failing to pursue available administrative remedies before absconding from prison, and he failed to offer a legitimate justification for his decision to remain a fugitive for thirteen months. We emphasize that, had Lacey offered "some evidence" on these two elements-4.e., evidence sufficient to support a finding in Lacey's favor on these elements-then it would have been up to the jury to decide the credibility of that evidence. We affirm Judge Smith's ruling because we agree with him that even if we accept as true all the assertions of fact contained in Lacey's offer of proof, those assertions are not sufficient to support a finding in Lacey's favor on these two elements of the necessity defense. Judge Smith did not clearly err when he concluded that Lacey had failed to prove maitigator (d)(8) by clear and convincing evidence Lacey's offense, second-degree escape, is a class B felony. Because Lacey was a third felony offender, he was subject to a 6-year presumptive term. At sentencing, Lacey contended that his presumptive term should be mitigated under AS 12.55.155(d)(8)-4.e., that his offense "Iwas! committed . under some degree of duress, coercion, threat, or compulsion insufficient to constitute a complete defense, but which significantly affected the defendant's conduct". The litigation of this issue actually began five months earlier, at Lacey's trial, when Lacey proposed his necessity defense. Even though Judge Smith concluded that Lacey had failed to make a sufficient offer of proof to justify a necessity defense, the judge told Lacey that the assertions of fact contained in his offer of proof were conceivably relevant to mitigating Lacey's sentence-but only if Lacey presented evidence to support these assertions, either at trial or at sentencing. In fact, after Lacey elected to proceed with a bench trial, Judge Smith invited the defense attorney to use the trial as a vehicle for presenting her witnesses concerning any threats made to Lacey and Lacey's perception of how he should deal with those threats. Judge Smith told the defense attorney that this was a matter of administrative convenience: the judge could mentally separate this evidence from the evidence bearing on Lacey's guilt or innocence, and presentation of this evidence at trial would simplify or shorten the sentencing hearing. Despite this invitation, Lacey chose not to testify at trial and his attorney presented no other witnesses on these issues. Nor did Lacey take the stand or present other evidence at his sentencing hearing. In fact, when Lacey's attorney presented her argument in favor of the proposed mitigating factor of duress, threat, or compulsion, she did not rely on any purported threat to Lacey's life. Instead, she relied on lesser acts of harassment that Lacey had suffered at the hands of fellow inmates: Defense Attorney: [Elven if the court didn't find that Mr. Lacey's life was threatened, there certainly was evidence that he had been harassed.... [TJhere was an incident where Mr. Lacey was squirted in the face with some cleanser [by an inmate named] MecNaulty. He [also] was antagonized by a man named Sweeney.... [And] Corrections Officer Bowers said that [Lacey] was harassed-that he didn't think it was anything out of the ordinary, but he did confirm that he was harassed. Also, . Lyon Davids [testified that] she would be on the telephone with him, and she would hear shouting and catealls while she was on the telephone. So, whether or not that amounted to a defense [to the crime of esceapel, it certainly did show some degree of duress or coercion. Judge Smith found that Lacey had failed to prove this mitigator. He declared that he was rejecting the proposed mitigator for the same reason that he rejected Lacey's offer of proof regarding necessity: Lacey had done nothing to pursue available administrative remedies to alleviate the problems he faced in prison. On appeal, Lacey challenges Judge Smith's rejection of this proposed mitigator. But Lacey's primary argument is that he received a death threat, that this threat motivated his escape, and that therefore his offense was mitigated under AS 12.55.155(d)(8). As explained above, Lacey presented no evidence that he had been subjected to death threats, nor did his attorney rely on this theory when she argued the proposed miti-gator at the sentencing hearing. There was evidence that Lacey was subjected to lesser acts of harassment by his fellow inmates, but the question is whether this lesser harassment mitigated Lacey's culpability for absconding from prison under AS 12.55.155(d)(8). As we noted in Bynum v. State, mitigator (d)(3) requires proof of duress, threat, or compulsion "sufficiently extraordinary in nature that it approaches being a defense to the crime". We conclude that Judge Smith did not clearly err when he found that Lacey's evidence did not establish mitigator (d)(8) by clear and convincing evidence. Conclusion The judgement of the superior court is AFFIRMED. COATS, C.J., dissented. . AS 11.56.310(a)(1)(A). . Wells v. State, 687 P.2d 346, 348 (Alaska App.1984). . Wells, 687 P.2d at 349. . See Wayne R. LaFave and Austin W. Scott, Jr., Substantive Criminal Law (1986), § 5.4, Vol. 1, p. 629. . See Cleveland v. Anchorage, 631 P.2d 1073, 1078 (Alaska 1981). . See Wells, 687 P.2d at 350. . Id. . See id. . Id. at 351. . See id., 687 P.2d at 347 n. 2. But compare the seemingly contradictory statements in footnotes 3 and 4. . See id. at 351. . Id. . See AS 11.81.900(b)(2)(A) (governing affirmative defenses, ice., defenses on which the defendant bears the burden of proof) and AS 11.81.900(b)(18)(4) (governing normal defenses). . See Ha v. State, 892 P.2d 184, 190 (Alaska App.1995) (the evidence must be sufficient to establish each element of the proposed defense); Paul v. State, 655 P.2d 772, 775 (Alaska App. 1982) (the evidence, viewed in the light most favorable to the defendant, must be sufficient to warrant a reasonable juror's finding in the defendant's favor on the proposed defense). . Id. at 359. . Id. at 359-360. . Id. at 363. . AS 11.56.310(b). . AS 12.55.125(d)(2). . 708 P.2d 1293, 1294 (Alaska App.1985). . See Lepley v. State, 807 P.2d 1095, 1099 n. 1 (Alaska App.1991) (a sentencing judge's findings as to the existence of aggravating and mitigating factors are reviewed under the "clearly erroneous" standard).

6905943

Michael L. RAE, Appellant, v. STATE of Alaska, Appellee

Rae v. State

2014-11-21

No. A-11274

961

965

338 P.3d 961

338

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T18:25:58.282102+00:00

CAP

Before: MANNHEIMER, Chief Judge, ALLARD, Judge, and HANLEY, District Court Judge.

Michael L. RAE, Appellant, v. STATE of Alaska, Appellee.

Michael L. RAE, Appellant, v. STATE of Alaska, Appellee. No. A-11274. Court of Appeals of Alaska. Nov. 21, 2014. Jane B. Martinez, Anchorage, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Ger-aghty, Attorney General, Juneau, for the Ap-pellee. Before: MANNHEIMER, Chief Judge, ALLARD, Judge, and HANLEY, District Court Judge. Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).

2050

12560

OPINION MANNHEIMER, Judge. Michael L. Rae appeals his convictions for first-degree vehicle theft, second-degree burglary, third-degree criminal mischief, and third-degree theft. The State's case was based on allegations that Rae stole a truck, then used it to crash into the side of a store and steal a large amount of beer (six 12-packs, a case of twenty-four, and two 5-gallon kegs). Rae contends that his indictment was tainted by the introduction of inadmissible evidence at the grand jury. He also contends that the State failed to produce sufficient evidence at his trial to establish that he was the perpetrator of these crimes. For the reasons explained in this opinion, we conclude that neither of Rae's claims has merit, and we therefore affirm his convictions. Underlying facts When a defendant challenges the sufficiency of the evidence to support a criminal conviction, we must view the evidence (and all reasonable inferences to be drawn from it) in the light most favorable to the jury's decision. We therefore present the evidence in Rae's case in that light. In the early morning hours of April 29, 2011, a break-in and theft occurred at the gift shop of the Alaskan Brewing Company in Juneau. Thomas West, a company employee, arrived at work shortly before 4:00 a.m. When he arrived, West noticed a truck parked nearby with the name of a local market, "Breeze-In", stenciled on its side. After a short while, West saw this truck drive past him slowly. West found this unusual because he did not normally see the Breeze-In truck in that location, nor being driven at that time of day. A little later, West discovered the bumper of a vehicle on the sidewalk in front of the Alaskan Brewing Company gift shop, and he saw that the gift shop doorway had been smashed in. Six 12-packs of beer, one full case of beer, and two 5-gallon kegs of beer were missing from the gift shop. About 80 minutes later (at 4:85 am.), a resident of a local mobile home park, John McGillis, saw the Breeze-In truck pull up in front of trailer number 46. Rae was driving the truck. (McGillis knew Rae because they had lived together for two weeks.) McGillis watched as, over the next ten minutes, Rae unloaded kegs and packs of beer from the truck. After unloading the beer, Rae got back into the Breeze-In truck and sped away. About fifteen minutes later, McGillis saw Rae return to the mobile home park on foot. Later that morning, the Juneau police found the Breeze-In truck. It was damaged, and its front bumper was missing. | Detective Krag Campbell took up the investigation of this occurrence. Campbell spoke with McGillis, and he viewed a surveillance video that corroborated parts of McGil-lis's account. Detective Campbell then went to trailer 46. He found Rae sitting on the front porch; Rae was drinking a bottle of the Alaskan Brewing Company's IPA. Campbell immediately detained Rae. The sufficiency of this evidence to support the jury's finding that Rae was the perpetrator of these crimes At Rae's trial, he conceded that someone had stolen the truck, crashed into the brewing company's gift shop, and stolen the beer-but Rae contended that the State's evidence was not sufficient to prove that he was this person. The jury rejected Rae's defense and concluded that Rae was the perpetrator of these crimes. Now, on appeal, Rae argues that the evidence presented at his trial was legally insufficient to support the jury's conclusion. Evidence is legally sufficient to support a criminal conviction if the evidence and the reasonable inferences to be drawn from it, when viewed in the light most favorable to the jury's decision, are sufficient to convince fair-minded jurors that the government has proved its allegations beyond a reasonable doubt. The evidence recounted in the preceding section of this opinion meets this test. We therefore conclude that the evidence presented at Rae's trial is legally sufficient to support his convictions. Rae's challenge to the grand jury indictment When Rae's case was presented to the grand jury, the State presented the evidence that we have already described. But in addition, the State presented evidence of what Detective Campbell discovered afterwards inside trailer number 46, when he searched that trailer under the authority of a search warrant. Inside the trailer, Detective Campbell found thirty to forty bottles of the Alaskan Brewing Company's "Alaskan Amber" beer scattered around the living room, plus packs of beer and two 5-gallon beer kegs. At some point after the prosecutor finished - her presentation of this evidence, one of the grand jurors asked, "Is there any way-Do we know for sure that the kegs that were found in that trailer were the actual kegs that were stolen?" In response, the prosecutor recalled one of the Alaskan Brewing Company employees to the stand. This employee testified that each keg had a unique UPC code, and that the codes on the recovered kegs matched the codes of the gift shop's missing kegs. The grand jury then returned a true bill on all counts. Five months later, the court and the parties discovered that the search warrant application hearing had not been recorded. Rae's attorney moved to suppress the search warrant and all the resulting evidence, and to dismiss the indictment (because this evidence had been presented to the grand jury). The superior court held an evidentiary hearing to see if the record of the search warrant application could be reconstructed. Both Detective Campbell and the judge who heard the search warrant application testified at this hearing, but the superior court ultimately determined that it was not possible to reconstruct a reliable record of the search warrant application hearing. The court therefore granted Rae's motion to suppress the evidence obtained pursuant to the search warrant. (This evidence was not presented at Rae's trial.) But even though the superior court suppressed the evidence obtained under the search warrant, the court denied Rae's motion to dismiss the indictment. The court concluded (1) that the remaining grand jury evidence was sufficient to support the indictment, and (2) that the presentation of the search warrant evidence had not appreciably affected that grand jury's decision. On appeal, Rae challenges both of the superior court's conclusions. With respect to Rae's first contention (that the remaining grand jury evidence was insufficient to support the indictment), we need only reiterate our earlier conclusion that this same evidence was sufficient to support the trial jury's decision that Rae was guilty beyond a reasonable doubt. Because this evidence was sufficient to support a finding of guilt beyond a reasonable doubt, this evidence was sufficient to support the grand jury's indictment, where the burden of proof is less demanding. We therefore turn to Rae's remaining contention: that the evidence obtained during the execution of the search warrant caused the grand jury to return an indictment when, otherwise, they would not have. The applicable legal test is stated in Stern v. State, 827 P.2d 442 (Alaska App.1992). Under Stern, we must ask whether "the probative force of [the] admissible evidence was so weak and the unfair prejudice engendered by the improper evidence was so strong that it appears likely that the improper evidence was the decisive factor in the grand jury's decision to indict." Id. at 446. Again, the answer to our inquiry seems to lie in our conclusion that the evidence presented at trial-essentially the same evidence that the grand jury heard, minus the evidence obtained during the search-was sufficient to support the guilty verdicts returned by the trial jury. This demonstrates that the probative force of the remaining evidence was not weak-that it was, in fact, convincing beyond a reasonable doubt-and that the search warrant evidence therefore could not have been the decisive factor in the grand jury's decision to indict Rae. The only aspect of this case that might indicate a contrary conclusion is the fact that one of the grand jurors, even after hearing the search warrant evidence, still wanted to know if the government had more definite proof that the two kegs found in Rae's trailer were the same kegs stolen from the brewing company's gift shop. This grand juror's motive for asking this question is unclear: the question might simply reflect the fact that the grand juror was curious about this point, but the grand juror's question might also indicate that the grand juror had lingering doubts about the State's evidence. But even if we assume that this grand juror did indeed have doubts about the State's case, we conclude that this does. not require dismissal of the indictment. A grand jury decides cases by majority vote; that is, the grand jurors' decision need not be unanimous. Thus, even if we assume that this single grand juror harbored reservations about the case, this does not tell us whether any other grand jurors had doubts about the case, nor does it tell us whether the grand jury as a whole would have been unlikely to return an indictment in the absence of the search warrant evidence. Alaska Evidence Rule 606(b) prohibits any inquiry into the deliberative processes of individual grand jurors for the purpose of attacking an indictment. Thus, under Alas ka law, we (and the superior court) are forbidden from inquiring into the subjective deliberative processes of the other grand jurors on Rae's panel. Instead, we are required to apply an objective standard when we decide, under the Stern test, whether the introduction of the search warrant evidence appreciably affected the other grand jurors' decision. Alaska law is already clear on this point in the context of attacks on the validity of a trial jury's verdict. In Swain v. State, 817 P.2d 927 (Alaska App.1991), this Court held that when a question arises post-verdiet as to whether an impropriety affected the decision of a trial jury, that question is resolved under the "substantial likelihood test", which this Court declared to be "an objective standard". Id. at 982. This rule also applies to the attack on the indictment in Rae's case. We apply an objective test when we assess whether the search warrant evidence was the decisive factor in the other grand jurors' decision to indict Rae. Stern, 827 P.2d at 446. Using this objective test, and given the other evidence presented to the grand jury, we conclude that the evidence obtained under the search warrant was not the decisive factor in the other grand jurors' decision to indict Rae. The superior court therefore properly denied Rae's motion to dismiss the indictment. Conclusion The judgement of the superior court is AFFIRMED. . See Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App.2012); Silvera v. State, 244 P.3d 1138, 1143-44 (Alaska App.2010). . State v. McDonald, 872 P.2d 627, 653 (Alaska App.1994). . See Cathey v. State, 60 P.3d 192, 195-96 (Alaska App.2002); Sheldon v. State, 796 P.2d 831, 836-37 (Alaska App.1990) (a grand jury should return an indictment when the grand jury is "convinced of the probability of the defendant's guilt"). . Evidence Rule 606(b) states, in pertinent part: "Upon an inquiry into the validity of a verdict or indictment, a juror may not be questioned as to . the effect of any matter or statement upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes." . Quoting the American Bar Association's commentary to its Criminal Justice Standard 8-3.7.

6905917

John W. PLETCHER IV, Appellant, v. STATE of Alaska, Appellee

Pletcher v. State

2014-11-21

No. A-11492

953

961

338 P.3d 953

338

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T18:25:58.282102+00:00

CAP

Before: MANNHEIMER, Chief Judge, ALLARD, Judge, and HANLEY, District Court Judge.

John W. PLETCHER IV, Appellant, v. STATE of Alaska, Appellee.

John W. PLETCHER IV, Appellant, v. STATE of Alaska, Appellee. No. A-11492. Court of Appeals of Alaska. Nov. 21, 2014. Allen F. Clendaniel and Carolyn Y. Hey-man-Layne, Sedor, Wendlandt, Evans & Fi-lippi, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: MANNHEIMER, Chief Judge, ALLARD, Judge, and HANLEY, District Court Judge. Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).

4541

28915

OPINION MANNHEIMER, Judge. The defendant in this case was a former patient at an alcohol abuse treatment center. One morning he returned to the treatment center, and he was visibly intoxicated. When staff members asked him if he had been drinking, the defendant drove off in his motor vehicle. The clinical director of the treatment center called the police to report that an intoxicated driver had just left the premises. The director gave the police a description of the vehicle, but she did not identify the driver, nor did she explain the driver's relationship to the treatment center. This phone call led to a traffic stop-and, ultimately, to the defendant's conviction for driving under the influence. In this appeal, the defendant argues that when the director made the phone call to the police, she violated federal law that protects the privacy of patients receiving drug and alcohol treatment. The defendant then argues that the remedy for this purported violation of federal law should be suppression of all the evidence against him. For the reasons explained in this opinion, we conclude that the director did not violate federal law when she called the police, and we further conclude that the ensuing investigation and prosecution of the defendant for driving under the influence was consistent with federal law. Underlying facts On the morning of December 10, 2009, John W. Pletcher IV drove to the Clitheroe Center located at Point Woronzof, near the Anchorage airport. This is a residential substance abuse treatment facility run by the Salvation Army. Pletcher was known to the staff at Clithe-roe because he had recently been a residential patient there. However, at the time of this incident, Pletcher had transferred to an outpatient program at a Salvation Army halfway house. _ Pletcher showed signs of being intoxicated. When the staff asked him if he had been drinking, Pletcher ran outside into the parking lot. Two Clithéroe employees followed Pletcher outside, and they heard a car start up. One of these employees, Robert Marx, took note of Pletcher's vehicle as it drove off-a red and white Land Rover with Alaska license plate DNK 265. Using a walkie-talkie, Marx relayed this information. to the clinical director of Clitheroe, Brie David. Ms. David then called the Anchorage airport police (the closest police agency) to report a suspected drunk driver. David identified herself as a Clitheroe employee, she explained that an intoxicated driver had just left the Clitheroe premises, and she gave the description of the vehicle. But David did not identify Pletcher as the driver, nor did she reveal that the driver had been a Clitheroe patient. Because the content of Ms. David's conversation with the police dispatcher plays such a prominent role in Pletcher's argument on appeal, we include a transcription of that conversation in this footnote. Airport police officers responded to this call They located a Land Rover coming from the direction of Point Woronzof, and they observed that this Land Rover had no front license plate, so they performed a traf-fie stop. (State law requires that a car's license plates be displayed at both the front and the rear. ) When the police asked the driver for his operator's license, the driver produced a license that identified him as John W. Pletcher. Pletcher was the sole occupant of the Land Rover. There was an empty bottle of vodka underneath a blanket on the passenger seat. Pletcher's eyes were bloodshot, and his speech was noticeably slurred. He performed poorly on the horizontal gaze nystag-mus test and one other field sobriety test, and he stated that he "could not" perform a third field sobriety test. The police then arrested Pletcher for driving under the influence. A subsequent breath test showed that Pletcher's blood alcohol content was .180 percent (more than twice the legal limit). Because Pletcher had two prior convictions for driving under the influence within the preceding ten years, the State took Pletcher's case to the grand jury, seeking an indictment for felony driving under the influence. ~Both Marx and David testified at the grand jury. Neither of them identified Pletcher during their testimony, nor did they mention the fact that Pletcher had received treatment at Clitheroe. Instead, they described their contact with "an individual" on the Clitheroe premises-an individual who was noticeably intoxicated, and who left the premises in his motor vehicle. (During his testimony, Robert Marx mentioned the fact that the individual in question "was known to us", and Marx implied that he personally had had prior contacts with this individual. But Marx never identified the context in which this "individual" was known to him or the other people at Clitheroe.) The testimony identifying Pletcher as the driver of the vehicle. (and confirming his in toxication) was given by a police officer who participated in the traffic stop. The grand jury indicted Pletcher for felony driving under the influence. Following a jury trial, Pletcher was convicted of this offense. A description of Pletcher's claim on appeal Pletcher argues that his prosecution for driving under the influence was based on information that was divulged by Clitheroe in violation of federal law. Clitheroe is a drug and alcohol treatment facility that receives federal funding; as a consequence, Clitheroe is governed by the confidentiality provisions of 42 U.S.C. § 290dd-2(a) and the supporting regulations enacted pursuant to 42 U.S.C. § 290dd-2(g). This federal law protects the privacy of patient information-all records relating to the patient's "identity, diagnosis, prognosis, or treatment". More specifically, § 290dd-2(c) provides that, absent a court order, "no [treatment] record . may be used to initiate or substantiate any criminal charges against a patient or to conduct any investigation of a patient." See also 42 C.F.R. § 2.12(a2)(2) and 2.12(d). Pletcher claims that the telephone call from Brie David to the police dispatcher violated this federal law because it amounted to a disclosure of "patient identifying information" without Pletcher's consent. In particular, Pletcher argues that Ms. David disclosed protected information when (1) she identified herself as a Clitheroe employee; (2) she told the dispatcher that an unnamed intoxicated person had come to Clitheroe; and (8) she gave the dispatcher a description of this person's motor vehicle. Based on this assertion that the telephone call to the police dispatcher violated federal law, Pletcher then argues that the traffic stop, and his ensuing arrest for driving under the influence, violated federal law as well-because these investigative actions were triggered by the phone call. And relying on this same argument, Pletcher claims that his indictment by the grand jury, and his later trial in the superior court, violated federal law-both because the grand jury and the trial jury heard evidence that was generated by the initial telephone call, and because the two juries heard the testimony of Clitheroe employees Marx and David. | Why we conclude that the telephone call to the police dispatcher did not violate federal law As we have already explained, when Ms. David called the police dispatcher to report the intoxicated driver, she did not identify Pletcher by name, nor did she say that the intoxicated visitor to Clitheroe was a patient or former patient. In fact, the record in this case contained no information identifying Pletcher as a Clitheroe patient until Pletcher's attorney offered this information in support of his motion to dismiss the indictment (on the theory that federal law prohibited the State from prosecuting Pletcher). Nonetheless, Pletcher claims that the phone call to the police dispatcher violated federal law. In his brief to this Court, Pletcher repeatedly characterizes Ms. David's conversation with the dispatcher as the disclosure of protected "patient identifying information"-which he defines as "any and all information that could reasonably be used to identify an individual . as [al substance abuse patient". But the federal regulations contain a substantially narrower definition of "patient identifying information". As defined in 42 C.F.R. § 2.11, this phrase means "the name, address, social security number, fingerprints, photograph, or similar information by which the identity of a patient can be determined with reasonable accuracy and speed either directly or by reference to other publicly available information." Of the information that Ms. David gave to the police dispatcher, the only portion that arguably falls within this definition is the license plate number of Pletcher's vehicle (under the theory that this plate number would lead to "other publicly available information"-4.e., Pletcher's vehicle registra- ~ tion-that would reveal his identity). But even assuming that Pletcher's license plate number was the kind of information covered by the phrase "patient identifying information", this does not necessarily mean that Ms. David's disclosure of this information was prohibited. Federal law forbids the disclosure of "patient identifying information" only if that information is derived from "[rJecords [of a federally assisted ageney] maintained in connection with the performance of any program or activity relating to substance abuse . treatment [or] rehabilitation". 42 U.S.C. § 290dd-2(a). We acknowledge that the pertinent federal regulation contains a broad definition of "records". 42 C.E.R. § 2.11 declares that "ree ords" means "any information, whether recorded or not, relating to a patient received or acquired by a federally assisted aleohol or drug [treatment] program." But this definition must be understood in the context of the governing statute, 42 U.S.C. § 290dd-2(a). As we have explained, that statute declares that the guarantee of confidentiality applies to records that are related to the facility's treatment or rehabilitation of alcohol abusers-records "maintained in connection with the performance of any program or activity relating to substance abuse . treatment [or] rehabilitation". According to the evidence in this case, the information about Pletcher's license plate number did not come from Clitheroe's treatment records pertaining to Pletcher-i.e., it did not come from records maintained in connection with "the performance of any [treatment or rehabilitative] program or activity" involving Pletcher. Rather, this information came from Robert Marx's observation of Pletcher's vehicle as Pletcher was preparing to drive away from the Clitheroe parking lot. (Marx relayed this information to Brie David via walkie-talkie, and Ms. David then provided this information to the police dispatcher.) Seemingly, then, the information that Ms. David provided to the police dispatcher was not protected. But Pletcher argues that the prohibition on disclosure is broader than this. He relies specifically on 42 C.F.R. § § 2.12 and 2.13 for the proposition that federal law prohibits disclosure of "any and all information that could reasonably be used to identify an individual" as a drug or alcohol treatment patient. One of the regulations Pletcher cites, 42 C.EF.R. § 2.18, contains restrictions on what a treatment facility can and can not say when responding to a request for verification that a particular identified person is (or has been) a patient at that facility. But that is not the issue here. The other regulation, 42 C.FE.R. § 2.12, is more pertinent, because 42 CFR. § 2.12(a)(1) contains a more general prohibition on disclosure of patient identifying information. But this prohibition does not cover "any and all information that could reasonably be used to identify an individual", as Pletcher suggests. Rather, § 2.12(a)(1) makes it illegal to disclose information only if that information meets both of the following two criteria: ) [the information would] identify a patient as an alcohol or drug abuser either directly, [or] by reference to other publicly available information, or through verification of such an identification by another person; and (3) [the information is] drug . or . aleohol abuse information obtalned by a federally assisted . program . for the purpose of treating aleohol or drug abuse, making a diagnosis for that treatment, or making a referral for that treatment. This regulation basically recapitulates the law we have already described. Subsection (1) of the regulation mirrors the definition of "patient identifying information" found in 42 C.E.R. § 2.11. It is limited to information that would identify someone as an alcohol or substance abuse patient either "directly" or "by reference to other publicly available information", or through direct verification by someone other than the patient. Subsection (M) of the regulation mirrors the language of the governing statute, 42 U.S.C. § 290dd-2(a). It is limited to infor mation obtained "for the purpose of treating [or diagnosing] aleohol or drug abuse". And 42 CFR. § 2.12(a)(1) declares that information about a patient is protected only if it meets both of these criteria. Returning to the facts of Pletcher's case, Ms. David told the police dispatcher that an unidentified intoxicated person had come to visit Clitheroe, that this person had then decided to leave, and that this person was driving a red and white Land Rover with license plate DNK 265. This information did not fall within the first criterion codified in § 212(a)(1); that is, it did not identify Pletcher as a drug or alcohol treatment patient either "directly", or "by reference to other publicly available information", or "through verification of [that] identification by another person". (Indeed, because the Clitheroe Center at Point Woronzof is a residential treatment facility, David's report suggested that this unnamed person was merely a visitor and not a patient in residence at Clitheroe-because, according to David's report, the person had driven to Clitheroe that morning and then had left.) Moreover, the information that David conveyed to the police dispatcher did not fall within the second criterion of 42 CER. § 2.12(a)(1) either. Under this second criterion, the ban on disclosure of information that identifies a person as a drug or alcohol abuse patient applies only to "information obtained by a federally assisted [drug or alcohol treatment] program . for the purpose of treating alcohol or drug abuse, making a diagnosis for that treatment, or making a referral for that treatment." The information that Ms. David conveyed to the police dispatcher-the fact that an unnamed person visited Clitheroe that morning, that this person was intoxicated, that he departed in a motor vehicle, and the description of that motor vehicle-was not obtained for any of these purposes. In sum, Pletcher's argument in this appeal hinges on his assertion that federal law prohibited the Clitheroe employees from disclosing any and all information which, if investigated, might ultimately lead to Pletcher's identification as someone who had received alcohol abuse treatment. But that is not what 42 U.S.C. § 290dd-2(a) says, and it is not what 42 C.EF.R. § 2.12(a)(1) says. When Ms. David called the police dispatcher, she reported a danger to the public safety that was occurring as she spoke-an intoxicated person was driving a motor vehicle away from Clitheroe. But the information Ms. David imparted to the dispatcher did not come from Clitheroe treatment records, and Ms. David did not identify Pletcher as a patient who had received (or was receiving) treatment for alcohol abuse. We therefore conclude that federal law permitted the disclosure of the information contained in Brie David's telephone call to the police dispatcher. Thus, there was no legal impediment to the police officers' investigation of that information-an investigation which led to the traffic stop, the identification of Pletcher as the driver of the vehicle (when he produced his driver's license), the police observations of Pletcher's intoxication, and the ensuing breath test which showed that Pletcher's blood alcohol level was .180 percent, substantially over the limit. In his brief, Pletcher makes a cursory argument that AS 47.37.210(a) (one provision of Alaska's codification of the Uniform Alcoholism and Intoxication Treatment Act) guarantees an even greater level of confidentiality than federal law-so that even if the phone call to the police dispatcher did not violate federal law, that phone call nevertheless violated AS 47.37.210(a). AS 47.37.210(a) declares: "Except as required by AS 28.35.030(d) [a provision relating to persons ordered into treatment as a result of a conviction for driving under the influence], the registration and other records of treatment facilities shall remain confidential and are privileged to the patient." We doubt that this statutory protection for treatment records was intended to provide greater privacy protection than the federal law we have been discussing. And to the extent that such an argument might be made, we con clude that Pletcher's briefing is inadequate to preserve this claim. Why we reject Pletcher's attack on his grand jury indictment Pletcher makes a related argument that his grand jury indictment was tainted because the grand jury heard the testimony of two Clitheroe employees, Brie David and Robert Marx. Pletcher contends that these two witnesses' testimony about "their specific interactions with Mr. Pletcher on Clitheroe's premises" was prohibited by the federal confidentiality law. Indeed, Pletcher argues that the "mere presence" of these two witnesses violated federal law-because the fact that these witnesses worked for Clitheroe might conceivably be used as a link to connect Pletcher to his alcohol abuse treatment. For the reasons explained in the preceding section of this opinion, we reject these arguments. Pletcher also asserts that David's and Marx's testimony to the grand jury "included direct statements about Mr. Pletcher's treatment", and that these statements were "used to obtain [the] indictment". But Pletcher's brief contains no citations to the record to support these assertions, and we are unable to find any portion of the grand jury record that supports Pletcher's assertions. We acknowledge (as we did earlier in this opinion) that even though Robert Marx did not identify Pletcher as the person he was describing in his grand jury testimony, Marx did mention the fact that the individual in question "was known to us", and Marx implied that he personally had had prior contacts with this individual. Marx's testimony conceivably raised the inference that the unnamed person in question had previously received treatment at Clitheroe. Later, the grand jury heard Officer Robert Bentler testify that, during the traffic stop, the driver of the vehicle was identified as John Pletcher. The testimony of these two witnesses, in combination, might have allowed the grand jurors to infer that Pletcher was a former substance abuse patient at Clitheroe. But even if the grand jurors might have inferred that Pletcher was a former Clitheroe patient, we conclude that this information had no appreciable effect on the grand jurors' decision to indict Pletcher. The question of whether an indictment should be invalidated because the grand jury heard improper evidence is governed by the test announced in Stern v. State, 827 P.2d 442 (Alaska App.1992). Under that test, a court first asks whether, absent the challenged evidence, the other evidence presented to the grand jury was sufficient to justify the indictment. If the remaining evidence was sufficient to justify the indictment, then a court asks whether "the probative force of [the] admissible evidence was so weak and the unfair prejudice engendered by the improper evidence was so strong that it appears likely that the improper evidence was the decisive factor in the grand jury's decision to indict." Id. at 445-46. Here, Officer Bentler's identification of Pletcher as the driver of the vehicle was based on the information shown on Pletcher's driver's license, not on any information contained in Clitheroe's treatment records. And contrary to Pletcher's argument 'on appeal, the testimony of Marx and Bentler, even viewed in combination, contained no "direct statements about Mr. Pletcher's treatment". Nor was any information about Pletcher's aleohol abuse treatment "used to obtain [the] indictment". Pletcher was indicted because the State presented evidence that he was visibly impaired when the police stopped his motor vehicle, that a breath test administered within four hours of this traffic stop showed that his blood alcohol content was .180 percent, and that Pletcher had two prior convictions for driving under the influence within the preceding ten years. We therefore conclude that, even if the grand jurors might have inferred that Pletcher was a former Clitheroe patient, this information had no appreciable effect on the grand jurors' decision to indict Pletcher, and thus the indietment remains valid. Why we conclude that the testimony given at Pletcher's trial did not violate federal law In advance of his trial, Pletcher filed motions asking the superior court to prohibit the State from introducing any testimony from Clitheroe employees or from any of the police officers who responded to Ms. David's phone call to the police dispatcher-in essence, a preclusion of the State's entire case. Pletcher argued that all of this testimony would, either directly or indirectly, rest on information that was protected by 42 U.S.C. § 290dd-2. The superior court denied Pletcher's motions, but the court ruled that, unless Pletcher opened up these areas of inquiry through his cross-examination of these witnesses, no witness would be permitted to testify (1) that Pletcher had been a patient at Clitheroe, or (2) that his demeanor on the day in question deviated from the "normal" demeanor that he displayed during his treatment at Clithe-roe. In addition, the superior court expressly limited the police officers' testimony to "recounting the [phone] call they received from . Brie David describing the vehicle, their stop of [the] Defendant, administering the field sobriety tests and the results, and administering the breath . test and its result." On appeal, Pletcher concedes that all of the trial witnesses abided by the limitations laid down by the superior court. Pletcher argues, however, that even this limited testimony was unlawful. We are about to address Pletcher's arguments individually, but they all rest on the same premise: the erroneous assertion that federal law prohibits the disclosure of any and all information that might conceivably be used as a link to connect Pletcher to his alcohol abuse treatment. Pletcher argues that when David and Marx identified him as the man who visited Clithe-roe on the morning in question, this testimony violated federal law because it revealed that Pletcher had visited a substance abuse treatment center on at least this one occasion. For the reasons we have already explained, we reject Pletcher's argument. Pletcher also contends that, regardless of the content of their testimony, the "mere presence" of the Clitheroe employees as trial witnesses constituted an independent violation of federal law-because the jury might infer, simply from the fact that David and Marx were Clitheroe employees, that Pletcher had some kind of relationship with the substance abuse treatment facility. We reject this contention as well. Pletcher also asserts that the testimony of Officer Chris Hovila violated federal law because the officer testified that the call to the police dispatcher came from someone at Clitheroe. Pletcher argues that it was unlawful for the officer to reveal this information because it "linked Mr. Pletcher with a substance abuse treatment facility". We reject this argument. Finally, Pletcher renews his argument that none of these witnesses should have been allowed to testify at his trial in any fashion, because the entirety of their testimony "constituted the illegal use of protected information". According to Pletcher, the testimony of these witnesses was simply the fruit of prior violations of federal law-"the culmination of a series of illegal disclosures and illegal uses of protected information". For the reasons we have already explained, we find no "illegal disclosures" and no "illegal uses of protected information" in Pletcher's case. The State's argument that even if 42 U.S.C. § 290dd-2 was violated, suppression of evidence is not the remedy In its brief to this Court, the State argues that even if information used in the investigation and prosecution of Pletcher's case was disclosed in violation of 42 U.S.C. § 290dd-2 and its related regulations, Pletcher would not be entitled to suppression of the resulting evidence. This Court recognized in Harker v. State, 637 P.2d 716 (Alaska App.1981), that it is sometimes appropriate to apply the exclusionary rule to violations of a statute (as opposed to violations of the constitution), and Harker sets forth the factors that a court should consider when making this assessment. Under Harker, a court must consider (1) whether the statutory requirement or restriction is clear and widely known; (2) whether the statute is primarily designed to protect individual rights, as opposed to being intended more "for the benefit of the people as a whole"; (8) whether admission of evidence obtained in contravention of the statute would require the court to condone "dirty business"; and (d) whether there is evidence that the police have engaged in widespread or repeated violations of the statute. Id. at 719. But because we conclude that federal law was not violated in Pletcher's case, we need not resolve this issue. Conclusion We conclude that the case against Pletcher was investigated and prosecuted in conformi- - ty with federal law protecting the confidentiality of alcohol and drug abuse treatment records. Accordingly, the judgement of the superior court is AFFIRMED. . Police Dispatcher: Airport dispatch. Ms. David: Oh, hi. This is Brie David with Clitheroe. Dispatcher: Uh-huh. David: And we had a person come out here today that has been drinking. Dispatcher: Uh-huh. David: And he just left in his vehicle. Dispatcher: Uh-huh. David: He's in a red and white Land Rover. Dispatcher: Hold on. Can I put you on hold one second? David: Yes. Dispatcher: (background conversation) Okay, go ahead. David: He's in a red and white Land Rover, and the license plate number is DNK 265. Dispatcher: How long ago did he leave? David: (to an unidentified person on her end) How long ago did he leave? Unidentified Speaker: (indiscernible) David: (to the dispatcher) He's just going down the road. ' Dispatchers And tell me your name really quickly. David: [gives and spells her name] Dispatcher: Call-call-back number?. David: [gives her number] Dispatcher: We'll get somebody on it. David: Thank you. Dispatcher: Okay. Bye. David: Bye. . See AS 28.10.161(a) (the State of Alaska issues two license plates to all passenger cars), and AS 28.10.171(a) (when two license plates are issued to a vehicle, one must be attached in front and the other in the rear). . AS 28.35.030(n). . 42 U.S.C. § 290dd-2(a). . See Katmailand, Inc. v. Lake and Peninsula Borough, 904 P.2d 397, 402 n. 7 (Alaska 1995); Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d 406, 410 (Alaska 1990); Wren v. State, 577 P.2d 235, 237 n. 2 (Alaska 1978). . Compare our decision in Berumen v. State, 182 P.3d 635, 641-42 (Alaska App.2008) (holding that suppression of evidence was a proper remedy for violations of the "knock and announce" statute that are "neither justified by exigent circumstances nor excused under the 'substantial compliance' doctrine") with Nathan v. Anchorage, 955 P.2d 528, 532-33 (Alaska App.1998) (discussing whether suppression of evidence should be the remedy for a violation of the Americans with Disabilities Act). See also Bell v. State, 668 P.2d 829, 837 (Alaska App.1983) (holding that untimely notice of a search warrant's execution did not justify the suppression of evidence in the absence of prejudice or bad faith).

10447887

Albert S. VALENTINE, Appellant, v. STATE of Alaska, Appellee

Valentine v. State

1980-05-30

No. 4124

751

755

617 P.2d 751

617

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:25:40.644665+00:00

CAP

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

Albert S. VALENTINE, Appellant, v. STATE of Alaska, Appellee.

Albert S. VALENTINE, Appellant, v. STATE of Alaska, Appellee. No. 4124. Supreme Court of Alaska. May 30, 1980. James E. Douglas, Offices of Fred J. Baxter, Juneau, for appellant. Larry Weeks, Dist. Atty., Daniel W. Hickey, Chief Prosecutor, and Avrum M. Gross, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C. J., and CON-NOR, BOOCHEVER, BURKE and MATTHEWS, JJ.

2481

15132

OPINION RABINOWITZ, Chief Justice. Albert Valentine appeals his conviction of manslaughter for the killing of nine-year-old Billy Evenson, his half-brother. The charge arose from an incident when Valentine was babysitting for his four younger siblings and a friend at their apartment in Juneau. Valentine accidentally knocked over a box, and one boy found their mother's old derringer. Everyone started playing with it; Valentine aimed the pistol at the boys and pulled the trigger in jest. One of the boys told him that the gun did not work, and Valentine remembered hearing this from his mother, too. Billy then brought Valentine some ammunition, and Valentine loaded the gun; he went outside and pulled the trigger several times without results. He brought the loaded gun back inside and continued to play with it. According to Valentine's testimony, he did not believe the gun was pointed toward any of the children when he squeezed the trigger and the gun fired, but Billy jumped into the line of fire. Valentine was sentenced to a four-year suspended sentence. On appeal, Valentine claims error in three rulings of the superior court. He asserts that the superior court erred in denying his requested instruction on the lesser included offense of careless use of firearms; that the trial court abused its discretion in admitting into evidence two autopsy photographs; and that prejudicial prosecutorial misconduct occurred in closing argument which was not cured by the superior court's cautionary instruction. At trial, Valentine's attorney requested a jury instruction on the lesser included offense of careless use of firearms. This request was denied after extensive discussion between the trial court and Valentine's counsel as to what interpretation was to be placed on the manslaughter and careless use of firearms statutes. We have previously set forth as general principles in considering a claim of error for failure to give a lesser included offense the following: Generally, it is held that the elements of the included offense must be fewer in number than the elements of the greater offense or, stated differently, that the included offense must be less than the charged offense in terms of its constituent elements. Most courts require that there be some evidence to support the lesser-included offense, and it is usually required that the punishment be less severe for the lesser-included offense. However, a lesser included offense instruction is not appropriate when the only element or elements distinguishing the two offenses is uncontestedly present upon the facts of the case. If the defendant is charged with armed robbery, for example, and the presence of a weapon is uncontested, but defendant pleads insanity, no instruction on a lesser included offense of robbery is necessary. For if the jury accepts the defendants' version, they must acquit. If not, the only alternative is to convict for the offense charged, since the uncontested evidence would contradict a conviction for the lesser offense of robbery. At the time of the offense, AS 11.15.-200(a) defined the crime of careless use of firearms. In Christie v. State, 580 P.2d 310, 316-20 (Alaska 1978), we analyzed this "complicated tri-partite statute" in the context, of a lesser included offense of assault with a dangerous weapon. Valentine claims that the superior court should have instructed the jury on the second part of the statute, which forbids "[unintentionally] discharging a firearm which is pointed or aimed, intentionally and without malice, at a person." During the course of arguments over jury instructions, Valentine's counsel noted that his client's testimony at trial amounted to an admission of a violation of the second part of the careless use statute in that Valentine was pointing the gun in the direction of his brother and others in the room during the time immediately before the discharge of the gun. As to whether Valentine was intentionally pointing the gun at his brother at the moment of discharge is not certain from the testimony. Valentine's testimony was that he did not have the gun pointed at his brother at the moment he pulled the trigger but that it was off to the side and his brother had moved into the line of fire. However, there was clearly evidence in the record to support a conviction on the lesser offense of careless use of firearms. The point of debate is on whether the elements of careless use of firearms are, under the facts of this case, within the elements of manslaughter. A resolution of this problem depends on a construction of the manslaughter statutes. At the time of the conviction, there were three statutes that defined elements of the offense of manslaughter. AS 11.15.040 provided: Except as provided in § 10-30 of this chapter [first and second degree murder provisions], a person who unlawfully kills another is guilty of manslaughter . . . AS 11.15.080 provided: Every killing of a human being by the culpable negligence of another, when the killing is not murder in the first or second degree, or is not justifiable or excusable, is manslaughter, and is punishable accordingly. AS 11.15.200(b) provided: 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. In Keith v. State, 612 P.2d 977, Op. No. 2099, (Alaska 1980), we held that AS 11.15.-040 comprehended within its ambit the misdemeanor-manslaughter rule and that AS 11.15.200(b) is a codification of that rule in relation to the misdemeanor of careless use of firearms. Thus, for Valentine to be convicted, the prosecution need only prove that Valentine committed the misdemeanor of careless use of firearms and that Evenson was killed in the perpetration of that misdemeanor. Since the homicide of Evenson was an uncontested occurrence, under this misdemeanor-manslaughter theory of the crime, Valentine could not be guilty of careless use of firearms without also being guilty of manslaughter. In Christie, we noted the Supreme Court of Arizona's statement: [Instructions on lesser offenses are justified only when there is evidence upon which the jury could convict of a lesser offense . . . In other words, the state of the record must not be such that defendant can only be guilty of the crime charged or not be guilty at all. We believe the latter circumstance exists in this case, and Valentine was not entitled to an instruction on the lesser included offense of careless use of firearms. As his second assignment of error, Valentine claims the superior court erred in admitting two black and white autopsy photographs which were more prejudicial than probative. Upon our review of the photographs, we conclude that the superior court did not abuse its discretion in admitting the autopsy photographs. Valentine concedes that the photographs did have probative value to corroborate the medical testimony concerning the cause of death and to illustrate the path of the bullet. While we agree that this evidence was not crucial to the state's case, we do not find it so gruesome and shocking as to be "more harmful than illuminating." Armstrong v. State, 502 P.2d 440, 449 (Alaska 1972). As the Indiana Supreme Court said of another homicide prosecution: Such a subject is never a nice one to investigate. Any of the details have a decided tendency to horrify and to appall, but a court cannot arrange for lively music to keep the jury cheerful while the state's case in a murder trial is being presented, and gruesome evidence cannot be suppressed merely because it may strongly tend to agitate the jury's feelings. Hawkins v. State, 219 Ind. 116, 37 N.E.2d 79, 85 (1941). Thus, we conclude that the superior court did not abuse its discretion in admitting these photographs. Valentine's final specification of error is that prosecutorial misconduct resulted in an improper conviction. The prosecutor, in closing argument, stated in part: These statements were immediately objected to by defense counsel, and the superior court instructed the jury to disregard them. We conclude that the superior court's cautionary instruction cured any possible prejudice that could have resulted from this statement and, that in the context of this case, such statement was at most harmless error under the standard we first articulated in Love v. State, 457 P.2d 622, 631 (Alaska 1969). After we get past all the tears and remorse, now, the question is, is he guilty? And, if he is guilty; if he did those things, now is the time to convict him. Not sometime in the future, but today. The judgment of conviction is Affirmed. . One of the boys, however, testified that Valentine was pointing the gun at them. . Christie v. State, 580 P.2d 310, 317 (Alaska 1978) (footnotes omitted). . Id. at 317, n. 22. . The statute read, in relevant part: A person who intentionally, and without malice, points or aims a firearm at or toward a person, or discharges a firearm . 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. This statute was repealed by § 21, ch. 166, SLA 1978, effective January 1, 1980. See note 5 infra. . These statutes were repealed by § 21, ch. 166r SLA 1978, effective January 1, 1980, as part of the implementation of the Criminal Code revision. The new manslaughter statute, AS 11.-41.120, reads: Manslaughter, (a) A person commits the crime of manslaughter if he (1) intentionally, knowingly, or recklessly causes the death of another person under circumstances not amounting to murder in the first or second degree; or (2) intentionally aids another person to commit suicide. (b) Manslaughter is a class A felony. . The prosecution argued both an unlawful act theory of the crime and that Valentine was criminally negligent. Valentine's jury instructions offered the alternative theories of culpable negligence and unlawful act manslaughter. The court instructed the jury, as follows, as to the crime of manslaughter in this case. The Indictment alleges a violation of Section 11.15.040 Alaska Statutes, the pertinent parts of which read as follows: [a] person who unlawfully kills another is guilty of manslaughter . Manslaughter, in Alaska, is the unlawful killing of another, voluntary and involuntary. Voluntary manslaughter is the commission of an act in the sudden heat of passion or anger, without legal justification, resulting in death. Involuntary manslaughter is the inadvertent or unintentional killing while committing an unlawful or culpably negligent act, which proximately is the cause for the death or another. Manslaughter embraces a killing without malice and intent, in doing some unlawful act not amounting to a felony or naturally tending to cause death or great bodily injury, or in doing some lawful act in a culpably negligent manner, or in omitting to perform a legal duty. Thus, manslaughter is the unlawful killing of a human being without malice, either expressed or implied, and without intent to kill or inflict the injury causing death, committed accidentally in the commission of some unlawful act not felonious, or in the culpably negligent performance of an act lawful in itself. You are hereby instructed that it is unlawful to intentionally, and without malice, point or aim a firearm at or toward a person, or to discharge a firearm so pointed or aimed at a person. The term "culpable negligence" as used in these instructions refers to negligent acts which are aggravated, reckless and gross and which are such a departure from what would be the conduct of an ordinarily prudent or careful man under the same circumstances as to be contrary to a proper regard for human life or, in other words, a disregard for human life or an indifference to consequences. The facts must be such that the fatal consequences of the culpably negligent act could reasonably have been foreseen and it must appear that the death was the natural and probable result of a reckless or grossly negligent act. . Christie v. State, 580 P.2d 310, 317 n. 22 (Alaska 1978), quoting State v. Schroeder, 95 Ariz. 255, 389 P.2d 255, 257 (Ariz.1964), cert. denied, 379 U.S. 939, 85 S.Ct. 347, 13 L.Ed.2d 350 (1964). . In general, Alaska R.Evid. 403 provides: Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. . In Stevens v. State, 443 P.2d 600, 603 (Alaska 1968), cert. denied, 393 U.S. 1039, 89 S.Ct. 662, 21 L.Ed.2d 586 (1969), we stated: [A] photograph is admissible in evidence in the discretion of the trial judge, as an aid to the court or jury, after it has been shown to be a faithful representation of whatever it purports to depict, provided it is relevant, and provided its evidentiary value is not outweighed by any prejudice it might create. . However, in reviewing these photographs, we think it appropriate to remind trial courts that they should be open to methods of mini- , mizing the prejudicial impact of evidence if that can be done without destroying its probative value. In this case, the most objectionable photographs showed the open and pulled back chest cavity of the young victim and included views of his head and face. Cf. Commonwealth v. Eckhart, 430 Pa. 311, 242 A.2d 271, 273-74 (1968) (introduction of autopsy photos held to be reversible error). . In his brief, appellant argues: [The prosecutor's statement] implies that the State had information that appellant was the type of person who would commit further serious offenses and, as a consequence, it was only a question of time before he would be on trial again, unless the jury effectively removed him from society. The statement by the prosecution is not by itself grounds for reversal, given the cautionary instruction, but it needs to be evaluated in conjunction with the failure of appellant to receive a lesser included offense instruction and the introduction of the inflammatory autopsy photographs. . The exchange at trial was as follows: MR. DOUGLAS: I object to that, Your Hon- or. 1 find that objectionable. THE COURT: Would you please stand? MR. DOUGLAS: Yes, Your Honor. I don't like to interrupt the closing argument, but, now is the time to convict him, not some time in the future, I do find objectionable. THE COURT: I would instruct the jury not to regard that remark.

8976185

ALASKA INTER-TRIBAL COUNCIL; Alaska Native Justice Center; Akiachak Native Community; Akiak Native Community; Native Village of Aleknagik; Chinik Eskimo Community (Golovin); Native Village of Clark's Point; Native Village of Gambell; Native Village of Kiana; Native Village of Teller; Tuluksak Native Community; Native Village of White Mountain; Hazel Apok; Sharon Clark; Ester Floresta; Imogene Gardiner; Willie Kasayulie; and Mike Williams, Appellants, v. STATE of Alaska; Delbert Smith, Commissioner; Department of Public Safety, Appellees

Alaska Inter-Tribal Council v. State

2005-04-15

No. S-10844

947

976

110 P.3d 947

110

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:27:13.756137+00:00

CAP

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

ALASKA INTER-TRIBAL COUNCIL; Alaska Native Justice Center; Akiachak Native Community; Akiak Native Community; Native Village of Aleknagik; Chinik Eskimo Community (Golovin); Native Village of Clark’s Point; Native Village of Gambell; Native Village of Kiana; Native Village of Teller; Tuluksak Native Community; Native Village of White Mountain; Hazel Apok; Sharon Clark; Ester Floresta; Imogene Gardiner; Willie Kasayulie; and Mike Williams, Appellants, v. STATE of Alaska; Delbert Smith, Commissioner; Department of Public Safety, Appellees.

ALASKA INTER-TRIBAL COUNCIL; Alaska Native Justice Center; Akiachak Native Community; Akiak Native Community; Native Village of Aleknagik; Chinik Eskimo Community (Golovin); Native Village of Clark’s Point; Native Village of Gambell; Native Village of Kiana; Native Village of Teller; Tuluksak Native Community; Native Village of White Mountain; Hazel Apok; Sharon Clark; Ester Floresta; Imogene Gardiner; Willie Kasayulie; and Mike Williams, Appellants, v. STATE of Alaska; Delbert Smith, Commissioner; Department of Public Safety, Appellees. No. S-10844. Supreme Court of Alaska. April 15, 2005. Rehearing Denied June 28, 2005. Lawrence A. Aschenbrenner, Anchorage, Eric D. Johnson, Bethel, and Carol E. Daniel, Anchorage, for Appellants. James L. Baldwin, Michael G. Mitchell, and Dean J. Guaneli, Assistant Attorneys General, and Gregg D. Renkes, Attorney General, Juneau, for Appellees. Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

17135

111472

OPINION EASTAUGH, Justice. I. INTRODUCTION The appellants are plaintiffs who sued the State of Alaska, alleging that its allocation of law enforcement services violates the constitutional rights of residents of "off-road," predominantly Alaska Native, communities. Among other things, the plaintiffs alleged that the state violates their federal and state rights to equal protection of the law by adopting or creating a de jure discriminatory system of law enforcement, by engaging in intentional racial discrimination in providing law enforcement services, and by discriminating against residents of off-road, outlying communities in providing law enforcement services. The superior court rejected all of their claims, in part on summary judgment and in part following a bench trial. The plaintiffs argue here only that it was error to reject their federal and state equal protection claims. We conclude that the superior court did not err in holding that they did not prove that the state adopted or established a de jure discriminatory law enforcement system. We also hold that it did not err in rejecting after trial their state equal protection claim that alleged that the state's law enforcement system is linked to a discriminatory intent or purpose. The rejection of that claim after trial renders harmless their argument that the court erroneously dismissed their corresponding federal claim on summary judgment. We also conclude that the superior court did not clearly err in holding that off-road and on-road communities are not similarly situated. We therefore affirm. II. FACTS AND PROCEEDINGS A. Facts This appeal concerns plaintiffs' claims that the State of Alaska, in allocating state law enforcement services, unconstitutionally discriminates against residents of small rural, predominantly Native, communities that are not on the state road system. Plaintiffs refer to these communities as "off-road predominantly Native communities" and as "Native Villages." The state describes them as "isolated," "geographically cut off from the rest of the state," "predominantly populated by Alaska Natives," "off-road," and "rural Alaska." For simplicity, we will sometimes refer to them as "off-road" communities, and will sometimes refer to communities on the state road system as "on-road." Residents of Alaska receive law enforcement services in various ways. Most are served by police officers employed by their local governments. The Alaska Police Standards Council (APSC), which establishes minimum standards for police officers in Alaska, certifies these officers. APSC issues certificates to persons who satisfy the standards for "police officers." A person may not be appointed a non-probationary police officer in Alaska without meeting those standards. Law enforcement services provided by local municipal police departments are not at issue here. Alaskans who live in places that do not have local certified police officers receive law enforcement services from the Alaska State Troopers, a division of the Alaska Department of Public Safety. Troopers are certified as police officers by the APSC. Troopers must receive at least 440 hours of training in law enforcement; they actually receive 1100 hours of training. In addition to law enforcement, troopers provide traffic enforcement, search and rescue coordination, Civil Air Patrol support, court security, sex offender registration, and prisoner transportation services. The Alaska State Troopers are organized into five detachments encompassing large regions across the state. Detachment A covers Southeast Alaska. Detachment B covers Southcentral Alaska, including the Mat-Su Valley, portions of the Anchorage Bowl, and areas east to the Canadian border. Detachment C covers Western Alaska, Kodiak Island, and the Aleutian Chain. Detachment D covers Interior and Northern Alaska. Detachment E covers the Kenai Peninsula. The communities and individuals bringing this lawsuit are located within Detachment C. It contains the greatest concentration of off-road Native villages, including sixty-five percent of the federally-recognized tribes in Alaska, and has an area nearly the size of Texas. Troopers are not stationed in every community within each detachment. They are instead posted in hub communities that have transportation links to other areas within the detachment. In Detachment C, troopers are stationed in hub posts in Aniak, Bethel, Dill- ingham, Galena, King Salmon, Kodiak, Kot-zebue, Nome, and St. Mary's. King Salmon, with a population of approximately 440 in 2000, is the smallest of these "hub" communities. Troopers in hub posts provide some law enforcement services to residents of outlying communities, but generally only respond to emergencies or reported felonies. Troopers in on-road posts also patrol roads within their jurisdiction. As of 2002 the starting salary for a trooper was approximately $19 per hour. As of 2002 there were 237 Alaska State Troopers, 185 of whom were below the rank of sergeant and actively engaged in case investigation. Many off-road communities that have neither local municipal certified police nor a local trooper post receive some local law enforcement services from Village Police Officers (VPOs) or Village Public Safety Officers (VPSOs). VPOs and VPSOs are not certified by the APSC. A VPO may only serve in an incorporated "community off the interconnected Alaska road system, with a population of less than 1,000 persons." Similarly, a VPSO may only serve in "a community with a population of less than 1,000 individuals." The VPO program began when James M. Fitzgerald, then Commissioner of Public Safety, in 1959 proposed establishing a "constable" program to "provid[e] improved State Police service in remote villages and communities." In a letter to State Police District Commanders, Commissioner Fitzgerald wrote: I am in receipt of daily requests from communities throughout Alaska for resident police services. This of course would be prohibitively expensive were we to utilize regular State Police Officers. Yet, there is a definite requirement in many of these villages for local police officers to "keep the peace." This need cannot be met by sending State Police officers from cities which are several.hundred miles distant. A good deal of thought has been given to this matter, and I have considered the feasibility of appointing special State Police "Constables" amongst the native and eskimo population of these villages and communities_They would receive special training in effecting an arrest and in the enforcement of misdemeanor statutes . I would not expect them to be on duty during given hours, but I would expect that they be available within the community to provide immediate police service when the occasion presents itself_Ma-jor crimes would, of course, be immediately referred to the State Police, but pending the arrival of these personnel, the Constables could provide an important service by preserving the scene, securing necessary information or identifying suspects. The parties agree that Commissioner Fitzgerald's constable program became the Village Police Officer program, which was established in 1963 and continues to operate today. As of 2002 eighteen communities in Alaska had VPOs. VPOs áre appointed by their village and are independent of the Alaska Department of Public Safety. They are required to receive forty-eight hours of instruction and training, including ten hours of first aid instruction. Apparently no VPO has received this much training. VPOs are not armed. Many VPOs are paid with funding from Community Oriented Policing Services grants from the federal government. As of 1999 many VPOs earned $7 per hour; they received no overtime pay. The VPSO program dates back to the late 1960s when then-Trooper Lieutenant William Nix (later Commissioner of Public Safety) became supervisor of trooper outposts. While serving in that role, Lieutenant Nix developed concerns about the sufficiency of the VPO program. He was quoted in a trooper history as recalling that the Department of Public Safety "needed to broaden the function of these village officers to train them to provide emergency medical assistance and organize local fire-fighting and search-and-rescue groups.... Trying to make them just police officers was a waste of money." In 1971 then-Captain Nix proposed the creation of a "special constable" position within the Department of Public Safety. Captain Nix noted that the department had received complaints "by citizens living in rural Alaska that remote areas are being discriminated against when it comes to the State's providing law enforcement services." Captain Nix called allegations that the state directed personnel and funding to larger metropolitan regions and provided poor service to remote areas "true in many respects." He explained that "the level of service provided by the State Troopers in rural areas is below standard when compared to operations in the larger metropolitan areas." Captain Nix faulted insufficient "funds, planning and personnel" for the deficiencies. He proposed a special constable program to increase "the inclusion of bilingual Alaskan Natives into the Alaska State Trooper structure" and to develop "a core of well trained Alaska Natives, who in turn may one day be instrumental in assisting their people to establish and maintain city or borough police departments." He envisioned the special constables as Alaska Natives who would travel with troopers, assist troopers in providing law enforcement services, serve as interpreters, help train village police officers, and increase cultural understanding between the troopers and the residents of Native villages. The special constable program apparently operated in Alaska from 1971 to 1988. In 1980 then-Commissioner Nix proposed the VPSO program. The program began with funding from a federal Law Enforcement Assistance Administration grant. The concept paper for the VPSO program explained that "[rjural Alaska" had the worst "record for public safety" anywhere in the United States. The paper noted that most "predominantly native villages" did not have the funds to hire a local police officer. It found that a small village of under 300 residents did not need a full time police officer, fire fighter, or paramedic. The paper recognized that "although these various skills are needed — indeed are desperately needed — the delivery system must be structured to meet the needs of far fewer people with substantially fewer public safety problems of generally less complexity than urban conditions present." Commissioner Nix and his staff envisioned the VPSOs as "individuals with a broad array of public safety skills." Although VPSOs would not receive as much training in a specific field as police officers, fire fighters, or paramedics would in their respective disciplines, they would receive training in each field sufficient to meet most of the public safety needs of a small community. The VPSO program is now organized by statute within the Department of Public Safety. The department awards grants to nonprofit regional Native corporations, which then hire and assign VPSOs to villages within the corporations' regions. VPSOs are required to receive at least 240 hours of basic training. As of April 2002 VPSOs received approximately 360 hours of training. Eighty of those hours are in fire safety and suppression. As their name implies, VPSOs are not solely law enforcement officers. They are also trained to provide "emergency medical response, water safety, fire prevention, search and rescue, probation and parole" services. VPSOs investigate misdemeanors that occur in their villages, but are generally not permitted to investigate felonies. Except in emergencies, VPSOs may not carry. firearms. VPSOs are instructed by the troopers not to confront armed offenders.. The starting salary for VPSOs differs for each nonprofit regional corporation. In 2002 the starting hourly pay rate for a VPSO ranged between $13.78 and $17.61, and averaged $16.99. As of 2002 seventy-two communities had VPSOs. The VPSO appropriation in the budget of the Department of Public Safety allowed for eighty-four VPSOs in 2002, although some of those positions were vacant. As of April 2002 there were 237 troopers available for law enforcement for the entire state outside of localities with municipal police departments. According to the 2000 federal census and undisputed statistics submitted by the plaintiffs in the superior court, there are 165 places in Alaska that are off the interconnected road system, that have a population of twenty-five or more, and that do not have local APSC-certified police. These 165 places have a total population of 42¡265; of that total, 32,265 are Alaska Natives. Of these 165 places, 130 have a population that is over fifty percent Native. Of the 165 communities, seventy-two have a VPSO and twenty-seven,have a VPO. Because some places have both a VPSO' and a VPO, ninety communities have either a VPSO, VPO, or both. Of the 130 predominantly Native communities, eighty-five have either VPSOs or VPOs, and forty-five have no local resident law enforcement service. Of the thirty-five predominantly non-Native communities, five have either VPSOs or VPOs and thirty have no local resident law enforcement service. B. Proceedings The plaintiffs filed their complaint in 1999. The plaintiffs were two Alaska Native advocacy groups, ten predominantly Alaska Native communities located off the road system, and six individual Alaska Natives who live in communities off the road system. As the lawsuit proceeded, the superior court dismissed some of the plaintiffs. The six individual plaintiffs and the communities of Aki-achak and Tuluksak were the only remaining plaintiffs at trial. The defendants named in the original complaint were the State of Alaska, Ronald Otte, in his capacity as Commissioner of Public Safety, arid the Alaska Police Standards Council. The original complaint alleged that the defendants "fail[ed] to provide minimally adequate police protection to off-road Native villages and . discriminated] against them in the provision of State law enforcement services." It also alleged that the defendants violated the plaintiffs' rights to due process, equal protection, and law enforcement protection under the Fourteenth Amendment of the United States Constitution and article I, sections 1, 3, 7, 12, and 24 of the Alaska Constitution. The plaintiffs sought declaratory and in-junctive relief. Their complaint asked for a preliminary injunction precluding the defendants "from using federal funds in State law enforcement programs until they submit a plan, approved by this Court, to cease their discriminatory conduct toward Alaska Native Villages in the provision of police protection and eliminate the effects of their past discrimination." Their complaint also asked the superior court to permanently enjoin the defendants "from discriminating against off-road outlying communities in the provision of police protection or from adopting policies, regulations or otherwise taking actions which would provide off-road, outlying communities a lesser level of police protection than provided on-road communities." Finally, it sought a permanent injunction preventing the defendants "from using State or federal funds in State law enforcement programs that unlawfully discriminate against Alaska Native villages or other off-road, outlying communities in the provision of law enforcement services." Superior Court Judge Karen L. Hunt, to whom the case was then assigned, denied plaintiffs' motion for a preliminary injunction. She reasoned that the plaintiffs did not make a clear showing of probable success on the merits. On June 7, 2000, Judge Hunt also (1) denied the state's motion to designate the lawsuit as a class action; (2) ruled that the Alaska Inter-Tribal Council lacked standing as an institution and thus must represent its membership or be dismissed from the case; and (3) dismissed as plaintiffs the eight off-road Native villages that are located within municipalities. The Alaska Inter-Tribal Council later notified the superior court that it did not represent its membership. Plaintiffs' second amended complaint pleaded eight causes of action asserting various legal theories. Only their second, third, and fourth causes of action are at issue in this appeal. Each of these three causes of action alleged federal and state equal protection violations. Plaintiffs' second cause of action asserted that the state presently operates a de jure race-based system of law enforcement that either is traceable to a de jure race-based pre- or post-statehood system of law enforcement, or was intentionally created after statehood. We sometimes refer to this as their "de jure race-based system" or "de jure" claim. Plaintiffs' third cause of action asserted that the state engages in intentional racial discrimination in the way it provides police protection by certified police officers, result ing in a disparate impact on Alaska Natives. We sometimes refer to this as their "disparate impact" or "racial discrimination" claim. Plaintiffs' fourth cause of action asserted that the state discriminates against residents of "off-road outlying communities" in providing police protection. We sometimes refer to this as their "geographical discrimination" claim. The ease was assigned to Superior Court Judge Sharon L. Gleason when Judge Hunt retired. By order of December 4, 2001, Judge Gleason granted the state's motion to dismiss the Alaska Native Justice Center as a plaintiff; Judge Gleason based this ruling on Judge Hunt's decision dismissing the Alaska Inter-Tribal Council as a plaintiff. The state moved for summary judgment on all claims. By order of February 13, 2002, Judge Gleason granted the state's motion in part and denied it in part. The February 13, 2002 order granted summary judgment to the state on plaintiffs' federal and state substantive due process claims and on their claims under article I, sections 12, 14, and 24, and article VII, sections 4 and 5, of the Alaska Constitution. It also granted summary judgment to the state on the federal equal protection claim asserted in plaintiffs' fourth cause of action, which alleged geographic discrimination. These rulings are not at issue on appeal. The February 13, 2002 order also granted summary judgment to the state on the federal equal protection claim set out in plaintiffs' third cause of action, which alleged disparate impact resulting from intentional racial discrimination in providing police protection. The order denied summary judgment to the state on the federal equal protection claim set out in plaintiffs' second cause of action, which alleged that the state- operates a de jure race-based dual system of law enforcement. It also denied summary judgment to the state on the state-based equal protection claims asserted in plaintiffs' second, third, and fourth causes of action, because "material factual issues are genuinely disputed." Plaintiffs tried their remaining claims to the court without a jury in April 2002. Thirty-three witnesses testified during the nine-day trial. After plaintiffs presented their ease-in-chief, the superior court, on the state's motion, dismissed that part of plaintiffs' second cause of action which alleged that the state intentionally adopted a de jure race-based system of law enforcement that was allegedly operated in Alaska before Alaska became a state. Following trial, the superior court issued a thirty-three page decision that thoroughly discussed the evidence and ruled in favor of the state on the plaintiffs' remaining claims. The court explained its reasoning in both its mid-trial oral findings and its extensive post-trial written decision containing its findings of fact and conclusions of law. Plaintiffs now appeal several of the superi- or court's rulings. They appeal Judge Hunt's June 7, 2000 order dismissing as plaintiffs the Alaska Inter-Tribal Council and the eight villages located within municipalities. They appeal Judge Gleason's December 4, 2001 order dismissing the Alaska Native Justice Center. They appeal Judge Gleason's February 13, 2002 grant of summary judgment to the state on the federal equal protection claim set out in their third cause of action (the disparate impact claim). Finally, they appeal Judge Gleason's post-trial decision and order granting judgment to the state on the federal equal protection claim set out in plaintiffs' second cause of action (the de jure claim) and the state equal protection claim set out in their fourth cause of action (the geographical discrimination claim). III. DISCUSSION A. Standard of Review We review a grant of summary judgment de novo and will affirm the ruling of the superior court if the record indicates that no genuine issues of material fact are in dispute and that the moving party is entitled to judgment as a matter of law. We apply our independent judgment to questions of law and will "adopt the rule of law which is most persuasive in light of precedent, reason, and policy." We apply the clearly erroneous standard of review to a trial court's findings of fact. A finding of fact is clearly erroneous and will be reversed only if review of the entire record leaves us with a definite and firm conviction that a mistake has been made. B. Initial Observations The plaintiffs ultimately found their appellate arguments on two main propositions. The first proposition is that the state's VPSO and VPO programs, which exist largely in predominantly Alaska Native off-road communities and whose officers have less law enforcement training and authority than Alaska State Troopers, show that the state operates a "race-based" system of law enforcement in rural Alaska. Thus, plaintiffs contend that significant disparities between troopers and VPSOs and VPOs in qualifications, experience, training, arms, equipment, salaries, benefits, working conditions, and authority "result in a lower'level of police protection for off-road, predominately Native communities than the protection afforded by the Troopers to on-road predominately white communities." As to this first proposition, the superior court found that trooper allocation decisions are racially neutral, and that the VPO and VPSO programs are supplements to and not substitutes for trooper law enforcement services. The second proposition is that for purposes of allocating the troopers' law enforcement services, off-road and on-road communities are similarly situated. Thus, plaintiffs assert that despite some differences between on-road and off-road places, "all Alaska communities, whether on or off the road grid, are similarly situated in the only two relevant ways — their basic need for and right to equal access to adequate police protection." (Emphasis in original.) As to this second proposition, the superior court ruled after trial that on-road and off-road communities are not similarly situated due to significant differences such as population and accessibility. C. Federal Equal Protection Claims 1. Introductory principles A law that is race-neutral on its face nonetheless violates the Federal Equal Protection Clause if as applied it has a disparate impact on a racial group, and if that disparate impact "can be traced to a discriminatory purpose." The plaintiffs conceded below and concede on appeal that "the statutes and regulations governing the allocation of certified and uncertified police are racially neutral." Therefore, given their concession of the laws' facial neutrality, to prevail on their federal equal protection claim, plaintiffs had to show both that (1) as applied, the statutes and regulations controlling the allocation of law enforcement services in Alaska disproportionately and negatively impact Alaska Natives in their receipt of law enforcement services, and that (2) this disproportionate impact stems from an intent to discriminate against Alaska Natives in the allocation of law enforcement services. Absent a discriminatory purpose, a law that is race-neutral on its face does not violate the Federal Equal Protection Clause, even if the impact is disparate. Our inquiry here focuses on the second element, the requirement that a claimant establish discriminatory purpose or intent. We first address the plaintiffs' claim that the current police allocation system is traceable to a prior de jure discriminatory system. In some cases, neutral policies traceable to a prior de jure discriminatory system can, in essence, serve as a proxy for discriminatory intent attributable to the challenged policies (on the theory that the past system has not been sufficiently dismantled). ' We conclude below that the superior court did not err in holding that the present system is not traceable to a prior de jure discriminatory system of law enforcement. Plaintiffs additionally argue that the evidence presented at the summary judgment stage and at trial established a discriminatory purpose or intent attributable to the present system. Because we conclude that plaintiffs failed to demonstrate a discriminatory purpose and therefore cannot succeed on their federal equal protection claim, we affirm the superior court's dismissal of this claim. 2. Whether the state's law enforcement allocation system is traceable to a prior de jure discriminatory system Invoking United States v. Fordice, plaintiffs contend that the state's present system of allocating law enforcement services is traceable to a prior de jure discriminatory system. The parties refer to this as plaintiffs' Fordice claim. Fordice offers significant litigation benefits to a plaintiff who shows that present policies are traceable to a prior de jure system, because it relieves the plaintiff of having to prove that a discriminatory purpose can be attributed to the defendant's actions. After trial, the superior court found that the State of Alaska, when creating its law enforcement system after statehood, did not adopt an allegedly de jure' discriminatory pre-statehood law enforcement system (i.e., the former Indian Police program operated by the federal government or any other pre-statehood program). The court also found that the state did not establish its own de jure discriminatory system. The court therefore rejected plaintiffs' equal protection theory that the state's law enforcement system is traceable to a prior de jure discriminatory system. a. United States v. Fordice In Fordice, the United States Supreme Court considered whether Mississippi had satisfied its obligation under Brown v. Board of Education to dismantle de jure segregation in its public university system. Mississippi acknowledged that its laws formerly mandated a segregated, dual educational sys tem, but argued that it had reached full compliance with the law and had eliminated its prior de jure system. The Court determined that merely dismantling a de jure segregated admissions policy was insufficient to eliminate a prior de jure segregated dual educational system. The Court explained: [A] State does not discharge its constitutional obligations until it eradicates policies and practices traceable to its prior de jure system that continue to foster segregation. Thus we have consistently asked whether existing racial identifiability is attributable to the State . and examined a wide range of factors to determine whether the State has perpetuated its formerly de jure segregation in any facet of its institutional system.[ ] Fordice does not require a showing of present intent to discriminate if a claimant can show that the current system is "traceable" to a prior de jure system. Given the difficulty of proving discriminatory intent, this benefit may be important in a given case. As the Court noted, "if challenged policies are not rooted in the prior dual system, the question becomes whether the fact of racial separation establishes a new violation of the Fourteenth Amendment under traditional principles." b. Applicability of Fordice In weighing the state's argument that Fordice does not apply to this case, we first consider whether it matters that there was a genuine factual dispute about whether there was a de jure race-based system of law enforcement in Alaska before statehood. It was undisputed in Fordice that Mississippi previously had officially operated a racially segregated university system. The dispute in Fordice was whether Mississippi had dismantled its prior system. But here there was no prior determination that law enforcement in the decades before Alaska statehood was de jure race-based, and the evidence is not so one-sided that we must hold as a matter of law that the federal government or the Territory of Alaska operated de jure race-based law enforcement programs in Alaska in the years before statehood. The plaintiffs contend on appeal that evidence of a race-based dual system of law enforcement is undisputed. To the contrary, we think the evidence is in dispute and that the plaintiffs overstate their case. The burden-shifting discussed in Fordice does not apply if the predecessor program was not de jure discriminatory. There is a second impediment to applying Fordice here. The State of Alaska did not operate the pre-statehood programs to which plaintiffs would trace the origins of the state's present system. Plaintiffs have not persuaded us that pre-statehood programs conducted by the federal or territorial governments should be treated as though the State of Alaska operated them. These are distinct governmental entities. The text of Fordice repeatedly refers to the State of Mississippi's prior system, implying that tracing requires that the present government have purposefully discriminated in the past. This would be a logical requirement, because de jure discrimination requires an intent to discriminate. The analytical benefit Ford-ice confers makes sense in context of a state program challenged on the theory it is traceable to the state's prior, intentionally discriminatory program. In effect, Fordice shifts the burden to the state to prove that the discriminatory intent it previously held no longer exists. But placing that burden on a government is unwarranted if it was a different government that previously harbored the discriminatory intent. We do not read Fordice to reach so far. Another Supreme Court decision implies that this burden-shifting is justified by the state's ability to explain that its actions were not motivated by segregative intent. This rationale would not apply to intentions previously motivating a different government. There is a third problem with applying Fordice here. Fordice concerned a state's educational system. As one court has noted, Fordice has not been applied outside the context of education. We cannot say whether the Supreme Court would distinguish between educational programs and law enforcement services per se. But we perceive legally significant differences between programs that are ineluctably shaped by the physical realities of transportation, time, distance, and weather, and programs that can be readily and subtly molded by political choice hiding discriminatory intentions. The Court in Fordice seemed to acknowledge that student attendance could be affected by many factors other than state policies; the Court seemed to distinguish between race-neutral factors and factors that might still be affected by the state's policy choices. It also required-that policies traceable to the de jure system "must be reformed to the extent practicable and consistent with sound educational practices." The majority opinion noted that if traceable policies "are without sound educational justification and can be practicably eliminated," the state has not proved that it dismantled its prior system. These passages remind us that factors that are inherently race-neutral are distinguishable from factors more easily influenced by policy. We think that decisions to post Alaska State Troopers in places that are on the road system or in places that are transportation hubs are materially different in character from those made by Mississippi in operating its post-secondary education system. We conclude that the Fordice traceability analysis does not apply here, and that a violation of federal equal protection can only be shown "under traditional principles." Because the trooper allocation statutes and regulations are facially race-neutral, these "traditional principles" dictate that, in order to succeed on that claim, plaintiffs must show a government intent to discriminate. 3. Whether it was clear error after trial to reject plaintiffs' claim that the state intentionally adopted or designed a discriminatory system Even though Fordice does not apply, evidence of pre-statehood practices and the origins of the state's present system remains relevant to equal protection analysis of plaintiffs' third cause of action (claiming racial discrimination) under "traditional principles." Intent to discriminate may be proved by circumstantial evidence and "historical background . is one evidentiary source" in determining the existence of discriminatory purpose, "particularly if it reveals a series of official actions taken for invidious purposes." The superior court allowed plaintiffs to proceed to trial with their state law claim that the state intentionally used race in designing its own system of law enforcement. After trial, the superior court ruled against plaintiffs on this claim, ultimately finding that plaintiffs had "not established that in creating the VPSO program, or in creating any predecessors to that program, the State established a system of law enforcement in which a person's race or a community's racial composition were determinative factors in the type of law enforcement services to be provided." For purposes of our analysis here, we assume that before Alaska became a state, law enforcement services provided in Alaska by the federal government were race-based. The superior court found that when it was in effect, the Indian Police program operated by the federal government before statehood was a "race-based system of law enforcement." The court seems to have found that the program ended in 1907, but that equivalent federal programs may have continued into the 1930s. The court, however, citing the federal government's trust responsibility to Indians, made no finding that the federal race-based programs constituted illegal discrimination. The court did find that there was no evidence that a post-Indian Police and pre-statehood U.S. Marshals program was explicitly race-based and also found that plaintiffs had not proved their claim that the state adopted the pre-statehood Indian Police program following statehood. We do not need to decide whether the federal programs were also programs of the Territory of Alaska, because the ultimate questions are whether the State of Alaska intentionally created, and is presently operating, a discriminatory system. As the superior court observed mid-trial, the evidence on these questions was circumstantial. Much of the trial court evidence at the core of the plaintiffs' claims of an intentionally discriminatory system of law enforcement related to whether the state's current VPSO and VPO programs are "traceable" to a pre-statehood system. Plaintiffs regard programs such as the VPSO program as state-sponsored substitutes for law enforcement by full-fledged police officers, and interpret evidence about the creation of these programs as revealing an intention to discriminate against Alaska Natives and residents of remote communities. They argued below that the Supreme Court's use of words such as "traceable" and "derived" in Fordice indicates that Fordice does "not necessarily re-quir[e] . an absolute lineup of causality from earlier programs to later ones." They then argued that "a single model of a segregated system" for providing law enforcement services has existed in Alaska since the 1800s. They distinguished the VPSO program from a mere desire to hire Alaska Natives as state troopers. They argued that the state is "creating entirely separate programs to provide what are basically the same government services and constructing those separate programs in racial terms which was the model that had been set out with the Indian police." The state asserts on appeal that these programs (1) do not discriminate against Alaska Natives; (2) increase the quality of law enforcement and other public safety measures in the villages; and (3) supplement law enforcement provided by full-fledged police officers. After prompting from the superior court, the plaintiffs conceded at trial that there were no "documents where [the state] specifically said . we had this Indian police model a few decades ago, why don't we replicate it." The plaintiffs argued at trial- that the VPSO program was traceable to the Indian Police program because of what they called "numerous similarities" between the programs. They emphasized that in both programs, non-Native superiors directed the Native law enforcement officers, there was a regional hub system, and the officers had limited authority. The plaintiffs argued that law enforcement in Alaska has "been tinkered with over time," but that "it's basically the identical system." In response to the superior court's questions about any evidence of "the link between the Indian police and the marshals and the state programs that were developed after statehood," counsel for the plaintiffs responded that "all we have . on that is circumstantial evidence." The evidence shows that there are many differences, as well as similarities, between the Indian Police and the VPSOs. The Indian Police were "clothed, paid and guided by military and territorial authorities" and ,the VPSOs are "clothed and guided" by the Alaska State Troopers. The Indian Police wore and the VPSOs wear unique, government-provided uniforms. The Indian Police were paid from different funding sources within the federal government, including the Bureau of Indian Affairs and the Treasury Department. The VPSOs are paid with state funds that pass through Native regional nonprofit corporations. There was evidence the duties of the Indian Police were defined by the territorial governor. The VPSOs are guided by the troopers in law enforcement matters, and by the nonprofit corporations in all other matters. The Indian Police were exclusively composed of Alaska Native officers. There is no ethnicity requirement to become a VPSO, and there are non-Native VPSOs. The subjects of law enforcement by the Indian Police were exclusively Alaska Natives. There is no racial or ethnic jurisdictional restriction on VPSOs, although almost all VPSOs are stationed in places that have a population that is majority-Native. The Indian Police provided only law enforcement. VPSOs are trained in and provide, among other services, law enforcement, search and rescue, emergency medical treatment, fire safety, and water and boating safety. Based on this evidence, the superior court found in its oral findings at the end of plaintiffs' case-in-chief and again in its written findings after trial that the VPSO program was not traceable to the pre-statehood Indian Police program.' The superior court emphasized the "considerably broader duties" VPSOs have as compared to the duties of the Indian Police. It noted that while membership in the Indian Police was -limited to Alaska Natives, the VPSO program has no ethnic or racial requirement for entry.- It also explained that some VPSOs are stationed in places where the majority of the population is non-Native, while Indian Police could only legally serve in predominantly Native communities. The court found that "the establishment of the VPSO program was based on the advice of knowledgeable people in the field of law enforcement and . was not an effort by the State of Alaska to resurrect an old model that had been in place from the late 1800s to early 1900." The record convinces us that the superior court did not clearly err in finding that the state did not adopt the federal government's pre-statehood de jure race-based Indian Police program. Credible evidence supports the superior court's findings. We also conclude that the superior court did not err in rejecting plaintiffs' claim that the present system is "traceable" to post-statehood race-based antecedents. Plaintiffs contend that the superior court altogether failed to address this issue. Although the court's written decision did not expressly find that the present system was not traceable to an earlier state system, it expressly rejected the factual underpinnings for plaintiffs' claim of traceability. Having noted the traceability claim and then made its findings, the superi- or court at least implicitly addressed the issue. We therefore discern no analytical error on the superior court's part. And because we concluded above that Fordice does not apply to this case, the traceability issue has no special importance. To establish a discriminatory purpose in this case, plaintiffs had to demonstrate that the State of Alaska was motivated by discriminatory intent in creating a race-based system. Plaintiffs could not rely on intent attributable to federal or territorial officials. The traceability issue was therefore subsumed in plaintiffs' efforts to prove that the state was motivated by an intention to discriminate. The superi- or court considered the evidence potentially probative of that claim, and discussed much of it in detail in explaining why it was ruling against the plaintiffs. Because the superior court's findings are not clearly erroneous, we conclude that the historical evidence does not prove the existence of a discriminatory intent on the state's part, especially since no "series of official actions taken for invidious purposes" has been revealed. 4. Whether it was reversible error to dismiss the federal racial discrimination claim on summary judgment In granting summary judgment to the state on the federal equal protection claim asserted in plaintiffs' third cause of action, the superior court concluded that the plaintiffs "have not offered evidence that any disparate impact of the admittedly faeially-neu-tral standards for allocating certified police officers arises from an actual present intent to discriminate against Alaska Natives." Plaintiffs argue on appeal that they submitted "abundant, uncontradieted evidence proving precisely to the contrary." They contend that, given "the uncontradicted record" and "undisputed facts," we should rule as a matter of law for the plaintiffs on this claim. The state denies any intent to discriminate against Alaska Natives in allocating law enforcement services. It contends that the plaintiffs conceded "more than once" that state officials "bore no discriminatory intent and were operating with the best of intentions." To be entitled to summary judgment, a movant must demonstrate that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Plaintiffs' contention that the evidence supporting this claim is "undisputed" or "uncon-tradicted" is unwarranted. Most of the evidence they rely on was also offered at trial to support their state law claim that the state intentionally discriminates against Alaska Natives in allocating law enforcement services. Plaintiffs primarily rely on what they say is evidence of past discriminatory intent and the adoption or establishment of a system of allocating law enforcement services that discriminates based on race. But as the superior court observed, the contentions of past discrimination and the adoption or establishment of a discriminatory system form the basis for the plaintiffs' second cause of action — their Fordice-based claim that the state intentionally adopted or established a prior de jure race-based system for allocating law enforcement services and continues to operate that allegedly race-based dual system. Plaintiffs proceeded to trial on that cause of action, and lost, so it cannot be said that the evidence of historical discriminatory intent is undisputed. Plaintiffs' claim necessarily rests on the theory that the state relied on the availability of VPOs and VPSOs in deciding where to station troopers. They assume that if there were no VPOs or VPSOs, the state would allocate trooper services more favorably to Alaska Native villages. But if the allocation of trooper services is not discriminatory in the first place, the Equal Protection Clause would not entitle plaintiffs to a more favorable allocation of trooper services. There was evidence at trial that in allocating troop er services, the state did not rely on the availability of VPOs or VPSOs to alter trooper assignments. The superior court found that the VPO and VPSO programs were supplements to, rather than substitutes for, trooper services. Likewise, plaintiffs' contention that there is a "dual system" of law enforcement assumes that the state treats VPOs and VPSOs as alternatives to troopers. But credible evidence to the contrary supports the trial court's post-trial findings that those programs supplement the troopers and are not meant to be substitutes for trooper services. Plaintiffs' contentions ultimately also turn on evidence that the response times of troopers to incidents in Native villages, most of which are not accessible to the troopers by road from their hub posts, are greater than in locations on the road system. But those differences would not be legally significant for equal protection purposes unless the villages are similarly situated to on-road communities. The superior court's post-trial decision found that they are not. We therefore reject plaintiffs' contention that the evidence was so compelling that they were entitled to judgment as a matter of law on this federal claim. We recognize that when summary judgment was granted to the state on this claim, some evidence potentially supported the dismissed claim. Glenn Godfrey, then Director of the Division of Alaska State Troopers, stated in an affidavit that decisions about trooper location are not and have never been made "because of the racial, ethnic or cultural make-up of the community." But he also explained that trooper allocation decisions are based on the need for the position, the funding available to the division, the availability of other law enforcement services, the geographic location and transportation and communication services in communities, and the ability of positions to be mobile and flexible so as to provide assistance to other areas of the state if needed. (Emphasis added.) The emphasized reference could arguably be read in isolation, at least at the summary judgment stage, to imply that VPSOs were treated as providing substitute law enforcement services in Native villages and that the state took VPSO availability into account when it allocated trooper law enforcement services. The frailty of the probative value of this isolated reference would normally render it insufficient to create a genuine factual dispute, but given the extreme difficulty of proving discriminatory intent it would arguably be sufficient in this case. Nonetheless, the superior court's rejection of the.,identical state racial discrimination claim after trial makes it unnecessary to decide whether it was error to grant summary judgment to the state on the federal claim asserted in the third cause of action. The Alaska Constitution's guarantee of equal protection is at least as protective as the Federal Constitution's corresponding guarantee. The superior court's rejection'of plain tiffs' state claim after a trial on the merits establishes the harmlessness of any possible error in granting summary judgment to the state on the identical federal claim. Plaintiffs do not contend that they might have offered any additional evidence had the federal claim gone to trial, or that a different standard would have permitted them to succeed on their federal claim at trial even though they did not prevail on their state claim. Granting summary judgment on that claim therefore did not prejudice plaintiffs. 5. Whether it was error not to shift the burden of persuasion to the state. Plaintiffs also contend that because they established a prima facie case of racial discrimination, it was error not to impose the burden of persuasion on the state. They rely on two United States Supreme Court school segregation decisions to support their contention that the superior court should have put the burden on the state to justify its conduct. In Swann v. Charlotte-Mecklenburg Board of Education, the Court explained that where it is possible to identify a "white school" or a "Negro school" simply by reference to the racial composition of teachers and staff, the quality of school buildings and equipment, or the organization of sports activities, a prima facie case of violation of substantive constitutional rights under the Equal Protection Clause is shown.[ ] In Keyes v. School District No. 1, Denver, Colorado, the Court identified this quotation from Swann as defining a "history of segregation." The Court explained in Keyes that once a plaintiff has made out a prima facie case of a violation of substantive constitutional rights, the burden shifts to the state to justify its conduct. To satisfy that burden, the Court said that "it is not enough . that the school authorities rely upon some allegedly logical, racially neutral explanation for their actions. Their burden is to adduce proof sufficient to support a finding that segregative intent was not among the factors that motivated their actions." Plaintiffs rely on Keyes's statement that "a finding of intentionally segregative school board actions in a meaningful portion of a school system . creates a presumption that other segregated schools within the system are not adventitious." The plaintiffs argue that they made out a prima facie showing of a violation of substantive constitutional rights because they demonstrated a history of segregation in the provision of law enforcement services in Alaska, and because today it is still "easy to distinguish those law enforcement programs intended for Native communities from those intended for non-Native communities." They argue that "the vast majority of VPSOs are Native" and that troopers have better equipment, more training, and greater authority than VPSOs. The state responds by arguing that under Keyes, the burden-shifting only óecurs if the government has engaged in intentional segregation. It contends that the State of Alaska has not intentionally discriminated against Alaska Natives in providing law enforcement services. The state also argues that Keyes does not apply to the present fact scenario: "To compare the state's allocation of law enforcement resources to a 'practice of concentrating Negroes in certain schools' is not only misplaced, it is ludicrous." ' , Plaintiffs are incorrect in assuming that they made out a prima facie case of discrimination based on race. For the reasons we discussed above in Parts III.B.2 and 3, any pre-statehood discriminatory intentions motivating the federal government in implementing the old Indian Police program or other pre-statehood federal programs are not to be attributed to the State of Alaska. And given the facial neutrality of the state laws and policies that govern the activity that is at the core of this case — the allocation of trooper services — plaintiffs did not make out a prima facie case of racial discrimination by the state. We therefore conclude that the burden-shifting discussed in Keyes does not apply. The superior court did not err by failing to shift the burden to the state. 6. Whether the superior court applied the wrong intent standard Plaintiffs also contend that the superior court committed legal error by adopting the state's "three-part test" for determining whether law enforcement was racially based. - But we do not read the court's decision as adopting a "three-part test"; the cited passage of the court's post-trial findings simply discusses evidence that supports the superior court's ultimate conclusion that the state did not create a race-based system of law enforcement. The court was there permissibly distinguishing the VPSO program from the pre-statehood federal programs on which plaintiffs relied in attempting to prove their de jure claim. Plaintiffs also argue that it was error for the superior court in Paragraph 111 of its post-trial decision to require plaintiffs to show that race was a "determinative factor" for the state's action. The superior court, addressing the VPSO program, there concluded: "But Plaintiffs have not established that in creating the VPSO program, or in creating any predecessors to that program, the State established a system of law enforcement in which a person's race or a community's racial composition were determinative factors in the type of law enforcement services to be provided." (Emphasis added.) Citing Village of Arlington Heights v. Metropolitan Housing Development Corp., the plaintiffs argue that they only needed to prove that a discriminatory purpose was a "motivating factor," not a "determinative factor." The state responds that the plaintiffs did not prove that race was even a motivating factor in the state's development of its law enforcement programs. The Supreme Court explained in Personnel Administrator v. Feeney that even though race does not have to be the determinative'factor in a governmental decision for a court to find discriminatory intent, the government must have "selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." We conclude that although it would have been error to apply the determinative factor standard to the ultimate question — whether the allocation of law enforcement services by the troopers was racially motivated — any possible error here was harmless because plaintiffs failed to prove intent under the correct standard. That VPSO services were mainly available in off-road communities that were predominantly Alaska Native does not establish that the allocation of trooper services was racially motivated. It simply reflects demographic reality in Alaska, as do the comments of the creators of the VPO and VPSO programs. Recognition by thoughtful state officials that Alaska Natives are the dominant demographic group residing in rural Alaska, and would be most of the recipients of the proposed supplemental law enforcement services, does not prove that race was a motivation for their decisions. Nor does it prove that they sought to develop a dual law enforcement system, much less that they wished to provide separate and substitute law enforcement services in off-road communities. Instead, the evidence permits a logical conclusion that the state developed its system of rural law enforcement based on financial and geographical constraints, and an evaluation of crime rates in those locations. Likewise, we are unpersuaded by plaintiffs' assertion that the superior court erred in assuming that the plaintiffs were required to show that state officials acted on the basis of "hostility or racial disfavor toward Alaska Natives" in order to show intentional racial discrimination. They base this argument on their contention that "uneontradicted evidence" shows that the state "intentionally operates separate policing programs for Native villages." That Native villages are the primary beneficiaries of the VPO and VPSO programs does not compel a conclusion that the state intends to discriminate against Native villages; it only establishes that villages with those programs are provided services that other communities do not receive. The real question here is whether the state's allocation of law enforcement services by APSC-certified police officers was motivated by a discriminatory purpose. As to that question, the evidence produced at trial does not establish that the superior court clearly erred in finding that it was not. D. State-Based Equal Protection Claim Alleging Discrimination Against Off-Road Communities in Providing Police Protection Plaintiffs' fourth cause of action asserted an equal protection violation based on allegations that the state, in providing police protection, treats residents of off-road communities less favorably than residents of on-road communities. We assume with respect to this "geographic discrimination" claim that, as plaintiffs contend and the superior court concluded, police protection is an "important right" for purposes of equal protection analysis. Following trial, the superi- or court concluded that plaintiffs "have not proven that the State's existing system of allocating trooper resources deprives them of law enforcement services that are provided to similarly situated Alaskans." Plaintiffs contend that it was error to reject their geographic discrimination claim at trial. Most of their appellate argument addresses the issue of disparate treatment and the analysis required after disparate treatment is found. They contend that the superior court erred in finding that police protection in off-road communities was equal or superior to that in on-road communities. Although the state's appellate brief discusses the disparate treatment issue, it also argues that plaintiffs failed to prove that the "comparison groups" were similarly situated and that plaintiffs "failed to meet their threshold burden of proving similarly situated classes and systematic deprivation." In considering state equal protection claims based on the denial of an important right we ordinarily must decide first whether similarly situated groups are being treated differently. If they are, we apply a sliding scale of scrutiny to the challenged practice. In conducting that analysis, we first determine the importance of the constitutional right at stake. This is "the most important variable" in determining the applicable level of scrutiny. We then examine the state's interests. These interests may range from merely legitimate to compelling, depending on the burden that the challenged regulation places on the exercise of constitutional rights. Finally, we consider the means the state uses to advance its interests. Depending on the importance of the right involved, the means-to-ends fit may range from a substantial relationship, at the low end of the sliding scale, to the least restrictive means available to achieve that interest at the highest end of the scale. But in "clear cases" we have sometimes applied "in shorthand the' analysis traditionally used in our equal protection jurisprudence." If it is clear that two classes are not similarly situated, this conclusion "necessarily implies that the different legal treatment of the two classes is justified by the differences between the two classes." Whether two entities are similarly situated is generally a question of fact. The superior court found that plaintiffs failed to prove that the state's "existing system of allocating trooper resources deprives them of law enforcement services that are provided to similarly situated Alaskans." It appears that the superior court concluded that the comparisons the plaintiffs drew were fundamentally deficient. It found "significant differences between the Plaintiffs' home communities and many of the 'off-road' communities that Plaintiffs have characterized as 'places in the complaint.' " It noted the wide range in populations among the 165 places, the range of accessibility to nearby communities where APSC-certified police were stationed, and the presence or absence of VPSOs and VPOs in some of the places. Similarly; it also found that "[t]here are also significant differences among the 'on-road' communities . to which Plaintiffs have compared the 'places in the complaint.' " The court again noted the wide range in populations of the communities on the road system, and the range in distance and accessibility to trooper posts. Because there was ample credible evidence to support them, these findings were not clearly erroneous. The court also found that any discrepancies between the police protection received by off-road communities without local police and that provided by troopers to on-road communities "are due principally to the geographic isolation, weather conditions and transportation difficulties inherent in the location of many off-road communities.... " This finding accurately identifies significant and relevant physical differences between on-road communities and off-road communities. These non-trivial differences are inconsistent with a claim that on-road and off-road communities are similarly situated in ways that are relevant here. The plaintiffs argue that the superior court's findings on similarly-situatedness were limited. They claim that the superior court did not rule that the off-road and on-road communities were not similarly situated for equal protection purposes. They note that the superior court continued to conduct an equal protection analysis after making its findings on similarly-situatedness. They argue that the court would have had no reason to reach these issues if it had found that the off-road and on-road places were not similarly situated. We do not infer from the superior court's willingness to address other issues that it thought it was not resolving the similarly situated issue. It appears that the court was diligently and commendably addressing all issues that might be subject to appeal. Its thorough findings and conclusions leave no doubt that it was ruling that plaintiffs did not prove that they are similarly situated to others allegedly being treated more favorably. There is no basis for thinking that the court reasoned that it was not necessary to decide the issue. It flagged the issue in denying summary judgment to the state, and noted it again in Paragraph 116 of its post-trial decision, where it referred to the issue as "[a] critical threshold inquiry." The superior court's findings and conclusions permissibly distinguish on-road from off-road communities. The vast size of Detachment C, the geographical isolation of the off-road villages, the impossibility of traveling to them by road vehicle, and the greater susceptibility of non-road forms of transportation to the influences of weather, terrain, and distance all underscore the correctness of the superior court's findings on this issue. In other words, Alaska's physical realities dictate the result on this claim. Plaintiffs claim that such differences would automatically justify all disparities "no matter how invidious" if the state prevails — but these differences are founded in physical reality; the state did not create them. And although plaintiffs assert that the police protection the troopers provide must be reallocated, it is difficult to imagine how any reallocation could overcome the factors found by the superior court. Stationing a trooper in any given isolated village may give that village lower response times and benefit its residents, but will make it no easier for that trooper to reach other isolated communities and their residents as need requires. The state cannot realistically post a trooper in every remote village, and indeed plaintiffs conceded below that this is constitutionally unnecessary. It is therefore inevitable that troopers must travel to communities and that their ability to respond in person depends on such neutral and physical considerations as weather, daylight, and distance, and whether the community is accessible by road vehicle, or whether some more problematic form of transportation must be used. Plaintiffs argue that although there may be some differences between on-road and off-road places, "all Alaska communities, whether on or off the road grid, are similarly situated in the only two relevant ways — their basic need for and right to equal access to adequate police protection." (Emphasis in original.) They contend that if differences in size and isolation "rendered off-road residents dissimilar for equal protection purposes, rural residents would find themselves entirely outside of equal protection guarantees." But the physical dissimilarities here are directly relevant' and material to the issue of how Alaska State Troopers are to provide on-location law enforcement services. These dissimilarities show that the superior court did not clearly err in finding that the two asserted similarities are not the relevant, much less the only relevant, points of comparison for determining the issue of similarly-situatedness. E. Standing of Dismissed Plaintiffs Plaintiffs also argue that it was error to dismiss for lack of standing the claims of eight villages located in incorporated municipalities, and the claims of the Alaska Inter-Tribal Council and the Alaska Native Justice Center. We do not need to consider the standing of these dismissed plaintiffs. We ruled above that the superior court did not err in rejecting the remaining plaintiffs' equal protection claims on their merits, and there has been no suggestion that the dismissed plaintiffs could have offered additional evidence that could have changed the outcome on any of the equal protection claims. The dismissed plaintiffs have not explained what additional arguments or evidence they would have raised at trial, and they made no offer of proof. The superior court allowed the remaining plaintiffs to present evidence about all villages in Alaska, and they indeed offered evidence at trial about villages that had been dismissed as plaintiffs. Because the dismissed plaintiffs have not explained how their identical claims might have been resolved more favorably after trial, any possible error in dismissing them from the case was harmless. IV. CONCLUSION We therefore AFFIRM the superior court's judgment. APPENDIX IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT ANCHORAGE ALASKA INTER-TRIBAL COUNCIL, et al., Plaintiffs, v. STATE OF ALASKA, et al., Defendants. Case No. 3DI-99-00113 Cl DECISION AND ORDER 10. In Detachment C, there are trooper hubs in Aniak, Bethel, Dillingham, Galena, King Salmon, Kodiak, Kotzebue, Nome, and St. Mary's, which all serve as transportation hubs for travel by air to the adjacent communities. The location of trooper posts within Detachment C is based upon several factors including the availability of transportation, the requirement to provide support to state courts, and the location of correctional facilities and jails. 11. The Bethel trooper post has a state-owned aircraft and a full-time civilian pilot. The troopers from Bethel also travel on commercial flights. 12. The Bethel troopers serve Akiachak, Tuluksak, Akiak and other communities in the area. The Bethel trooper post has a toll-free number for calls from outlying communities. 13. Other agencies, such as the State Department of Health and Human Services Division of Family and Youth Services, also serve outlying communities from Bethel. Bethel has a regional center for victims of domestic violence and sexual abuse, and a regional child advocacy center. An inhalant abuse center recently opened in Bethel, which serves Bethel and outlying communities. 14. Troopers from the Bethel post respond to domestic violence calls from outlying communities. Troopers from Bethel called to outlying communities due to reports of sexual abuse often bring the victim back to Bethel with them for examination and followup investigation from the sexual abuse response team at the hospital in Bethel. Troopers also accompany social workers on crisis calls to outlying communities. 15. The availability of transportation and public health resources in Bethel supports the Department's decision to locate a trooper hub there. 16. The Aniak trooper post has a twin-engine airplane and pilot. When necessary, troopers from Aniak also serve Akiachak and Tuluksak. 17. Troopers from the Kotzebue post serve several other communities, including Kiana. Kotzebue troopers have a toll-free number for calls for service from outlying communities. 18. There are troopers stationed in Anchorage and Fairbanks who serve communities other than where they are stationed, since both Anchorage and Fairbanks have local police forces. The troopers are located in these communities because those urban areas are centers for communication, transportation, medical and other services and are surrounded by geographic areas over which the troopers have primary jurisdiction. 19. Some troopers located in hub communities are court service officers whose primary responsibility is to provide services to the court. In addition, troopers facilitate transfers of prisoners between state court and correctional facilities or jails. 20. Troopers assigned to rural posts are generally more experienced than troopers assigned to more densely populated areas. 21. The statewide allocation of troopers has shifted over time. The Alaska State Troopers have tended to protect the rural detachments from budget cuts. As a result, over the past decade the number of troopers in Detachments A, B, and E has been reduced while trooper staffing in Detachments C and D has increased. As of January 2002, the number of authorized commissioned officers in each detachment was as follows: Detachment Area Trooper Served Population Population Number of Troopers per Trooper A (Southeast) 10.961 15 731 B (Southcentral) 52,365 40 1,309 C (Western, Aleutian Chain, Kodiak Island) 40,776 42 971 D (Interior and Northern) 62,832 57 1,102 E (Kenai Peninsula) 33.961 31 1,096 Statewide Totals 200,895 185 1,086 At trial, the Defendants indicated there were a total of 52 troopers assigned to Detachment C, which would result in one trooper for every 784 citizens in that detachment served by the AST. However, the 52 trooper figure included Regional Public Safety Officers and Anchorage-based troopers assigned to service the Detachment C region. See Exhibit T-6. The Defendants had indicated that there were a total of 42 troopers actually stationed in Detachment C, and that is the figure used in this chart. As a result, the above figures may understate the number of troopers per person for Detachment C in comparison to the ratio for the rest of the state. As the above chart indicates, according to the 2000 census, approximately 200,895 Alaskans live in areas over which the troopers have primary jurisdiction. This figure excludes all Alaskans who receive their pri mary law enforcement services from a local police force. There are 185 Alaska State Troopers of the rank of sergeant or below who are actively engaged in case investigation in the state. Therefore, the statewide per capita allocation of active law enforcement Alaska State Troopers is one trooper for every 1,086 residents. The 2000 census shows 70,760 Alaskans living in Detachment C, which includes Akiachak, Tuluksak, Akiak, Kiana, and Clark's Point; Certified police from municipal departments serve 29,984 Alaskans within Detachment C. Thus, the remaining 40,776 Alaskans in the Detachment C area are served by troopers. As of fiscal year 2002, a total of 42 troopers were actively engaged in case investigation in Detachment C, creating a ratio of troopers per capita of one Alaska State Trooper per 971 residents in Detachment C. 22. Troopers throughout the state generally operate in a reactive mode, responding to calls for service. Troopers provide services to the communities served by their post based primarily on the number and nature of calls for service from those communities. Troopers attempt to respond to all emergencies immediately, and to respond to reports of felony activity as quickly as possible. Response time to calls for service both on and off the road system can depend on weather and the available methods of transportation. Response time can also depend upon prioritization of calls. Troopers have received many complaints from Alaskans both on and off the road system regarding the perceived delay in responding to calls for assistance. 101. At trial, Plaintiffs introduced evidence that there was an "Indian Police" program in effect in Alaska from approximately 1885 through 1907. 102. Plaintiffs offered evidence that the Indian Police program, when it was in effect, was a race-based system of law enforcement. As Plaintiffs' expert Stephen Conn indicated in his second report, "To the extent that [such] category of Native policeman was granted authority to enforce the law, the subjects of that authority were Natives in Native villages." [Exh. P-2 at 2] Plaintiffs demonstrated that the Indian Police at the turn of the last century were Alaska Native officers only; their jurisdiction was limited to offenses committed in Alaska Native villages; and they focused their attention exclusively on crimes involving Alaska Natives. 103. At trial, Plaintiffs did not present any direct evidence that the State of Alaska adopted the federal Indian Police model from the turn of the last century. As Plaintiffs acknowledged, their claim in that respect rested exclusively on circumstantial evidence of certain similarities between the federal Indian Police program and law enforcement programs established by the State after statehood. Like the former federal Indian Police officers, officers in programs established by the State of Alaska are clothed, paid, and supervised by various applicable governmental agencies. But because the same could be said of the vast majority of law enforcement officers worldwide, those similarities are worth little weight as evidence that the State of Alaska adopted the federal Indian Police program. 104. As the chart prepared by Professor Conn on cross-examination demonstrated, there are several important differences between the federal Indian Police program and programs established by the State of Alaska after statehood. For example, VPSOs working in Alaska today have considerably broader duties than the federal Indian Police officers had. Service in the Indian Police appears to have been limited to Alaska Natives, but service in the VPSO program is not limited to Alaska Natives. Further, there are VPSOs stationed in communities with populations that are not predominately Alaska Native, while Indian Police were limited to service in predominately Native communities. 105. At trial, Professor Angelí and others testified that the VPSO program was established based on the advice of knowledgeable people in the law enforcement field and did not represent an effort by the State to resurrect an old federal model of law enforcement that had been in place during the late 1800's and early 1900's. The passage of time between 1907 — the last date for which Plaintiffs have introduced evidence of the operation of the federal Indian Police program — and statehood further supports this court's finding that the State did not adopt the Indian Police program when establishing its law enforcement programs. 106. For the foregoing reasons, this court found that Plaintiffs did not prove that the State adopted the former Indian Police program when the State established its own law enforcement programs after statehood. 107. At trial, Plaintiffs also sought to prove that the State violated the equal protection clause of the Fourteenth Amendment of the United States Constitution by establishing and maintaining its own de jure race-based systems of law enforcement after statehood. Plaintiffs assert that the current VPSO program is directly traceable to race-based models of law enforcement that Plaintiffs allege the State of Alaska had established in the past. 108. With respect to this federal constitutional claim, Plaintiffs have acknowledged that none of the past or current state officials whose actions are challenged in this case have acted based on hostility or racial disfavor toward Alaska Natives. 109. Plaintiffs have identified several historical documents that they assert constitute evidence that the VPSO program as operated in Alaska today is traceable to explicitly race-based law enforcement program developed by the State in the past. 110. Although there are excerpts from Plaintiffs' exhibits that express a desire on the part of various State officials over the past decades to hire Alaska Natives and speakers of Alaska Native languages for village police or public safety positions, Plaintiffs did not demonstrate that being Alaska Native was a requirement for any such job. Plaintiffs also failed to demonstrate that any State programs as originally established or as currently operated limited the authority of village officers to enforce the law only against Alaska Natives. And Defendants demonstrated that there are at least two communities with VPSOs in which the population is predominantly non-Native. 111. Since long before statehood, the majority of the residents of Alaska's smallest and most remote communities have been Alaska Native. In developing community policing programs in these communities to supplement the law enforcement services provided by the AST, State officials have on occasion made reference to these demographics. But Plaintiffs have not established that in creating the VPSO program, or in creating any predecessors to that program, the State established a system of law enforcement in which a person's race or a communityis racial composition were determinative factors in the type of law enforcement services to be provided. 112. With respect to their federal equal protection claim, Plaintiffs have not proven that Defendants adopted or established a de jure race-based dual system of law enforcement to provide particular law enforcement services to Alaska Natives in remote locations and different law enforcement services to other Alaskans. Plaintiffs' State Equal Protection Claims 116. A critical threshold inquiry of Plaintiffs' state equal protection claim is a demonstration by Plaintiffs that due to the Defendants' policies and practices, Plaintiffs are receiving a different level of law enforcement services from other similarly situated Alaskans. 117. This court denied summary judgment to Defendants as to Plaintiffs' state equal protection claims because the parties disputed many of the material facts underlying the equal protection analysis. Alaska Rule of Civil Procedure 56. State v. Planned Parenthood, 35 P.3d 30, 46 (Alaska 2001). 118. At trial, both parties offered considerable evidence on the question of whether Plaintiffs are .provided law enforcement services inferior to those provided by Defendants to other Alaskans. Both parties submitted detailed statistical analysis of the allocation of trooper resources and extensive criticism of each other's statistical models. 119. At trial, Plaintiffs asserted that their home communities were among 165 "off-road" communities with at least twenty-five residents in which no law enforcement officer certified by the Alaska Police Standards Council was posted. The parties referred to those communities as "places in the complaint" and presented conflicting statistical and anecdotal evidence as to whether the "places in the complaint" receive law enforcement services inferior to those provided in communities "on the road system" that also lack local law enforcement personnel certified by the Alaska Police Standards Council. 120. There are significant differences between the Plaintiffs' home communities and many of the "off-road" communities that Plaintiffs have characterized as "places in the complaint." 121. The size of the "places in the complaint" varies considerably. Many of the 165 "places in the complaint" are less populated than the Plaintiffs' home communities. For example, Betties, Birch Creek, Ivanof Bay, Karluk, Kasaan, Lake Minchumina, Meyers Chuck, Nikolski, Platinum, and Red Devil all have populations of less than 50 people. [Ex. P-27] Other "places in the complaint" are much larger. For example, Hooper Bay has a population of more than one thousand people. 122. Some of the "places in the complaint" have relatively stable populations, while others have seasonal residents with weaker ties to the community. 123. Some of the "places in the complaint" have judicial facilities, while others do not. 124. Some of the "places in the complaint" are easily accessible from communities with officers certified by the Alaska Police Standards Council. For example, Pitka's Point is not far from St. Mary's. Teller is connected by road to Nome, which serves as a trooper hub. The Aleknagik South Shore Road is connected to Dillingham by a gravel road that troopers may use to respond to cahs. [Ex. P-58] 125. Other communities are relatively less accessible due to their distance from the hub post or other factors such as a lack of runway lights. 126.Some "places in the complaint" have VPSOs and/or VPOs. Akiachak and Tuluksak are among those communities. Approximately seventy-four of the "places in the complaint" have no local law enforcement or public safety personnel. Clark's Point is one of those communities. With the notable exception ' of an area that the parties label Kodiak Station and represent as having a population of almost two thousand people, the "places in the complaint" with no local law enforcement or public safety personnel are among the smallest communities in that group. [Ex. P. 27] 127. Some of the "places in the complaint" have restrictions on alcohol importation sale or possession; others do not. 128. At the time of the filing of this action, of the 165 off-road communities identified by the Plaintiffs as "places in the complaint," 129 are predominantly Native and 36 are less than 50 percent Alaska Native. Of the 36 predominantly non-Native communities, only three of the communities have any local law enforcement at all. Of the 129 predominantly Native communities, 88 of these communities (68%) have either a VPSO or a VPO. 129. The "places in the complaint" are not particularly similar to each other except insofar as the communities generally lack road access and resident certified law enforcement officers and are relatively small. 130. The law enforcement needs of the "places in the complaint" vary considerably and a variety of mechanisms might need to be employed in order to provide appropriate law enforcement services to those communities. 131. There are also significant differences among the "on-road" communities under the primary jurisdiction of the troopers to which Plaintiffs have compared the "places in the complaint." 132. Some of the communities Plaintiffs categorize as being "on-road" are large, while others are small. They range from an area designated as "College," with a population of 12,407 to Ekuk, with a population of 2. [Ex. P-34] 133. The "on-road" communities vary in distance from trooper posts, population density, economic stability, age of population, and other factors that might correlate to the relative need for law enforcement services. Some "on-road" communities can be reached relatively easily from urban centers such as Anchorage or Fairbanks, while others are more remote. Some communities characterized as being "on-road" are located on islands with roads that are connected to Alaska's larger highway system only by ferry service. 134. Because the "places in the complaint" are not similar as a group to Plaintiffs' home communities, and because the communities characterized as being "on-road" are not uniformly similarly situated to the "places in the complaint," this court does not find the parties' statistical analyses of the allocation of trooper resources between "places in the complaint" and "on-road" communities to be particularly helpful to answering the question of whether Plaintiffs are provided comparatively inferior law enforcement services from the Alaska State Troopers. 135. The majority of individuals served by the AST in Detachment C live in off-road communities. Residents in this detachment have a trooper ratio of one trooper for every 971 residents. 136. The majority of individuals served by the AST in Detachments B and E live in on-road communities. Residents in each of these detachments have fewer troopers per capita than Detachment C, with one trooper for over 1,000 residents. See Finding # 21, above. 138.The State has also demonstrated that the difference in crime rates between on-road and off-road communities is not of such a magnitude that a different per capita allocation of law enforcement resources is mandated for these two types of communities. Taken as a whole, neither group of communities can be said to experience significantly more crime than the other. Although there are disparities in the types of crimes between on-road and off-road communities, the overall crime rates are comparable. AST has fairly allocated troopers in a manner that adequately addresses the crime risk experienced in on-road and off-road communities. 139. Plaintiffs did present testimony that suggested that residents of off-road communities lacking a regular presence of certified law enforcement officers experienced particular difficulties in the receipt of law enforcement services. As Commissioner Godfrey acknowledged at trial, an off-road community without any local police may not be receiving the same level of police protection that the troopers are able to provide to on-road communities. [Tr. at 1038]. But this court finds these discrepancies are due principally to the geographic isolation, weather conditions and transportation difficulties inherent in the location of many off-road communities, and not to an unconstitutional under-allocation of trooper resources to the more remote communities in -this state. Cf. Massachusetts Gen. Hosp. v. Weiner, 569 F.2d 1156, 1161 (1st Cir.1978) (holding no denial of equal protection where, for purposes of setting Medicare rates, there is uniform treatment of urban teaching hospitals and rural hospitals) cited in Evans v. State of Alaska, 56 P.3d 1046, 1055 (Alaska, 2002). The Plaintiffs have not demonstrated that the Defendants' policies and practices have had the effect of systematically depriving Plaintiffs of law enforcement services provided to other Alaskans. 140. Plaintiffs have not demonstrated that the racial composition of a community is a factor that affects the allocation of Alaska State Trooper case-related hours to that community. 141. Many off-road communities, including some of the communities that are home to Plaintiffs, have VPSOs and/or VPOs who provide additional and significant law enforcement services to residents in addition to the law enforcement services provided by the troopers. These additional law enforcement services are not generally available in on-road communities, and provide further support for this court's conclusion that no violation of equal protection has been demon strated in the allocation of law enforcement resources to the Plaintiffs. 142. This court's conclusion that no equal protection violation has been demonstrated is based on this court's review of the allocation of law enforcement resources in the State of Alaska during the pendency of this litigation. Plaintiffs introduced' as exhibits a large amount of historical materials that would tend to demonstrate a more disparate allocation of law enforcement resources in prior years and decades, indicating times when rural Alaskans, including rural Native Alaskans, received considerably less in the way of law enforcement services. This court need not and does not determine whether there may have ever been in years past a violation of equal protection in the provision of law enforcement services. In this same regard, the court also notes than the testimony and exhibits introduced at this trial demonstrated a remarkably high level of commitment by many individuals from many different perspectives over many years, all dedicated toward improving the delivery of law enforcement services to Alaskans, including but not limited to Native Alaskans, that reside in the more remote parts of this state. 143. As a matter of social and economic policy, there may be merit in the view of some of the witnesses at trial that remote communities in Alaska would be safer if the State posted troopers or other certified law enforcement officers on a full time basis within each such community. There may also be merit to the assertion of a number of witnesses that public safety needs would be better met if the VPSO program were strengthened by increasing the program budget to improve training, salaries, and equipment for VPSOs. Many such changes might be possible if more state resources were devoted to law enforcement in the Plaintiffs' home communities. But within the confines of the total resources allocated to law enforcement at this time, such changes could well be at the expense of law enforcement services in other communities or, on a broader scale, at the expense of other public health and safety services. 145. With respect to their state equal protection claim, Plaintiffs have not proven that that the State's existing system of allocating trooper resources deprives them of law enforcement services that are provided to similarly situated Alaskans. No violation of equal protection has been demonstrated on the basis of trooper allocation alone. And since, in this court's view, the VPSO and VPO programs are viewed as a valuable supplement to (and not a substitute for) the troopers' law enforcement services, their addition to some of the Plaintiff communities does not constitute an equal protection violation. Lack of Written Gtddelines 149. The court further finds that deployment of troopers from established posts is done on an individualized basis taking numerous factors into account. Plaintiffs have not demonstrated that race has been a factor in the, allocation of trooper resources. Rather, factors such as population, transportation capabilities, incidence of crime, location of judicial facilities, and budget realities have been used in the allocation of trooper resources. The court does not find that the failure to adopt written guidelines defining where it is appropriate to locate troopers has deprived the Plaintiffs of services provided to similarly situated Alaskans or violated their rights to due process under the Alaska Constitution or the United States Constitution. Conclusion Plaintiffs have not proven that the State of Alaska's law enforcement programs, policies, and practices challenged in this litigation violate any state or federal statutes or any provisions of the United States Constitution or the Alaska Constitution. Therefore, IT IS ORDERED that the Defendants are entitled to judgment on all remaining causes of action. Entered at Anchorage, Alaska this 30th day of September, 2002. /s/ Sharon Gleason Sharon L. Gleason Superior Court Judge . AS 18.65.140 creates the APSC, a panel authorized by statute to "establish minimum standards for employment as a police officer, probation officer, parole officer, municipal correctional officer, and correctional officer in a permanent or probationary position" and to certify persons as qualified to hold those positions. AS 18.65.220. . AS 18.65.240(b). AS 18.65.290(6)(A) defines "police officer" to mean a full-time employee of the state or a municipal police department with the authority to arrest and issue citations; detain a person taken into custody until that person can be arraigned before a judge or magistrate; conduct investigations of violations of and enforce criminal laws, regulations, and traffic laws; search with or without a warrant persons, dwellings, and other forms of property for evidence of a crime; and take other action consistent with exercise of these enumerated powers when necessary to maintain the public peace.... . AS 18.65.240(a). . The commander of Detachment C testified that it encompasses an area of about 260,000 square miles. Texas's area is 268,581 square miles. U.S. Dept, of Commerce, Bureau of Census, Statistical Abstract of the United States 213 (2004). . See http:Hcensta.ts.census. gov/data/AK/1600239 630.pdf (last visited Apr. 8, 2005). . 13 Alaska Administrative Code (AAC) 89.010(b), .150(3) (2002). . 13 AAC 96.900(12) (2002). . Commissioner Fitzgerald became a superior court judge in 1959, a justice of this court in 1972, and a United States District Court Judge in 1975. See http://www.fjc.gov/ Public/home.nsp/hisj (last visited Apr. 8, 2005). . 13 AAC 89.020(a) (2002). . 13 AAC 89.040(a) (2002). . AS 18.65.670(a) provides: There is created in the Department of Public Safety a village public safety officer program to assist local governments and villages through nonprofit regional corporations to appoint, train, supervise, and retain persons to serve as village public safety officers to administer functions relative to (1) the protection of life and property in rural areas of the state; and (2) providing probation and parole supervision to persons under supervision by communicating with and monitoring the activities and progress of these persons at the direction of probation and parole officers. . 13 AAC 96.010-.900 (2002). . 13 AAC 96.100 (2002). . 13 AAC 96.040(8) (2002). . The original plaintiffs were: the Alaska Inter-Tribal Council; the Alaska Native Justice Center, Inc.; Akiachak Native Community; Akiak Native Community; the Native Village of Aleknagik; the Chinik Eskimo Community (Golovin); the Native Village of Clark's Point; the Native Village of Gambell; the Native Village of Kiana; the Native Village of Teller; the Tuluksak Native Community; the Native Village of White Mountain; Hazel Apok, an Alaska Native resident of Kiana; Sharon Clark, an Alaska Native resident of Clark's Point; Esther Floresta, an Alaska Native resident of Clark's Point; Imogene Gardiner, an Alaska Native resident of Clark's Point; Willie Kasayu-lie, an Alaska Native resident of Akiachak; and Mike Williams, an Alaska Native resident of Ak-iak. . Ronald Otte was commissioner when plaintiffs filed their original complaint. Glenn God-frey was commissioner when plaintiffs filed their second amended complaint and at the time of trial. Delbert Smith was commissioner when plaintiffs filed their appeal and he was substituted as an appellee for Godfrey. Bill Tandeske is the current commissioner. See http://www.dps. state.ak.us/Comm /asp/tandeske.asp (last visited Apr. 8, 2005). . Section 1 of the Fourteenth Amendment of the United States Constitution provides in part: "[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Article I, section 1 of the Alaska Constitution provides: This constitution is dedicated to the principles that all persons have a natural right to life, liberty, the pursuit of happiness, and the enjoyment of the rewards of their own industry; that all persons are equal and entitled to equal rights, opportunities, and protection under the law; and that all persons have corresponding obligations to the people and to the State. . The second cause of action of the second amended complaint asserted: The State's intentional adoption of the territorial government's de jure race-based dual system of law enforcement, its intentional use of race in the design of its own de jure race-based dual system, and the continued operation of such system by the State to the present day, constitutes intentional racial discrimination in violation of Plaintiffs' rights to Equal Protection of the law under the Fourteenth Amendment to the United States Constitution, Article I, § 1, 3, and 7 of the Alaska Constitution and 42 U.S.C. § 1983. . The third cause of action of the second amended complaint asserted: Because the State's discriminatory treatment of Plaintiffs in the provision of police protection is based on race, the disparate impact of the dual system on Alaska Natives in the provision of APSC-certified police protection is attributable to intentional racial discrimination by the State, and therefore violates Plaintiffs' rights to Equal Protection of the law under the Fourteenth Amendment to the United States Constitution and Article I, § 1,3, and 7 of the Alaska Constitution and 42 U.S.C. § 1983. . The fourth cause of action of the second amended complaint asserted: The State's disparate treatment of residents of off-road outlying communities, including the Plaintiff villages and their residents, in the provision of police protection, discriminates against them in the provision of an important or fundamental right in comparison to the police protection provided to residents of on-road communities by the Alaska State Troopers, and accordingly violates Plaintiffs' rights to Equal Protection of the law under the Fourteenth Amendment to the United States Constitution and Article I, § 1, 3, and 7 of the Alaska Constitution. . Plaintiffs have not appealed the superior court's rejection of their substantive due process claims. . Alaska became a state on January 3, 1959, when President Eisenhower signed the Statehood Proclamation. Proclamation No. 3269, 3 C.F.R., 1959-1963 Comp. p. 4-5 (Jan. 3, 1959). . We attach as an Appendix to our opinion portions of the superior court's decision and order. . Spindle v. Sisters of Providence in Washington, 61 P.3d 431, 436 (Alaska 2002); Ganz v. Alaska Airlines, Inc., 963 P.2d 1015, 1017 (Alaska 1998). . Ganz, 963 P.2d at 1017. . Vezey v. Green, 35 P.3d 14, 19-20 (Alaska 2001). . Erica A. v. State, Dep't of Health & Soc. Servs., 66 P.3d 1, 6 (Alaska 2003); Kelly v. Joseph, 46 P.3d 1014, 1017 (Alaska 2002); Vezey, 35 P.3d at 20. Federal courts have taken the same approach. E.g., Plumber, Steamfitter & Shipfitter Indus. Pension Plan & Trust v. Siemens Bldg. Techs. Inc., 228 F.3d 964, 968 (9th Cir.2000); United States v. Allinger, 275 F.2d 421, 424 (6th Cir.1960). . Pers. Adm'r v. Feeney, 442 U.S. 256, 273-74, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-65, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 239-42, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). . The parties' briefs on this issue do not discuss the statutes and regulations that describe how the state allocates law enforcement services, including services provided by those certified police officers. . See City of Cuyahoga Falls, Ohio v. Buckeye Cmty. Hope Found., 538 U.S. 188, 194, 123 S.Ct. 1389, 155 L.Ed.2d 349 (2003). . United States v. Fordice, 505 U.S. 717, 731-32, 112 S.Ct. 2727, 120 L.Ed.2d 575 (1992) ("Such policies run afoul of the Equal Protection Clause, even though the State has . established racially neutral policies not animated by a discriminatoiy purpose."). . United States v. Fordice, 505 U.S. 717, 112 S.Ct. 2727, 120 L.Ed.2d 575 (1992) (holding that Mississippi had not sufficiently dismantled its prior de jure segregative university system even though it had implemented race-neutral policies). . Plaintiffs' second cause of action asserted that the state either intentionally adopted "the territorial government's de jure race-based dual system of law enforcement" or intentionally used race in designing "its own de jure race-based dual system," and that it continues to operate such a system. Their briefs do not discuss any relevant possible differences between the federal and state equal protection guarantees, and in discussing the Fordice claim, the superior court referred only to the Federal, and not the Alaska, Constitution. We assume that a successful Fordice claim would establish an equal protection violation under both constitutions. See infra note 63. . Fordice, 505 U.S. at 733 n. 8, 112 S.Ct. 2727. . Brown v. Bd. of Educ., 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (Brown II); Brown v. Bd. of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) [Brown I). . Fordice, 505 U.S. at 721, 112 S.Ct. 2727. . Id. at 723, 112 S.Ct. 2727. . Id. at 729, 112 S.Ct. 2727. . Id. at 728, 112 S.Ct. 2727 (internal citations omitted). . Id. at 733 n. 8, 112 S.Ct. 2727. . See Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1258 (Alaska 2001); see also Haroldsen v. Omni Enters., Inc., 901 P.2d 426, 431 (Alaska 1995); Johnson v. Alaska State Dep't of Fish & Game, 836 P.2d 896, 909 n. 22 (Alaska 1991). For a federal example see Wise v. Mead Corp., 614 F.Supp. 1131, 1134 (D.Ga.1985). . Fordice, 505 U.S. at 732 n. 6, 112 S.Ct. 2727. . The superior court did not find that the pre-statehood law enforcement system was race-based. Its findings imply that it thought the long-defunct federal Indian Police program would have been unconstitutionally race-based if it had not been conducted by the United States, whose trust relationship with Indians is unique. But that program had been abandoned by the federal government long before statehood. . See, e.g., Fordice, 505 U.S. at 728, 112 S.Ct. 2727. . Id. at 733 n. 8, 112 S.Ct. 2727. . The Indian Police program was apparently in effect from about 1885 to 1907. Even though Alaska as of 1907 could send a non-voting delegate to Congress, it had no legislative or district-wide self-government. Alaska Delegate Act, ch.2083, 34 Stat. 170 (1906). Its laws had been adopted by Congress. See, e.g., District Organic Act, ch. 53, 23 Stat. 24 (1884). Alaska formally became a territory and gained limited self-government in 1912. Territorial Organic Act, ch. 387, 37 Stat. 512 (1912). Alaska became a state on January 3, 1959. See supra note 22. . Keyes v. Sch. Dist. No. 1, Denver, Colo., 413 U.S. 189, 210, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973). . Johnson v. De Soto Bd. of County Comm'rs, 204 F.3d 1335, 1344 n. 18 (11th Cir.2000) (noting that "no court has applied Fordice outside of the education setting" and refusing to apply Fordice in Voting Rights Act challenge to' electoral system). . Fordice, 505 U.S. at 729, 112 S.Ct. 2727. . Id. . Id. at 731, 112 S.Ct. 2727. . Id. at 732 n. 6, 733 n. 8, 112 S.Ct. 2727. . Pers. Adm'r v. Feeney, 442 U.S. 256, 273-74, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-65, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 239-42, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). . Fordice, 505 U.S. at 732 n. 6, 112 S.Ct. 2727. . Sengupta, 21 P.3d at 1258; see also Era Aviation, Inc. v. Lindfors, 17 P.3d 40, 43-44 (Alaska 2000). . Arlington Haights, 429 U.S. at 267, 97 S.Ct. 555. . As we saw above, even though the Fordice traceability analysis does not apply here, evidence of the origins of the state's present system remains relevant under "traditional principles." Fordice, 505 U.S. at 732 n. 6, 112 S.Ct. 2727. . See 13 AAC 96.080 (2002) (setting out criteria for hire as VPSO). There is no ethnicity requirement for VPOs, either. See 13 AAC 89.010 (2002) (setting out criteria for hire as VPO). . AS 18.65.670(a) provides in part that VPSOs shall "administer functions relative to (1) the protection of life and property in rural areas of the state." . Arlington Heights, 429 U.S. at 267, 97 S.Ct. 555. . Alaska R. Civ. P. 56(c); Kollodge v. State, 757 P.2d 1028, 1031-32 (Alaska 1988). . Commentators have noted that there is "a broad consensus that discrimination today is generally perpetrated through subtle rather than overt acts." Michael Selmi, Proving Intentional Discrimination: The Reality of the Supreme Court Rhetoric, 86 Geo. L.J. 279, 284 (1997). It may even be unconscious. Charles R. Lawrence, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L.Rev. 317, 322 (1987). Government officials will almost never openly avow a discriminatory intent and they can usually express a benign purpose for a statute or policy. Erwin Chemerinsky, Constitutional Law, Principles and Policies 567 (1997). . See Stanek v. Kenai Peninsula Borough, 81 P.3d 268, 272 (Alaska 2003) ("[A]nalysis of equal protection claims under the federal constitution is, if anything, more forgiving than the approach we use under the Equal Rights Clause of the Alaska Constitution...."). See also State; Dep't of Health & Soc. Servs. v. Planned Parenthood of Alaska, Inc., 28 P.3d 904, 909 (Alaska 2001) ("Alaska's constitutional equal protection clause . protects Alaskans' right to non-discriminato-xy treatment more robustly than does the federal equal protection clause."); Williams v. State, Dep't of Revenue, 895 P.2d 99, 103 (Alaska 1995) ("Alaska's equal protection clause may be more protective of individual rights than the federal equal protection clause."); Gilmore v. Alaska Workers' Comp. Bd., 882 P.2d 922, 926 (Alaska 1994) (same); State, Dep't of Revenue, Permanent Fund Dividend Div. v. Cosio, 858 P.2d 621, 629 (Alaska 1993) ("Minimal scrutiny under our state constitution may be more demanding than under the federal constitution."); State v. Anthony, 810 P.2d 155, 157 (Alaska 1991) ("Alaska's equal protection clause is more protective of individual rights than the federal equal protection clause."); Sonneman v. Knight, 790 P.2d 702, 706 (Alaska 1990) ("[T]he federal equal protection clause is, if anything, less protective of individual rights than the state equal protection clause...."). . Cf. Coulson v. Marsh & McLennan, Inc., 973 P.2d 1142, 1149 (Alaska 1999) (holding that any error in granting summary judgment to one defendant was rendered harmless by jury's finding after trial that defendant's purported agent was not liable for torts claimed). . See Alvarez v. Ketchikan Gateway Borough, 91 P.3d 289, 296 (Alaska App.2004) (holding that "even if [the trial court] had erred in ruling that [defendant] had failed to establish a prima facie case of racial discrimination, that error would be harmless because [defendant] was allowed to fully litigate her claim"). . Plaintiffs apparently intend to apply this argument to both the trial and summary judgment portions of the proceedings below. . Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 18, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). . Keyes v. Sch. Dist. No. 1, Denver, Colo., 413 U.S. 189, 209, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973). . Id. at 209-11, 93 S.Ct. 2686. . Id. at 210, 93 S.Ct. 2686. . Id. at 208, 93 S.Ct. 2686. . The plaintiffs cite a 1991 report indicating that approximately thirty percent of VPSOs were not Native. . Keyes, 413 U.S. at 208, 93 S.Ct. 2686. . Appellees' Brief at 46 n. 43 (quoting Keyes, 413 U.S. at 201, 93 S.Ct. 2686). . We again assume that plaintiffs intend this argument to apply to the superior court's rulings both on summaiy judgment and after trial. . Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265-66, 97 S.Ct 555, 50 L.Ed.2d 450 (1977). . Pers. Adm'r v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979); see also McCleskey v. Kemp, 481 U.S. 279, 298, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). . Footnote 20 sets out the fourth cause of action. . The fourth cause of action, claimed both federal and state equal protection violations. The superior court granted summary judgment to the state as to the federal claim. Plaintiffs tried their state "geographic discrimination" claim. They do not argue on appeal that it was error to dismiss their corresponding federal claim on summary judgment. . Stanek v. Kenai Peninsula Borough, 81 P.3d 268, 270 (Alaska 2003). . Id.; State v. Planned Parenthood of Alaska, Inc., 28 P.3d 904, 909 (Alaska 2001). . Planned Parenthood, 28 P.3d at 909; Alaska Pac. Assurance Co. v. Brown, 687 P.2d 264, 269 (Alaska 1984). . Planned Parenthood, 28 P.3d at 909 (quoting Matanuska-Susitna Borough Sch. Dist. v. State, 931 P.2d 391, 396 (Alaska 1997)). . Brown, 687 P.2d at 269. . Planned Parenthood, 28 P.3d at 909; Brown, 687 P.2d at 271. . State v. Enserch Alaska Constr. Inc., 787 P.2d 624, 631-32 (Alaska 1989); Brown, 687 P.2d at 269. . Enserch, 787 P.2d at 631-32; Brown, 687 P.2d at 269-70. . Lauth v. State, 12 P.3d 181, 187 (Alaska 2000). . Id. (holding that "children with one economically secure parent who is providing for their care at least fifty percent of the time are not similarly situated with children having both parents economically eligible for benefits."). See also Lawson v. Helmer, 77 P.3d 724, 728 (Alaska 2003) (holding that civil defamation cases are dissimilar to criminal perjury cases); Shearer v. Mundt, 36 P.3d 1196, 1199 (Alaska 2001) (observing that attorney and non-attorney pro se litigants are not similarly situated); Brandon v. Corr. Corp. of Am., 28 P.3d 269, 276 (Alaska 2001) (holding that indigent prisoners are not similarly situated to indigent non-prisoners); Fairbanks North Star Borough Assessor's Office v. Golden Heart Utils., Inc., 13 P.3d 263, 273 (Alaska 2000) (holding that lessee of city's utilidor system was not similarly situated to lessees of floatplane slips); Rutter v. State, 963 P.2d 1007, 1013 (Alaska 1998) (holding that commercial fishers and sport fishers are not similarly situated); Meek v. Unocal Corp., 914 P.2d 1276, 1281 (Alaska 1996) (holding that worker who "lived near his work place and did not receive room and board" was not similarly situated with a "remote site worker") (emphasis in original); Shepherd v. State, Dep't of Fish & Game, 897 P.2d 33, 44 (Alaska 1995) (holding that resident and nonresident recreational users of Alaska fish and game are not similarly situated); Smith v. State, Dep't of Corr., 872 P.2d 1218, 1226 (Alaska 1994) (holding that discretionary and mandatory parolees are not similarly situated with respect to need for personal appearance hearing). . Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 n. 2 (2d Cir.2001). . Although geography and weather may justify some differences in how the state provides law enforcement services in rural areas, this case does not require us to consider whether the state's policies in providing law enforcement services were so lacking in fairness with respect to residents of rural communities as to give rise to a plausible substantive due process claim. Plaintiffs pleaded federal and state substantive due process claims that were dismissed on summary judgment, but do not appeal from the dismissal of those claims.

8976262

William B. RATLIFF, Appellant, v. STATE of Alaska, Appellee

Ratliff v. State

2005-04-15

No. A-8651

982

986

110 P.3d 982

110

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T18:27:13.756137+00:00

CAP

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

William B. RATLIFF, Appellant, v. STATE of Alaska, Appellee.

William B. RATLIFF, Appellant, v. STATE of Alaska, Appellee. No. A-8651. Court of Appeals of Alaska. April 15, 2005. David D. Reineke, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

2126

13512

OPINION MANNHEIMER, Judge. In late December 2002, a burglar broke into the Alaska Laundry in Juneau and stole almost $2000 from the safe. In the process of opening the safe, the burglar strewed the safe's powdery fireproofing material across the floor. The burglar left many shoeprints in this powder. When the police arrived to investigate the burglary, they "lifted" some of these shoeprints. The preserved shoe impressions revealed that the sole of the burglar's shoe had a waffle pattern, and that the sole was embossed with the letters "t", "n", "i", "e", and "s". The police suspected that William B. Ratliff might have been involved in this burglary. Ratliff had an appointment with his probation officer the next afternoon, so a police officer was sent to interview Ratliff when Ratliff arrived for this appointment. The officer asked Ratliff if he had been in the Alaska Laundry the day before. Ratliff declared that he had never been in that laundry. The officer then asked Ratliff to show him the bottoms of his shoes. The officer could see that the soles of Ratliffs shoes appeared to match the shoeprints found at the laundry, so the officer left the interview room to make a telephone call. Ratliff took this opportunity to run from the building. Ratliff was arrested the next day while he was purchasing new shoes at a shopping mall. Ratliff was subsequently tried and convicted of burglary, theft, and criminal mischief. In this appeal, Ratliff challenges the admissibility of certain testimony offered by the government at his trial. Lesley Hammer, a criminologist employed at the State Crime Laboratory, compared the shoeprints left at the laundry with the patterns on the bottom of Ratliffs shoes. Hammer ran side-by-side comparisons, and she also performed overlay comparisons. She found that some of the shoeprints at the laundry were "consistent" with Ratliffs shoes — ie., they were made by Ratliffs shoes or by other shoes of the same brand or similar manufacture. However, with respect to two of the shoeprints, Hammer concluded that these prints were made by Ratliffs particular shoes (not just shoes of the same brand or similar manufacture). In the superior court, Ratliff objected to Hammer's testimony. He argued that shoe-print comparison was not valid science under the test enunciated by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., and later adopted by the Alaska Supreme Court in State v. Coon. Superior Court Judge Larry R. Weeks held an evidentiary hearing on this issue. At this hearing, Hammer was questioned regarding her training and experience, and also regarding the procedures and methods used by her and other shoeprint examiners. Hammer described how shoeprints are taken and preserved, and she described how these prints are then compared to particular shoes. At the conclusion of this hearing, Judge Weeks concluded that the type of shoeprint analysis performed by Ms. Hammer was not "scientific" for purposes of the Daubert-Coon rule. Alternatively, Judge Weeks found that the type of shoeprint analysis described by Ms. Hammer met the Daubert criteria. Finally, Judge Weeks concluded that Hammer's testimony was admissible under Evidence Rule 702 because her specialized knowledge and training in this area would assist the jury in understanding the shoe-print evidence and assessing its significance. In this appeal, Ratliff takes issue with Judge Weeks's conclusion that the Daubert-Coon test did not apply to Hammer's testimony — i.e., the judge's conclusion that shoe-print analysis does not depend on the sort of scientific methodology governed by Daubert and Coon. Ratliff takes the position that the Daubert criteria apply, not just to scientific testimony, but to all expert testimony that is based on technical training or specialized knowledge. Accordingly, Ratliff contends that Judge Weeks abused his discretion when he ruled that it was unnecessary to subject Hammer's testimony to a Daubert analysis. Ratliff asks us to vacate Judge Weeks's ruling, to remand his case to the superior court, and to direct Judge Weeks to conduct a Daubert analysis of Hammer's testimony. Ratliff relies on the Supreme Court's decision in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). In Kumho Tire, the Supreme Court concluded that the admissibility of all expert testimony, not just scientific expert testimony, is dependent upon a showing of relevance and reliability. The Court suggested that the Daubert criteria for evaluating the validity of scientific evidence might be pertinent outside a scientific context — although the Court conceded that other factors (i.e., factors not mentioned in Daubert) might also have a bearing on the reliability of testimony based on technical or other specialized knowledge. In rejecting a fixed dividing line between "scientific" evidence and other evidence based on technical or other specialized knowledge, the Court noted: [I]t would prove difficult, if not impossible, for judges to administer evidentiary rules under which a gatekeeping obligation depended upon a distinction between "scientific knowledge" and "technical" or "other specialized" knowledge. There is no clear line that divides the one from the others [, and] conceptual efforts to distinguish the two are unlikely to produce clear legal lines capable of application in particular cases. Kumho Tire, 526 U.S. at 148, 119 S.Ct. at 1174. At the same time, however, the Supreme Court emphasized that it was not saying that all of the Daubert factors necessarily applied to all kinds of expert analysis. The ultimate question is whether the offered evidence is based on valid principles and methodology. In answering this question, the Supreme Court declared, trial judges must have leeway in analyzing whether the Daubert factors, or some of the Daubert factors, are pertinent to the assessment of the methodo logical validity of the particular evidence being offered in each case. Our supreme court has not yet decided whether to adopt the rule of Kumho Tire as a proper interpretation of Alaska evidence law. But even if we were to follow the rule of Kumho Tire, that rule would not support Ratliffs position in this appeal. Ratliff is wrong when he asserts that trial judges are obliged to apply the Daubert criteria to all expert testimony. The Supreme Court carefully worded Kumho Tire to avoid this result. What Kumho Tire requires trial judges to do is evaluate whether the Daubert factors are pertinent to assessing the methodological validity of the particular challenged evidence in their case. The record shows that Judge Weeks fulfilled this duty. When Ratliff raised his Daubert objection, Judge Weeks held a hearing so that Lesley Hammer could explain the principles and methods used by forensic examiners to preserve shoeprints and conduct shoeprint comparisons. Ratliff offered no competing testimony (or any other evidence) on these matters. At the end of this hearing, Judge Weeks concluded that he could adequately assess the methodological validity of the proposed shoeprint testimony without conducting a formal Daubert analysis. Kumho Tire holds that a judge's decision on this issue is to be upheld unless it constitutes an abuse of discretion. Here, we find no abuse of discretion. Hammer's explanation of shoeprint comparison and analysis did not rest on arcane scientific principles, or on the results of experiments or tests that could only be understood and interpreted by experts. Instead, her analysis rested on visual comparisons of physical samples: shoeprints "lifted" from the scene of the crime, the shoes obtained from Ratliff, and shoeprint transparencies made from Ratliffs shoes. Hammer explained how these physical examples were created and how they were compared. She acknowledged that a lay person might be able to recognize the salient similarities or differences between a given shoe and a given shoeprint. She explained that her expertise lay in being able to spot small physical abnormalities that might escape a lay person's eye, and in being able to identify (through training and experience) which physical traits were characteristic of a class or group of shoes, as opposed to the physical traits unique to a particular shoe (e.g., individual manufacturing defects or patterns of wear). Indeed, at the conclusion of Hammer's testimony, when Judge Weeks asked Ratliffs attorney if she had any argument to present regarding the scientific validity (or lack of validity) of Hammer's analysis, the defense attorney had nothing to say. She simply responded, 'Tour Honor, as far as whether the general techniques [of shoeprint analysis] are acceptable or not, I will just let the Court rule on that." We doubt that such a response is sufficient to preserve a challenge to Judge Weeks's ruling. But even assuming that this issue was properly preserved for appeal, the fact remains that Ratliff has pointed to nothing in the record that casts doubt on the methodological validity of Hammer's shoeprint comparison and analysis — nothing to suggest that Judge Weeks abused his discretion when he concluded that he could adequately assess the validity of the challenged testimony without going through a formal Daubert analysis. We note that other courts have likewise concluded that the test for evaluating the validity of scientific evidence does not apply to shoeprint analysis. In People v. Perryman, the Colorado Court of Appeals held that the older test for evaluating scientific evidence (the Frye test) did not apply to shoeprint analysis because the comparison of the defendant's shoes to the prints found at the scene "involve[d] no manipulation of physical evidence" and because "the expert's techniques [were] readily accessible to the jury and not dependent upon familiarity with highly technical or obscure theories". Similarly, in Belton v. State, the Georgia Supreme Court held that "the comparison of shoe prints to the external physical characteristics of particular shoes is not a matter of scientific principle or technique". The court explained that the challenged expert testimony "did not deal with scientific princi-píese,] but with observation and comparison of physical objects, with matters not of science but of skill and experience". The Supreme Court of Maine reached the same conclusion in State v. Boobar. Moreover, as we explained above, Judge Weeks also ruled (in the alternative) that the testimony presented at the hearing satisfied the Daubert inquiry. Ratliff does not address this alternative ruling, much less offer any reasons for believing that this ruling was wrong. We note that other courts have concluded that the type of shoeprint analysis conducted in Ratliffs case meets the Daubert test for methodological validity. See United States v. Allen, 390 F.3d 944, 949-950 (7th Cir.2004), and see the extended discussion of this issue in United States v. Mahone, 328 F.Supp.2d 77, 87-92 (D.Me.2004). For these reasons, we conclude that Judge Weeks committed no error when he overruled Ratliffs objection to the shoeprint evidence. The judgement of the superior court is AFFIRMED. . 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (construing the federal evidence rules governing expert testimony). . 974 P.2d 386 (Alaska 1999) (adopting Daubert as the proper interpretation of Alaska's rules governing expert testimony). . On page 275 of the transcript, Judge Weeks's finding is rendered: "I think that Ms. Hammer . has also testified to things that . meet the Daubert criteria as expressed by Professor En-gleride." [sic ] We assume that Judge Weeks actually said, "Professor Imwinkelried". Professor Edward J. Imwinkelried is the author of numerous articles on Daubert and scientific evidence. . 526 U.S. at 141, 119 S.Ct. at 1171. . 526 U.S. at 147-49, 119 S.Ct. at 1174-75. . Id., 526 U.S. at 149-150, 119 S.Ct. at 1175. . Guerre-Chaley v. State, 88 P.3d 539, 542 n. 4 (Alaska App.2004); Cf. State v. Coon, 974 P.2d 386, 395 (Alaska 1999) ("[scientific] testimony [must] be derived by the scientific method [or] based on scientifically valid principles"). . Kumho Tire, 526 U.S. at 150-52, 119 S.Ct. at 1175-76. . Id., 526 U.S. at 152-53, 119 S.Ct. at 1176. . See Hohman v. State, 669 P.2d 1316, 1325-26 (Alaska App.1983) (holding that when an attorney responded to a relevance objection by simply stating, "I'll accept the ruling from the court", the attorney could not challenge the court's ruling on appeal). See also Willis v. State, 57 P.3d 688, 691-92 (Alaska App.2002) (defense attorney failed to advance any grounds to support a request for a mistrial); Petersen v. State, 930 P.2d 414, 434 (Alaska App.1996) (defense attorney declined to argue the point or provide any rationale for giving a requested jury instruction); Cornwall v. State, 915 P.2d 640, 653 n. 11 (Alaska App.1996) (same). . 859 P.2d 263, 267 (Colo.App.1993). . 270 Ga. 671, 512 S.E.2d 614, 617 (1999). . Id. . 637 A.2d 1162, 1167 (Me.1994).

11441663

Charles J. CONRAD, Appellant, v. STATE of Alaska, Appellee

Conrad v. State

2002-09-27

No. A-8065

313

316

54 P.3d 313

54

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T18:27:54.967740+00:00

CAP

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

Charles J. CONRAD, Appellant, v. STATE of Alaska, Appellee.

Charles J. CONRAD, Appellant, v. STATE of Alaska, Appellee. No. A-8065. Court of Appeals of Alaska. Sept. 27, 2002. Eugene B. Cyrus, Law Office of Eugene Cyrus, P.C., Eagle River, for Appellant. Robert J. Collins, Assistant District Attorney, Palmer, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

1791

10719

OPINION STEWART, Judge. This case requires us to construe the offense of driving while intoxicated under AS 28.85.080(a)(2). This subsection of the statute makes it a crime to operate or control a motor vehicle "when, as determined by a chemical test taken within four hours after the alleged offense," a person's blood contains 0.08 percent or more alcohol (by weight) or a person's breath contains 0.08 grams or more aleohol per 210 liters. The question is this; Does AS 28.35.030(a)(2) define the offense in terms of the test result-so that the State must prove only that the chemical test yielded a result of 0.08 or higher (assuming the test was properly administered within the prescribed four hours)? Or does the statute require the State to prove that the defendant's blood alcohol level was 0.08 or higher at the time the defendant operated or controlled a motor vehicle-so that the test result is merely cireumstantial evidence of the fact that must ultimately be proved? As we explain in this opinion, we conclude that the statute requires proof of the defendant's blood alcohol level at the time the defendant operated or controlled a motor vehicle. Underlying proceedings Charles J. Conrad was tried for driving while intoxicated under both the "impairment" theory codified in AS 28.85.030(a2)(1) and the "blood alcohol level" theory codified in AS 28.35.030(2)(@2). The trial judge instructed the jury that, for purposes of assessing Conrad's guilt under the "blood alcohol level" theory, it was sufficient for the State to prove that a chemical test administered within four hours of Conrad's operation of the vehicle yielded a result of 0.10 or greater. The State's evidence showed that, about an hour and a quarter after Conrad was stopped by the police, he submitted to an Intoximeter test; the test result was a blood alcohol level of 0.154 percent. One half-hour later, Conrad obtained an independent blood test; this test showed that Conrad's blood aleohol level was 0.131 percent. Conrad presented what he called the "big gulp" defense: He claimed that he had quickly consumed two beers just before he drove. Conrad contended that even though his blood aleohol level was illegally high an hour or so later after he was stopped, his blood alcohol level had been within legal limits at the time he was driving. At trial, Conrad presented an expert witness-retired pathologist Donald R. Rogers-to explain that, based on Conrad's blood test result, and using the assumption that Conrad had consumed two beers just before driving, and using average alcohol absorption and elimination rates, Conrad's blood aleohol level at the time he was driving could have been less than 0.10 percent. But, as explained above, the trial judge instructed the jury that Conrad's proposed defense was actually no defense; the judge told the jury that Conrad's guilt hinged on the test result and not his actual blood aleo-hol level at the time he was driving. The jury convicted Conrad, returning a general verdict that did not specify whether they found Conrad guilty under subsection (a)(1), subsection (a)(2), or both. A defendant's guilt under AS 28.35.030(a)(2) hinges on the defendant's blood alcohol level at the time the defendant operated or controlled a motor vehicle, not on the defendant's test result In Mangiapane v. Anchorage, we were called upon to construe the meaning of AS 28.40.060, a statute that declares that a driver's chemical test result is not to be adjusted to account for the testing instrument's margin of error. In the course of our discussion in Mangiapane, we described AS 28.35.030(a)(2) in a way that suggested that a driver's guilt rests on the driver's test result: AS 28.40.060 effectively declares that a driver violates AS 28.85.080(a)(2) if, within four hours of driving, the driver is tested on a properly calibrated, properly functioning Intoximeter and the driver's test result is at least .10 percent blood-aleohol or the equivalent .10 grams of alcohol per 210 liters of breath. The fact that the driver's true blood-aleohol or breath-aleohol level may be slightly lower (due to the Intoxime-ter's acknowledged margin of error) is no longer relevant to the driver's guilt under AS 28.35.030(a)(2). We now conclude that we did not speak carefully enough. The issue in Mangiapane was the effect of the newly enacted AS 28.40.060. Mangic-pane did not directly raise the issue that confronts us in Conrad's case: Whether the State must prove that a motorist's blood alcohol level was above the legal limit at the time of the testing or, instead, at the time the motorist operated or controlled the vehicle. In Doyle v. State, we construed a related statute-AS 28.35.083-that establishes various presumptions as to whether or not a driver is impaired by alcohol, depending on the result of the driver's chemical test. In Doyle, we construed this statute to create a rebuttable presumption that a driver's blood alcohol level at the time of the offense was equivalent to the result of the chemical test administered to the driver later. In other words, Doyle suggests that the ultimate fact to be proved is the driver's blood aleohol level at the time of the offense, not at the time of the test. At the same time, however, Doyle interpreted AS 28.35.0833 as authorizing the State to rely on the presumption that the driver's test result was at least as high as the driver's blood alcohol level at the time of the offense-so that "it would [not] be necessary for the state to call expert witnesses in every case to establish by extrapolation the blood aleohol content of the defendant at the time of the alleged offense. It appears that the Alaska Legislature would have the authority to define the offense in terms of the defendant's test result at a test administered within a specified time after the defendant operated or controlled a motor vehicle-even though the test result might be higher than the defendant's blood alcohol level at the time the defendant operated or controlled the vehicle. Our review of case law and statutes from other jurisdictions reveals that a number of state legislatures have done this. In these states, however, the statutes clearly specify that a defendant's guilt rests on the test results and that the defendant's actual breath or blood alcohol content at the time of driving is not an element. For example, the Arizona Court of Appeals explained that its state legislature had "concluded that a person with a [blood alcohol content] of 0.10 or greater within the two-hour period poses a sufficient danger to the public to justify broadening the statutorily proscribed conduct. The New Jersey Supreme Court found that its state legislature reached the same general conclusion. But the wording and history of AS 28.35.030(a)(2) yield no such expression of legislative intent. We find no indication that the Alaska Legislature, either when it passed AS 28.85.030(a)(2) or when it later passed AS 28.40.060, intended to shift the focus away from the defendant's blood aleohol level at the time of driving and to make the test result determinative of the defendant's guilt. Accordingly, despite the wording of our decision in Mangiapane, we conclude that a defendant's guilt under AS 28.35.030(a)(2) hinges on the defendant's blood alcohol content at the time the defendant operated or controlled a motor vehicle. At the same time, we re-affirm the approach we took in Doyle: If a chemical test is administered to the defendant within the statutorily prescribed four hours, the test result will create a presumption that the defendant's blood alcohol level was at least as high at the time the defendant operated or controlled the vehicle (And, as stated in AS 28.40.060, the test result is not to be adjusted for the testing machine's margin of error.) The defendant may introduce evidence to rebut this presumption (as Conrad did in this case), but if the presumption is unrebutted-either because the defendant does not challenge it, or because the jury does not believe the defendant's contrary evidence-then the presumption created by the test result is enough to support a conviction. (Of course, the State may choose to introduce evidence to show that a defendant's blood alcohol level at the time of the offense was actually higher than at the time of the test.) Conclusion The judgment of the district court is REVERSED. Conrad is entitled to a new trial. . Conrad was prosecuted under the former version of AS 28.35.030(a)(2). Since then, the legislature has lowered the allowable level of alcohol to 0.08 percent. . 974 P.2d 427 (Alaska App.1999). . 974 P.2d at 430 (emphasis in original). . 633 P.2d 306 (Alaska App.1981). . See id. at 309-10. . Id. at 310. . See, eg., State v. Oliver, 343 N.C. 202, 470 S.E.2d 16, 23-24 (1996) (the per se offense prohibits driving on a state highway having "consumed sufficient alcohol that at any relevant time after the driving the defendant had an alcohol concentration of [0.08] or more"); State v. Martin, 174 Ariz. 118, 847 P.2d 619, 623 (App.1993) ([S]ection 28-692(A)(2) now provides that it is illegal to have a BAC of 0.10 or more within two hours of driving-rather than a BAC of 0.10 at the time of the offense as provided in former section 28-692(A)(2)"); Purser v. State, 201 Ga.App. 839, 412 S.E.2d 869, 870 (1991) (among other things, the DWI statute "made it unlawful for a person to drive or to be in physical control of a moving vehicle after having consumed alcohol if at any time within the three-hour period after such driving or being in physical control ended, he or she registered a blood-alcohol concentration of 0.12 grams or more as a result of such prior alcohol consumption."); State v. Tischio, 107 N.J. 504, 527 A.2d 388, 388-89 (1987) (court ruled that "it is the blood-alcohol level at the time of the breathalyzer test that constitutes the essential evidence of the offense."). . Cacavas v. Bowen, 168 Ariz. 114, 811 P.2d 366, 368 (App.1991). . State v. Tischio, 107 N.J. 504, 527 A.2d 388, 388-89 (1987). . See Erickson v. Anchorage, 662 P.2d 963, 967 (Alaska App.1983) (Singleton, J., concurring) (''the breathalyzer result alone established a pri-ma facie case, entitling the municipality to go to the jury on the issue of Erickson's blood-alcohol level at the time of her driving.").

11441537

CENTRAL BERING SEA FISHERMEN'S ASSOCIATION and Carl Merculief, Appellants, v. Susan D. ANDERSON, Appellee

Central Bering Sea Fishermen's Ass'n v. Anderson

2002-09-06

No. S-9955

271

285

54 P.3d 271

54

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:27:54.967740+00:00

CAP

Before: MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

CENTRAL BERING SEA FISHERMEN'S ASSOCIATION and Carl Merculief, Appellants, v. Susan D. ANDERSON, Appellee.

CENTRAL BERING SEA FISHERMEN'S ASSOCIATION and Carl Merculief, Appellants, v. Susan D. ANDERSON, Appellee. No. S-9955. Supreme Court of Alaska. Sept. 6, 2002. Rehearing Denied Nov. 18, 2002. Susan Orlansky, Jeffrey M. Feldman, Ruth Botstein, Feldman & Orlansky, Anchorage, for Appellants. Timothy J. Petumenos, Peter C. Nosek, Birch, Horton, Bittner & Cherot, Anchorage, for Appellee. Before: MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

7534

47909

OPINION MATTHEWS, Justice. I. INTRODUCTION A jury awarded Susan Anderson compensatory and punitive damages against Central Bering Sea Fishermen's Association and its president, Carl Merculief, based upon her claims of constructive retaliatory discharge, promissory estoppel, and defamation. The Association and Merculief challenge various aspects of the damages awards. We agree that the jury's award of lost earnings is excessive; however, we sustain the jury's punitive damages award. II. FACTS AND PROCEEDINGS Central Bering Sea Fishermen's Association is a nonprofit economic development organization established by fishermen in St. Paul in the Pribilof Islands in conjunction with the community development quota program ("CDQ"). The program was instituted by the North Pacific Fisheries Management Council to allocate a portion of the fisheries resource to the coastal villages of western Alaska. Carl Merculief was the president of the Association in 1997 and 1998. In late 1997 Susan Anderson approached the Association about working for it as an economic development project coordinator. At the time, Anderson held a similar job with Yukon Delta Fisheries Development Association, another CDQ group. After Anderson's first interview, Merculief told her that he would like to hire her but that he needed the approval of the Association board of directors. In January 1998 Merculief asked Anderson to start work with the Association, as Kathy Faltz, the office manager and controller, had suddenly fallen ill and Mereulief needed help with the corporation's accounting. At a January 9 meeting of the Association board of directors, which Anderson attended, Mereu- lief proposed hiring Anderson to do economic development work. After some discussion, the board agreed to hire Anderson and to pay her initially at the rate of $55,600 annually. The board also promised to give Anderson a written contract and to raise her salary to $60,000 if she successfully concluded a probationary period. The board instructed Anderson and Mereulief to negotiate an employment contract to present to the board for approval after the completion of her probation. Anderson began work on January 16, 1998. She performed some of Faltz's bookkeeping supervision and accounting duties in addition to her economic development responsibilities. Despite the burden of additional duties, Anderson performed well in her economic development work. During this time, personnel working for Anderson began to approach her to report irregularities and potential theft of Association assets by Faltz. When Anderson reported these allegations to Merculief, Merculief refused to look into the matter, citing Faltz's current illness. In early April 1998 Anderson and Mereu-lief negotiated a draft employment contract to present to the board. The board was to consider the proposed contract at its April 13 meeting; however, at the meeting the Asso-clation's attorney Roger DuBrock had a different version of the draft contract. The confusion over the multiple drafts of the contract was compounded by discussion of where this economic development position should be located-St. Paul or Anchorage-and whether or not the position should continue to exist if the Anchorage office closed. Anderson explained to the board the advantages of having an office in Anchorage and told the board that she would not be able to live and work on St. Paul. Due to the confusion over the multiple contract drafts and the contingency of the position on office location, the board voted not to approve Anderson's contract at that time; however, the board nonetheless assured Anderson that she was doing a good job and implied that it would approve a contract at a later date. Shortly after this board meeting, on April 16, the Association's day-to-day bookkeeper reported to Anderson that Mereulief had been charging personal expenses to the Association's credit card without submitting the proper reimbursements. Follow-up on this report revealed multiple instances in which Merculief appeared to have misappropriated company funds. Anderson informed two board members of the problem and asked if she had the authority to look into this matter. The board members responded that she did. On April 23, 1998, Anderson brought her concerns to DuBrock, the Association's attorney. DuBrock responded that they had to proceed very carefully, as making these allegations could threaten Anderson's job. The next morning, Merculief met Anderson at her office and, without explanation, told her to go home. Merculief then called DuBrock, insisting that he wanted to fire Anderson, but DuBrock advised that any action against Anderson would have to be taken by the board. That same day, the board met and decided that while it would order an audit to look into Anderson's allegations, Anderson would be suspended without pay. In addition, the board ordered that the locks to the Association offices be changed and that Anderson be instructed not to return to the Association and not to speak with any representative of the Association other than DuBrock. No one informed Anderson of the board's actions; however, Anderson received a call that same day from an industry colleague who had been told that Anderson no longer worked at the Association and that she had been fired. These statements convinced Anderson that she was being fired and on Monday morning she went to DuBrock to turn in her office keys and cell phone. She brought along a memorandum to which she had attached copies of business records documenting her concerns about Mereulief's use of Association funds. Later that morning, DuBrock delivered to Anderson a letter in which he issued the board's orders and informed her that she had until May 1, 1998, to document her concerns about fraud. Anderson retained counsel. On April 30, 1998, she wrote Du Brock, through counsel, and demanded her job back, asserting that she had a de facto contract for a definite term with the Association. She also warned that the Association's actions were improperly retaliatory. The next day Merculief contacted Henn Haight, the CDQ manager for the state, and reported that Anderson had falsely accused Mereulief of misappropriation and that she would be terminated for her misconduct. Merculief also told Haight that Anderson had threatened previous colleagues both personally and professionally. Haight passed along Merculief®'s remarks in an e-mail sent to a number of high officials in state government as well as members of the CDQ industry. On May 7, 1998, the Association board held a meeting in which Anderson was accused of: (1) breaking into Association offices; (2) illegally accessing the Association's computers; (3) stalking Mereulief; (4) making death threats; and (5) retaliating against the Association by accusing Merculief of wrongdoing after she was suspended. Neither of the two board members that Anderson had approached with her concerns voiced their knowledge that Anderson had raised her concerns prior to her suspension, not after. The board had DuBrock send a letter to Anderson explaining that the reason for her suspension was that an employee had told the board that Anderson was out to destroy Merculief. However, that employee reported to Anderson that the board's representation of her statement to them was untrue, that those present at the May 7 meeting wanted Anderson "gone," and that no one on the board cared about the Association's finances. Meanwhile, DuBrock commissioned an audit to examine the nine instances of fiscal concern that Anderson had identified. The board reviewed this audit-the results of which supported most of Anderson's concerns-at its May 22, 1998 board meeting. At that meeting Merculief® alleged that Anderson had instructed him to engage in misconduct; Anderson denied these allegations at trial. After some indecision as to what to do with Anderson, the board offered her the economic development job on St. Paul. The board simultaneously reelected Mereulief president, moved his position to St. Paul, and named as Anderson's supervisor a successful applicant for an internship that Anderson had created and advertised. Furthermore, the board did not offer Anderson a contract; instead, it appeared that her employment would be at will. When Anderson talked to others to investigate the sincerity of the offer, she found that the offer was "just a way [for the Association] to get rid of her." She thus declined to appear in St. Paul by September 1, 1998, as instructed. DuBrock wrote Anderson's attorney on September 11, 1998, asserting that the corporation considered Anderson's failure to appear a resignation. In order to protect herself, Anderson had begun circulating resumes and applying for jobs during the summer and fall of 1998. She accepted employment with Bank of America in mid-September at $45,000 per year. After the bank was sold in December 1998, Anderson quit her job at the bank and decided to go to school to become a barrister in Australia. Anderson filed suit against the Association and Merculief in November 1998. She went to trial in April 2000 on three causes of action: (1) constructive retaliatory discharge; (2) promissory estoppel; and (8) defamation. She brought the first two charges against the Association only; they are alternative theories behind Anderson's claim that she was wrongfully terminated, for which she sought past and future lost wages. Anderson based her defamation claim on nine statements made about her by Mereulief and other Association agents. Anderson claimed, and the court concluded, that most of these statements were defamatory per se. The jury found for Anderson on both of her theories of wrongful termination and awarded her $20,000 for lost back wages and $217,000 in lost future wages. The jury based the back pay award on the difference between Anderson's annual salary at the Association and her annual salary at Bank of America. They determined the future lost wages award by comparing the income Anderson would have had if she had remained at the Association for the duration of her working life with the income she would have had if she had remained at Bank of America until retirement. The jury also found that Anderson proved all nine of the defamatory statements she asserted. They held Mereulief responsible for eight of those statements and the Association responsible for two of them (including one that had also been attributed to Mercu-lief). The jury awarded Anderson $15,000 for emotional distress and $20,000 for loss of reputation as a result of the defamation. In addition, the jury awarded punitive damages in the amount of $200,000 against Merculief and $400,000 against the Association. The Association and Mereulief filed a comprehensive post-trial motion to set aside the verdict, strike components of the economic damages award, order a new trial, or grant a remittitur of the punitive damages awards. The trial court denied the motion in its entirety. The Association and Mereulief appealed the jury's awards to this court. III DISCUSSION A. Standard of Review The Association argues that the superior court erred in upholding the jury's award of economic damages, both because the award lacked adequate evidentiary support and because the court incorrectly applied the law. The determination of what law to apply is a legal question for which we use our independent judgment. The ade-quaecy of evidence supporting the jury's award is a mixed question of law and fact. As such, we review the evidence presented in the light most favorable to Anderson and evaluate de novo the legal question of whether that evidence is specific enough to support the jury's economic damages award. The Association also argues that Anderson's improper closing statement, the court's jury instructions on punitive damages caps, and the excessive nature of the punitive damages awards invalidate the jury's determination of punitive damages. This court reviews de novo the propriety of a closing statement. We use our independent judgment to determine the legality of a jury instruction. With regard to the excessiveness of punitive damages, we have reviewed a lower court's decision on a motion for re-mittitur or new trial for abuse of discretion. However, in light of the United States Supreme Court's decision of Cooper Industries, Inc. v. Leatherman Tool Group, Inc., we will review de novo the question of whether punitive damages are grossly excessive and thus unconstitutional under the due process clause of the Fourteenth Amendment. B. The Superior Court Erred in Upholding the Jury's Award of Economic Damages. Anderson presented the jury with alternative theories of wrongful termination: a claim of constructive retaliatory discharge and a promissory estoppel claim. The jury found in Anderson's favor on both claims. The Association's first point on appeal is that the jury's award of $20,000 in lost back wages and $217,000 in lost future wages cannot legally stand. The Association argues that based on substantially undisputed evidence, the contract contemplated by the parties was a one-year contract, terminable without cause on fifteen days notice, with a salary of $60,000-65,000 a year. At trial Anderson accepted the lower salary figure as more probable, and her economic expert used it in his damages calculations. Exe. 459 (Tr. 1692) The Association argues that if the contract had been signed and fully performed Anderson would have earned $60,000 and that this, less the amount that Anderson could expect to earn during one year of alternative employment, should reflect the maximum measure of her lost earnings. Anderson responds that while she expected a one-year contract, she also "reasonably expected to fulfill a long-term need [the Association] had for economic development, regardless of the form of a potential contract." She therefore argues that the expected term of the contract should not limit her damages for lost earnings. We agree with the Association's position that under the facts and cireumstances of this case Anderson's lost earnings should be measured by the amount and duration of the contract that she expected to have with the Association. "The goal of contract damages is to place the nonbreaching party in as good a position as if the contract had been fally performed." Here that goal is met by awarding to Anderson the year's salary she expected from the Association, less the amount she could expect to earn in alternative employment during that period. According to Anderson's calculations her award for a one-year loss of earnings should be approximately $13,000. Our precedent provides specific support for limiting Anderson's economic damages to the terms of her expected contract. In Skagway City School Board v. Davis we addressed the question of whether a wrongfully discharged employee could collect damages for injury to his reputation and impairment of his future earning capacity. We stated: The normal rule is that a wrongfully discharged 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. Beyond this the employee is not permitted recovery for injury to his reputation.! [ ] We explained that [tlhe primary reasons underlying [this] rule are that (1) the computation of damages for injury to reputation is unduly speculative, and (2) such damage [to reputation and future earning ability] cannot reasonably be presumed to have been within the contemplation of the parties when they entered into the contract.[ ] The question of Anderson's economic damages is much like the one presented in Skag-way. In Skagway, the defending school board had given the plaintiff a three-year contract to serve as superintendent. After two years, performance-related charges against the plaintiff led the school board to refuse to renew his contract for a third year. Although the plaintiffs expert witness testified that this discharge would prevent the plaintiff from obtaining future employment as a school administrator and that it would negatively impact his future earning capacity, we limited the plaintiff's damages to those flowing from the rest of his promised term of employment (another year), minus what he was able to earn in mitigating damages during that time. This court made a similar finding in the context of a promissory estoppel claim in Alaska Democratic Party v. Rice. There, we upheld a jury's finding that a prospective employee who was promised a two-year contract with the possibility of renewal for an additional two years was entitled to only the promised two years of salary, less what she was able to earn in alternative employment during that period. In our view Skagway and Rice control the present case and serve to limit Anderson's lost earnings damages. We recognize that cases may exist where the specific term of an employment contract should not limit lost earnings damages. But Anderson was to occupy a new position in a new company created by a new government program, allocating shares in a volatile industry. Thus this case presents no reason to consider an exception to the rule expressed in Skagway that damages for the breach of an employment contract are limited to the unexpired term of the contract. Anderson also argues that the one-year term of her expected contract should not limit her lost earnings because she could have sought lost earnings as a part of her successful defamation claim. This argument fails. The jury made no award for lost earnings based on Anderson's defamation claim, nor was it asked to do so. C. The Trial Court Properly Upheld the Jury's Finding of Punitive Damages. Due to Anderson's successful defamation claim against the Association and Merculief, the jury awarded Anderson $15,000 for emotional distress, $20,000 for reputational harm, and punitive damages totaling $400,000 against the Association and $200,000 against Merculief. The Association and Merculief argue that because of improprieties in Anderson's closing statement, the trial court's instruction of the jury on punitive damages caps, and the "excessive" nature of the punitive awards, this court should vacate the jury's punitive damages awards and order a new trial on that issue. We disagree and affirm the jury's awards of punitive damages. 1. Anderson's discussion of corruption in closing argument was not improperly prejudicial. The Association and Mereulief contend that Anderson's focus in closing argument on punishing the company's corruption was improper and that her closing should have instead focused on punishing the defamatory statements that harmed Anderson. We disagree with appellants' assertion that Anderson's closing statement was improper in this regard. The jury in this case could have found that the motive behind the Association's and Mer-culiefs defamatory statements was that of covering up corruption. We agree with Anderson's argument that the Association and Merculief had a large financial stake in hiding any misconduct. Had the state found reason to investigate financial misappropriations occurring within the Association, the company could have lost its "highly lucrative CDQ allocation." Indeed, Mereulief made a defamatory statement to Glenn Haight, CDQ manager for the state. Haight testified in deposition that Mereuliefs allegations that Anderson had falsely accused him and that she had personally and professionally threatened other colleagues led him to conclude that the state should take a "hands off" approach and not investigate. Thus there was evidence that Merculief and the Association used defamation to hide their misconduct and to safeguard their reputations and their CDQ allocation. The existence of corruption within the Association was therefore an important part of Anderson's theory of defamation, and Anderson's counsel appropriately addressed it in closing argument. 2. The trial court's instruction on statutory damages caps was harmless error. Because the defamatory conduct at issue here took place in 1998, the jury's award of punitive damages is governed by AS 09.17.020. This statute limits punitive damages awards to the greater of three times compensatory damages or $500,000. Subsection (g) of the statute allows an increased award of up to $7,000,000 if "the fact finder determines that the conduct proven was motivated by financial gain and the adverse consequences of the conduct were actually known by the defendant or the person responsible for making policy decisions on behalf of the defendant." The statute is silent as to whether the court should inform the jury of the statutory caps or the legal significance of their findings as to motivation. Here, over the Association's and Mereu-lief's objection, the trial court instructed the jury that they could award a maximum of $500,000 in punitive damages, unless they answered "yes" to special verdiet form questions 1 and 2-asking separately whether each defendant was motivated by financial gain and knew the adverse consequences of its conduct-in which case the jury could award up to $7,000,000 in punitive damages. The jury answered "yes" to both questions 1 and 2 of the special verdict form, and awarded punitive damages of $400,000 against the Association and $200,000 against Merculief. The Association and Merculief argue that, by informing jurors of AS 09.17.020's damages cap provisions, the trial court infringed on their constitutional right to a jury trial on punitive damages. The Association and Merculief assert that article I, section 16 of the Alaska Constitution guarantees them the right to a jury trial to the extent that that right existed at common law, and that the trial court, by informing the jury of the applicable damages caps, interfered with the jury's ability to independently calculate, and ultimately to decide, that issue. They support their position by citing to a number of state court decisions that have found compensatory damages caps unconstitutional under their state constitutions. Other states that have found caps constitutional have done so based on an assumption that the caps will be employed by the trial judge after the jury calculates its award of damages independent of the caps. Subsequent to the briefing in this case we resolved the question of whether the punitive damages caps of AS 09.17.020 are constitutional. In Evans v. State we held that the punitive damages caps are constitutional and do not infringe on the right to trial by jury. That holding controls here. But Evans did not resolve the question whether it is appropriate-or constitutional-to instruct a jury as to the existence and the amount of the caps. We proceed to address that question. The trial court here responded to qappellants' objection to the cap instruction by giving the following instruction: In giving these instructions to guide you on how punitive damages are to be determined, the court does not intend to express any opinion as to how much money for punitive damages you should award. You may not assume that because the court identifies ranges of damages or explains how to measure the damages that you are required to make an award of a particular amount of punitive damages. The amount of punitive damages to award is entirely within the purview of you, the jury. As Anderson correctly notes, we "presume that a jury follows the trial court's instructions." Anderson contends that because the trial court instructed the jury not to use the caps as a gauge for an appropriate award, we should assume that the jury refrained from doing so. We agree with the appellants that instructing the jury on the punitive damages caps was error. Putting the caps before the jury carried a substantial risk of suggesting the range of appropriate punitive awards. Moreover, no countervailing benefit could be gained from the instruction. However, we find that under the cireumstances of this case the error does not warrant reversal. Three factors lead to this conclusion. First, this is an issue of first impression in Alaska, and no clear guidance has been available on the issue. Second, the instruction quoted above warned the jury against drawing suggestive inferences from the caps and we normally presume that a jury follows such instructions. And third, the fact that the jury awarded punitive damages totaling $400,000 against the Association and $200,000 against Merculief-when their findings as to financial motivation and actual knowledge entitled them to award up to $7,000,000 against each-indicates that the jury did not improperly adjust its award of punitive damages based on the caps instruction. 3. The trial court did not err in refusing to remit the jury's punitive damages awards for excessiveness. The trial court instructed the jury to consider the statutory factors set forth in AS 09.17.020(c) in its calculation of punitive damages. Alaska Statute 09.17.020(c) provides that in determining punitive damages, a fact finder may consider: (1) the likelihood at the time of the conduct that serious harm would arise from the defendant's conduct; (2) the degree of the defendant's awareness of the likelihood described in (1) of this subsection; (3) the amount of financial gain the defendant gained or expected to gain as a result of the defendant's conduct; (4) the duration of the conduct and any intentional concealment of the conduct; (5) the attitude and conduct of the defendant upon discovery of the conduct; (6) the financial condition of the defendant; and (7) the total deterrence of other damages and punishment imposed on the defendant as a result of the conduct, including compensatory and punitive damages awards to persons in situations similar to those of the plaintiff and the severity of the criminal penalties to which the defendant has been or may be subjected. The Association and Merculief argue that neither these statutory factors nor common law factors support the jury's punitive damages awards in this case. We disagree and find that under the circumstances of this case, the punitive damages awards upheld by the trial court were not excessive. a. The Association and Merculief were aware of the high likelihood that their conduct would cause Anderson serious harm. With respect to the first and second statutory factors, we believe that a jury could reasonably find that the Association's and Merculief®'s defamation of Anderson were likely to, and did, cause Anderson serious harm, and that the Association and Merculief must have been aware of this harm. Appellants attempt to minimize the harm suffered by Anderson, while ignoring her severe career and reputational losses. After Anderson reported Mereulief's misdeal-ings, Merculief and the Association board spread vicious lies about Anderson, accusing her of stalking Merculief and of personally and professionally threatening colleagues. The evidence supports the conclusion that the appellants made these statements deliberately, in order to "get rid of" Anderson, destroy her credibility, and hide the extent of ongoing financial misappropriations within the company. In addition, the jury found that the Association and Mereulief both acted with financial motives and actual knowledge of the harm that their actions would cause. Whether or not Anderson is able to recoup her financial losses in her new career as a barrister, the Association and Merculief effectively shut her out of the career and field that she had chosen. The trial court was within its discretion to consider this a serious and deliberate harm. b. Appellants' conduct was motivated by substantial financial gain. With respect to the third statutory factor, evidence demonstrating that the Asso ciation and Mereulief expected their behavior to result in financial gain, or at least avoidance of substantial financial loss, supports the jury's finding as to the appellants' motive. Haight, the state director of the CDQ program, testified that Mereulief®s statements to him about Anderson, her past, and her "false allegations" convinced him not to investigate the allegations of corruption in the Association. Had the state investigated, the Association could have lost its percentage of the CDQ allocation. According to Anderson: At $228,000 per percentage point of allocation, [the Association] stood to lose a considerable sum if its allocation were reduced. Direct benefits to [the Association's] board members in the form of loans and grants were in the hundreds of thousands of dollars, and administrative, per diem, and travel expenses were substantially in excess of guidelines used for non-profit grants by the state and federal government for an entity of its size. Were the financial misconduct and self-dealing of its board members revealed through Anderson's actions, [the Association] would have been subjected to stricter serutiny from both state and federal agencies, and the board members stood to lose the lucrative benefits they were providing to themselves. We conclude that there was more than enough evidence here to support the jury's finding of a financial motive. c. The Association's and Merculief's behavior upon discovery of their conduct warrants a large punitive damages award. As to the fourth and fifth factors, while the short duration of the appellants' conduct does not weigh in favor of great punitive damages, their attitude and conduct toward Anderson upon her report of their misconduct does. Merculief's response to Anderson's concerns about his misconduct was to deny the misconduct or to blame Anderson for his own misappropriations. In addition, there is evidence that after it became apparent that Mereulief had misappropriated money from the Association, he resisted attempts to collect past overpayments made to him and continued to engage in financial improprieties. Merculief eventually resigned from his presidency after repeated pressure to halt his misappropriations. The board, meanwhile, seemed to do its best to avoid dealing with Anderson's concerns about Mereulief, When the board did commission an audit to investigate, it designed the audit to be as narrow as possible and failed to address broader issues of potential financial misdealing identified by Anderson as areas of concern. Further, the evidence indicates that the board's behavior toward Anderson did not change after it discovered that Anderson's concerns about Merculief were well-founded. Even during trial, a board member continued to blame her for being disloyal and falsely accusing Mer-culief. This board member continued to assert that Merculief had done nothing wrong. Although the board did attempt to collect from Mereulief the amounts that he had misappropriated, it did not follow through with these attempts. In fact, it voted to indemnify Mereulief for the punitive damages awarded against him. These behaviors indicate an individual and an organization unwilling to admit the misconduct they engaged in or the harm they inflicted upon their employee. d. The Association's and Merculief's financial conditions do not call for a reduction of the punitive damages. As to the sixth statutory factor, consideration of appellants' financial condition need not reduce the jury's punitive damages awards. While the ratio of punitive damages awarded against Mereulief individually $200,000-to Mereulief's annual salary at the time-$70,000-may be high in relation to ratios found in previous cases, the jury here knew that the board had voted to indemnify Merculief for any punitive damages assessed against him. The jury's award, then, would have no impact on Mereulief's finances. As for the Association, the company is a nonprofit organization and thus earns no profits; however, the Association conceded that its unrestricted assets are an appropriate measure of its wealth. The Association's unrestricted assets in 1999 totaled $4.5 million. The company argues that not all of its unrestricted assets were truly uncommitted at the time of trial and that the court ought to use its actually unrestricted assets of approximately $1.5 million in assessing punitive damages; however, using the stated $4.5 million figure seems at least equally appropriate. Comparing the jury's $400,000 punitive damages award against the Association with the company's stated unrestricted assets at the time of trial, we find that the award was only 8.9% of the Association's unrestricted assets. We have previously upheld punitive damages awards that constituted a greater percentage of a defendant's assets. Thus, the jury's awards here were not excessive on grounds of appellants' financial condition. e. Considerations of deterrence, past punitive awards, and common law factors support the jury's awards of punitive damages. Finally, the seventh statutory factor, examining "the total deterrence of other damages and punishment imposed on the defendant . including compensatory and punitive damages awards to persons in situations similar to those of the plaintiff," encompasses the appellants' concern for common law factors in assessing punitive damages. In comparing this jury award to those of past cases, the Association and Merculief treat the two punitive damages awards here as one award of $600,000 against the Association and point out that this court has only once allowed a punitive damages award larger than $600,000. We note, however, that this does not mean that the jury's award here was excessive. Indeed, if we examine the awards as they were made-one award of $400,000 and one of $200,000-we see that case law supports awards of this magnitude. The Association and Mereulief also argue that we should look for guidance to the United States Supreme Court's three guideposts for determining whether punitive damages awards are excessive: (1) the egregiousness of the conduct at issue, (2) the relation between the actual damages and the punitive award, and (3) whether the defendant received fair notice from statutes or previous cases that it could be subject to a punitive award of the magnitude in issue. We agree and proceed to do so. First, as discussed above, the appellants' deliberate use of defamatory statements to "get rid of" Anderson and to push her out of her chosen career and industry reasonably constituted egregious misconduct. Next, although AS 09.17.020 creates a normal ratio of 3-to-1 for the relationship between punitive and compensatory damages awards, this court has never enforced a specific ratio with regard to such awards. The statute itself clearly allows awards departing from the 8-to-1 ratio. Moreover, this court has upheld several punitive damages awards where the ratio of punitive to compensatory damages was greater than 3-to-1. In Pluid v. B.K., we upheld a punitive to compensatory ratio of 5-to-1. In Era Aviation, Inc. v. Lindfors, we allowed a ratio of 10-to-1. We upheld a 48.83-to-1 ratio in Norcon v. Kotowski. As we noted in Cameron v. Beard, "[this court has refused to prescribe a definite ratio between compensatory and punitive damages. Though comparing punitive and actual damage awards is one way to determine if punitive damages are excessive, other factors . are equally important to the determination." Here, the jury awarded compensatory damages totaling $35,000 on Anderson's defamation claim and Anderson will be entitled to approximately $13,000 for lost wages. The jury's punitive awards of $400,000 and $200,000 result in ratios of 8.38-to-1 and 4.16-to-1 respectively. Given the Association's and Mereuliefs conduct and motives in this case, we find that those ratios are not excessive. Finally, as to the United States Supreme Court's last criterion, the Association and Merculief did have notice that they could be subject to punitive damages awards of the magnitude here. We have upheld awards of this magnitude and greater in the past. Further, AS 09.17.020 imparts notice that punitive damages may be awarded for malicious acts and that awards of up to $7,000,000 may be permitted where the acts are motivated by financial gain and committed with knowledge of their consequences. Thus, while the jury's awards of punitive damages against the Association and Mereu-lief are relatively high, they are not beyond sustainable limits according to statute, common law, or- constitutional standards. Viewed deferentially or de novo, we conclude that the trial court did not err in upholding the jury's determination of punitive damages. IV. CONCLUSION Based on the foregoing reasons, we order that the award of lost earnings be reduced in accordance with this opinion, and we affirm the punitive damages awards. REVERSED in part and AFFIRMED in part. FABE, Chief Justice, not participating. . See Bandow v. Bandow, 794 P.2d 1346, 1347 n. 3 (Alaska 1990). . See Alaska Tae Woong Venture, Inc. v. Westward Seafoods, Inc., 963 P.2d 1055, 1061-62 (Alaska 1998); Ben Lomond, Inc. v. Schwartz, 915 P.2d 632, 636-37 (Alaska 1996). . See State v. Gilbert, 925 P.2d 1324, 1326-27 (Alaska 1996). . See Stinson v. Holder, 996 P.2d 1238, 1244 (Alaska 2000); Chenega Corp. v. Exxon Corp., 991 P.2d 769, 775 (Alaska 1999). . See Era Aviation, Inc. v. Lindfors, 17 P.3d 40, 48 n. 40 (Alaska 2000); IBEW, Local 1547 v. Alaska Util. Constr., Inc., 976 P.2d 852, 855 (Alaska 1999). . 532 U.S. 424, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001). . The superior court instructed the jury that the elements of the constructive retaliatory discharge claim were that the Association made Anderson's working conditions intolerable because of her reports that Merculief was misusing corporate assets and that the conditions were so intolerable that a reasonable person in her position would have felt compelled to resign. . The court instructed upon the following elements as to Anderson's promissory estoppel claim: 1. The defendant made a promise to the plaintiff; 2. The defendant expected or reasonably should have expected that the promise would cause plaintiff to act; 3. In reliance on the defendant's promise, the plaintiff acted, thereby substantially changing her position; and 4. Justice requires enforcement of the defendant's promise. The special verdict form reduced the inquiry to two questions: "Did [the Association] promise Susan Anderson a contract of employment?" and "Did [the Association] break its promise to provide Susan Anderson a contract of employment?" . The Association raised these contentions in a mid-trial motion for partial directed verdict, in proposed jury instructions, and in a renewed motion for directed verdict made at the end of the trial. . Luedtke v. Nabors Alaska Drilling, Inc., 834 P.2d 1220, 1226 (Alaska 1992) (citation omitted). . Anderson based her calculations on an annual salary of $60,000 with the Association and an annual salary of $45,000 with Bank of America. She adjusted the figures for a seven percent net Social Security tax and found that one year's lost wages were equal to $13,115. . 543 P.2d 218, 224-28 (Alaska 1975), overruled on other grounds by Diedrich v. City of Ketchikan, 805 P.2d 362 (Alaska 1991). . Id. at 225 (citing 5 Artur L. Corsin, on Contracts § 1095 (1964)). . Id. . Id. at 220. . Id. . Id. at 225-28. . 934 P.2d 1313 (Alaska 1997). . Id. at 1320-21. . Future economic damages are barred, not only by the clearly implied contract terms in this case, but also by Anderson's failure to offer evidence sufficient to accurately calculate future damages. This court has found that "(aln award cannot stand . if the amount is the result of speculation," and that "a plaintiff alleging breach of contract must present evidence sufficient to calculate the amount of the loss caused by the breach." City of Whittier v. Whittier Fuel & Marine Corp., 577 P.2d 216, 222 (Alaska 1978); Ben Lomond, Inc. v. Schwartz, 915 P.2d 632, 636 (Alaska 1996) (citing City of Palmer v. Anderson, 603 P.2d 495, 500 (Alaska 1979). See also 48 AmJur 20, Proof of Facts § 18 (2001) ("Furthermore, damages for future losses must be reasonably certain of calculation and cannot be based upon speculation or conjecture."). Anderson argues that three experts at trial adequately addressed the issue of future damages. She notes that she called both a vocational rehabilitation specialist/labor market analyst and an economist as experts to evaluate her post-termination options. However, those experts' use of Anderson's job at Bank of America to offset some future damages was not only speculative, but ignored reality. 'By the time of trial, Anderson no longer worked at Bank of America and instead had returned to school to become a barrister in Australia. Anderson's economist testified that her future income was "very speculative" and that she might make more money in her career as a barrister than she would have made if she had stayed at the Association. In addition, Anderson's rehabilitation counselor provided no factual data to substantiate his hypothesis that Anderson would have a lifetime earning loss in her new field despite the potential for higher annual earnings. . See, e.g., Allen v. Cornish & Carey, 1997 WL 195433, at *6-*7 (N.D.Cal., Apr.11, 1997) (lost future earnings under specified term contract not limited to term where there had been a long series of such contracts). . The Association and Merculief also contend that Anderson's closing argument was prejudicial because Anderson's counsel exhorted the jurors to "do their job" and asked them to consider broad societal issues outside the scope of the evidence. However, appellants failed to object at trial to Anderson's closing on this ground; thus, they failed to preserve their right to object on that ground here. We consider their argument waived. See Jenkins v. Handel, 10 P.3d 586, 592 (Alaska 2000). . See, e.g., Moore v. Mobile Infirmary Ass'n, 592 So.2d 156, 159-62 (Ala.1991), reh'g denied, (Jan. 3, 1992); Best v. Taylor Mach. Works, 179 Ill.2d 367, 228 Ill.Dec. 636, 689 N.E.2d 1057, 1076 (1997); Morris v. Savoy, 61 Ohio St.3d 684, 576 N.E.2d 765, 770-71 (1991); Lakin v. Senco Prods., Inc., 329 Or. 62, 987 P.2d 463, 467-75 (1999); Sofie v. Fibreboard Corp., 112 Wash.2d 636, 771 P.2d 711, 720-23 (1989), reconsideration denied, (Sept. 27, 1989). . See, e.g., Boyd v. Bulala, 877 F.2d 1191, 1195-96 (4th Cir1989); Kirkland v. Blaine County Med. Ctr., 134 Idaho 464, 4 P.3d 1115, 1120 (2000); Murphy v. Edmonds, 325 Md. 342, 601 A.2d 102, 116-18 (1992); Adams v. Children's Mercy Hosp., 832 SW.2d 898, 907 (Mo.1992) (en banc); Wright v. Colleton County Sch. Dist., 301 S.C. 282, 391 $.E.2d 564, 569-70 (1990); Ether idge v. Med. Cir. Hosps., 237 Va. 87, 376 S.E.2d 525, 528-29 (1989). . - P.3d -, 2002 WL 1998141, Op. No. 5618 (Alaska, August 30, 2002). . Knix v. State, 922 P.2d 913, 923 (Alaska App. 1996). . See Michael S. Kang, Don't Tell Juries About Statutory Damage Caps: The Merits of Nondisclosure, 66 U. Chi. L.Rev. 469, 483-86 (1999) (Effect of statutory cap is that "juries might 'anchor' their deliberations to that amount.... [Juries that know about a limit on damages tend to make awards that are significantly closer to that figure than juries that do not know about the limit. . [Another] effect of disclosure of statutory caps is the scaling effect. Research suggests that people tend to use the range of proffered response alternatives as a frame of reference for estimation tasks."). . We see no need, however, to cloak this type of error in constitutional terms. . See Knix, 922 P.2d at 923; cf. Simms v. State, 464 P.2d 527, 527-28 (Alaska 1970). But see Kang, supra note 27. . Appellants cite the following cases involving what they believe to be more serious harm than is present here: IBEW, Local 1547 v. Alaska Util. Constr., Inc., 976 P.2d 852, 858-59 (Alaska 1999) (defendant repeatedly threatened and intimidated plaintiff, but punitive damages remitted to $212,500); Norcon, Inc. v. Kotowski, 971 P.2d 158, 163, 174-77 (Alaska 1999) (defendant sexually harassed plaintiff, who became so scared she slept in a car, but punitive damages limited to $500,000); Sturm, Ruger & Co. v. Day, 594 P.2d 38, 41, 48-49 (Alaska 1979), modified, 615 P.2d 621, 624 (Alaska 1980) (defendant seriously physically injured plaintiff, but punitive damages limited to $500,000), partially overruled on other grounds by Dura Corp. v. Harned, 703 P.2d 396, 405 n. 5 (Alaska 1985). . We generally give deference to the jury's findings of fact. See Borchgrevink v. Borchgrevink, 941 P.2d 132, 142-43 (Alaska 1997). . Appellants cite Norcon, 971 P.2d at 174-76 (ordering remittitur where jury award equaled three years of defendant's income). . See, e.g., IBEW, Local 1547, 976 P.2d at 859 (affirming remittitur where award equaled 25% of defendant's net worth and upholding reduced award equal to 12.5% of defendant's net worth). . AS 09.17.020(c)(7). . See Alaska Ins. Co. v. Movin' On Constr., Inc., 718 P.2d 472, 475 (Alaska 1986) (adjusting punitive damage award to $690,652.50 after reducing compensatory damages to sustainable amount of $230,217.50 to carry out jury's desire to award three times compensatory damages). . See, eg., Norcon, 971 P.2d at 174-77 (upholding punitive damages of $500,000); Sturm, Ruger & Co., 594 P.2d at 48-49, modified, 615 P.2d at 624 (upholding punitive damages of $500,000), partially overruled on other grounds by Dura Corp., 703 P.2d at 405 n. 5. . See BMW of N. America, Inc. v. Gore, 517 U.S. 559, 574-75, 116 S.Ct. 1589, 134 LEd.2d 809 (1996). . As noted above, under Cooper Industries, Inc. v. Leatherman Tool Group, Inc., we review de novo the question whether punitive damages are grossly excessive and thus unconstitutional under the due process clause of the Fourteenth Amendment. 532 U.S. 424, 435, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001) (""the question whether a fine is constitutionally excessive calls for the application of a constitutional standard to the facts of a particular case, and in this context de novo review of that question is appropriate") (citations omitted). In Cooper, the United States Supreme Court discussed the elements of the relevant constitutional inquiry: [Clonstitutional violations [due to excessive fines] [are] predicated on judicial determinations that the punishments [are] grossly disproportional to the gravity of defendants' offenses. We have recognized that the relevant constitutional line is inherently imprecise, rather than one marked by a simple mathematical formula. But in deciding whether that line was been crossed, we have focused on the same general criteria: the degree of the defendant's reprehensibility or culpability; the relationship between the penalty and the harm to the victim caused by the defendant's actions; and the sanctions imposed in other cases for comparable misconduct. Cooper, 532 U.S. at 434-35, 121 S.Ct. 1678 (citations and quotations marks omitted). . Subsection (f) limits punitive damages to the greater of $500,000 or an amount three times the compensatory award. And subsection (g) provides an even greater cap-$7,000,000-for cases such as this one, where the jury found a motive of financial gain and actual knowledge of the consequences of the appellants' conduct. AS 09.17.020(8, (g). . 948 P.2d 981, 984-85 (Alaska 1997). . 17 P.3d 40, 43, 49 (Alaska 2000). . 971 P.2d 158, 161, 177 (Alaska 1999). . 864 P.2d 538, 551 (Alaska 1993) (internal citations omitted). . See supra notes 35 and 36.

10444884

Jerry STANSEL, Appellant/Cross-Appellee, v. PERINI ARCTIC CONSTRUCTION, INC., Appellee/Cross-Appellant

Stansel v. Perini Arctic Construction, Inc.

1980-09-26

Nos. 4330, 4407

14

16

617 P.2d 14

617